To Record or Not to Record; Is It Evidence?

You may find yourself in a situation where a parent is attempting to alienate the children from you. This can occur during communication and time spent between the children and yourself, either on a mobile or another device. Should you record or not record that communication let’s know more about it in detail.

It can be very frustrating to co-parent with another whom is constantly undermining the relationship between yourself and the children. The other parent who is undermining you, will often deny that they are behaving inappropriately. This behaviour includes intentionally interrogating the children about your personal life, or speaking derogatively about the you, your family or friends. Some parents may even go to the extent of bribing and coaxing the children with impossible gifts. There have also been previous incidents were the parent is threatening the children, causing the children great fear and anxiety.

It can be very tempting to use recording apps on the device being used in communication between the children and yourself. You may believe these apps are a way to provide evidence of the other parent’s obnoxious behaviour, however this is not child focused and may cause serious psychological harm.

The authorities state clearly, that you cannot record a private conversation between the children and another parent.  Nor can you record a conversation between yourself and another person without their consent or knowledge.  The Evidence Act 1995 (Cth) provides an exemption for the Police and other government authorities, when it is in the best interests and security of the general public.

The Court also has the general discretion to exclude evidence, which is likely to be:

  • unfairly prejudicial to a party;
  • misleading or confusing; or
  • cause or result in undue waste of time. (Section 135 Evidence Act).

However, the law does take overwhelming circumstances into consideration. Section 138 of the Evidence Act provides an exemption, which was explained in Coulter & Coulter (No 2) [2019] FCCA 1290: to allow improperly gained evidence if the desirability of the evidence outweighs the undesirability of evidence that has been obtained contrary to the act.

Personal Safety is a Priority, Call 000

If you are fearful of the threats and abusive behaviour at changeovers, your immediate personal safety is a priority. You also have the added stress and responsibility to try and protect the children from psychological and physical harm, caused by witnessing the other parents abusive and threatening behaviour. Video evidence can sometimes be admitted at the discretion of the Judge.

If your personal safety, or that of your children, pets, or property are in immediate danger, ring 000. Retreat to a safe place, do not hesitate or waste time attempting to record the abuse. If you are in a public place the incident will be captured on CCTV.

If you have personal security at your home or complex, that can be used to provide evidence of facts and events, that may be in your favour as the other parent may strongly deny and object to the incident as being your imagination. There are strict procedural requirements for presenting video evidence. If this is not followed, it could be very damaging to your case. There are options which can assist presenting evidence to support the undisputable truth in relation to the other parents abusive, damaging and obnoxious behaviour.

If you require further assistance or have any questions, please contact our Gold Coast or Logan office to speak with one of our Family Lawyers for free 15 minutes of telephone advice.

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