It is not unusual in parenting matters that involve conflict for either or both parents to record the other, particularly at changeovers.
The question often arises – can such recordings be used in court proceedings?
In a recent Federal Court case, Judge Heffernan heard a father’s application to exclude the mother’s video recordings of the father.
The recordings at the centre of the application, were made in secret by the mother. Some were of changeover and the others were recordings of conversations between the father and the two children.
The Federal Circuit Court exercising in the Family Law jurisdiction has discretion under the Evidence Act 1995 (Cth) to exclude evidence if the value of what the evidence will show is outweighed by the risk of prejudice. This means that improperly obtained evidence should be excluded unless the desirability of admitting it outweighs the undesirability of doing so.
Judge Heffernan found in this case that it was not improper for the mother to make video recordings of the changeovers, in circumstances where she had a legitimate concern for her personal safety, even having regard for the secrecy in which the recordings where made. It was found that the recording of the changeovers was not contrary to any relevant Australian Law and should be admitted in evidence.
The recordings of the private conversations between the father and the children, however were considered inadmissible by the court. In relation to those recordings, the mother was not able to convince the court of the importance of admitting the evidence, which was relevant to mothers’ case of parental alienation, outweighed the children’s right to have private conversations with their father.
The important message for clients to take home from this case is to remember that with technology at our finger tips, you are always at risk of being recorded and you should not do or say anything that you would not be happy for a judge to see.
