Parenting proceedings under the Family Law Act often involve high levels of acrimony between the parties involved. As children are increasingly equipped with smart devices and recording devices, it is unsurprising that often parties seek to adduce evidence obtained privately, without the consent of the parties involved. The recent case of Coulter & Coulter (No. 2) [2019] considered whether both audio and video recording covertly recorded could be used in evidence.

A mother who was experiencing family violence set up hidden video and audio recording devices. The father sought to exclude certain evidence that the mother proposed to introduce at trial including two video recordings of interactions between the father and mother on two separate occasions and two audio recordings of conversations between the father and the children. The mother had set up a video recording device in the hallway of her home and appeared to obtain the audio recordings via a KIK message application on the children’s iPods.

Applications to exclude evidence on the basis identified above are dealt with by s 135 and 138 of the Evidence Act 1995 (Cth). Section 135 deals with the general discretion to exclude evidence if it is unfairly prejudicial to a party, is misleading or if the material would result in an undue waste of time. Under section 138, improperly or illegally obtained evidence will not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.

Video recordings:

It was held in this case that it was not improper for the mother to make the videos of the handovers without the father’s knowledge or consent. The Court noted that handovers occur in circumstances where the mother has a legitimate interest in her personal safety, welfare and in preventing the children from being exposed to conflict between the parties. At the time of the video recordings, the mother had ongoing concerns about the father’s apparent obsessiveness and his abusive, controlling behaviours and past episodes of violence. The mother was also in the process of obtaining an intervention order against the father. It was held that it was not improper to secretly record the video recordings and it was held that this was not contrary to a relevant Australian law.

Audio recordings:

However, the audio recordings were held to be inadmissible because they contravened Australian law and were obtained for the purpose of protecting the mother’s interests. The Court highlighted that it was improper for the mother to make secret audio recordings of private conversations between the father and the children. This involved a significant breach of trust with respect to the children, who were entitled to privacy in their conversations with their father and this also contravened the Listening and Surveillance Devices Act (1972).

Therefore, whether a recording will be admissible as evidence will depend on the individual circumstances of the case and its compliance with the relevant law. The Court noted that the ubiquity of smart phones means that every person potentially has a tracking device in their pocket. If the Court were to readily admit evidence otherwise improperly or illegally obtained, this would lead to a tendency for parties to engage in widespread covert recording and potentially erode the element of privacy necessary in any meaningful relationship between a parent and child. Through recognising the public policy behind state law which makes it prima facie illegal to covertly record a private conversation, the Court did not give its imprimatur to any conduct by the parties which encouraged animosity between the parties.