We Family Layers are often asked by clients, “Is it ok to make audio or video recordings of how my ex-partner behaves when we are handing over the children. Can I use that in Court?”
A related question is whether secret recordings by a parent of the other parent’s conversations with the children are admissible as evidence.
A recent Federal Circuit Court case, decided in May 2019, has shed some light on these questions. In that case, called Coulter and Coulter (not their real names), a father had applied to exclude:
- video recordings made by the mother of the mother and the father when he went to her home for hand overs of the children; and
- audio recordings of conversations between the father and the children about the time they were spending with the father. The video was taken via a Messenger Application on the children’s iPods. The mother was not involved in the audio recordings. Both the video and the audio recordings were made without the knowledge or consent of the father.
The background of the case was that the mother claimed that she had been subjected to physical violence and coercive and controlling behaviour by the father. One of the children was living with the father and had had no contact with his mother for a considerable time.
As to the video recordings of the hand overs of the children, the Court held that it was not improper for the mother to have secretly made those and that they could be included in the evidence before the Court. The Judge said – “Hand overs occur in circumstances where the mother has a legitimate interest in her personal safety, welfare and preventing the children from being exposed to conflict and unpleasantness between the parties.”
Regarding the conversations with the children and their father, the Judge decided that the mother should not have recorded those because they involved “A significant breach of trust with respect to the children, who are entitled to privacy in their conversations with their father irrespective of any motive he may have had to enlist them in his dispute with the mother … The relationship between a parent and a child could be significantly compromised if a parent could not communicate freely with a child without fear of being covertly recorded.”
The mother was not allowed to use the audio recordings in her Court case.
So, be careful what you record.