Should I secretly record my children to gather evidence for my Family Court matter?
It can be tempting for parents to simply press record on a device to record their children to obtain evidence for their Family Court matter. Solicitors are increasingly receiving instructions from clients to tender secret recordings into evidence in their Family Court proceedings.
The question then is, firstly, whether the Court will accept the evidence, and secondly, whether the evidence will be in your favour.
Is it legal to record my children?
In Western Australia, the Surveillance Devices Act 1998 (WA) prohibits the installation or use any device to record, monitor or listen to a private conversation.
The Commonwealth Evidence Act 1995 allows illegally obtained recordings to be admitted into evidence only when the desirability of its admission outweighs the undesirability of how it was obtained.
This means that the Court will consider, on a case by case basis, whether it ought to permit the use of illegally obtained recordings in the specific Court proceedings that the Court is dealing with at the time.
How does the Court view the recording?
Although there have been cases where the secret recordings of children were admissible, the general view has been to view such recordings negatively. This often leads to it being detrimental to the party who has made the recordings and then attempted to use these in Court.
For example, where one parent has recorded their child expressing a view about the other parent, the Court could consider this conduct as demonstrating a significant lack of insight by the parent making the recording.
You need to remember also, that when recordings are being made, the person making the recording is undoubtedly behaving in a specific way, to appear more favourable in the recordings.
There have been many cases where parents have been tempted to tender the recordings of their children into evidence, however the evidence proved to be detrimental to their case.
For example, in the case of Farrelly v Kaling 2012 FMCAfam 210, the Father attempted to tender over 70 recordings of the children to the Court. The Court found that the father had staged many of the recordings and determined that the recordings reflected poorly on the Father and his character. There was also other evidence given as to the negative impact on the children regarding the content of the conversations.
In the case of Simmons & Simmons 2013 FCCA 304, the Mother planted a recording device on the children before they spent time with their Father. Although the Court allowed the evidence to the tendered, the Judge heavily criticised both parents for doing so. The Judge stated that although the father did in fact act in a way that was inappropriate, the Mother’s actions in sending the children for supervised visits with recording equipment was similarly appalling behaviour. He further stated that the “actions of both these parents are at best naïve and at worst a form of child abuse. In this case they are equally culpable.”
Are there any exceptions?
The Surveillance Devices Act 1998 (WA)(“SDA”) makes it abundantly clear that the principal rule is that a person must consent to be recorded and if this consent is not obtained, any recording will therefore be illegal.
However, there are also circumstances in which audio recordings will be legal and therefore admissible in the Family Court. An audio recording may be admitted into evidence if the desirability of its admission outweighs the undesirability of how it was obtained.
In the recent case of Shelbourne & Shelbourne  FamCA 761, the Father had recorded several videos using his mobile phone tender and his solicitors were successful in tendering video recordings into evidence.
Although the SDA makes it an offence to record a person, section7(3)9b0(i) states that:
(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party
As there were allegations of abuse from both parties, the Court held that the interests of using the evidence in assisting the Court to determine appropriate parenting arrangements for the children involved outweighed any potential prejudice to the Mother.
The Family Court considers much more than just the legality of the recording when determining whether the evidence is admissible. It is therefore important to keep in mind that when you record your children for evidence, it may be illegal, and highly inappropriate. Further the Court could view your conduct as exposing your child to family violence.
For further information on this topic, and for specific legal advice please contact us Perth Family Lawyers to arrange an appointment. Our lawyers are highly skilled in providing advice and guidance in these matters. Call us today on (08) 9325 8675 or email us via our Contact Page and arrange an interview with one of our professional staff.