In the case of Coulter v Coulter (No 2) [2019] FCCA 1290 (15 May 2019), a Mother, concerned that the Father was tactically alienating at least one of their children from her and apprehensive of her own safety, secretly video and audio recorded the Father, without his knowledge.

On two separate occasions, using a video recording device placed covertly in the hallway of her home, the Mother secretly filmed the children’s change over with the Father. The Father had past episodes of violence and the Mother hoped to use the video recordings as evidence of the Father’s ‘abusive, coercive and controlling behaviours in an application for an intervention order.
On another two separate occasions, the Mother in an unknown manner, audio recorded what appeared to be private telephone conversations between the children and the Father.

Were these secret recordings obtained improperly or illegally?
If the recordings obtained improperly or in contravention of the relevant law, they cannot be used as evidence by the Mother. The law prohibits a person recording private conversations without the consent of the other party. The only exception is if the recordings were in the public interest or for the protection of the lawful interest of the Mother.

Did the Mother obtain these covert recordings improperly and illegally?
Judge Heffernan found the audio recordings were not admissible as they were obtained improperly and illegally, whilst the video recordings were admissible as they were obtained properly and legally.

The video recordings were obtained properly as the Mother had legitimate interest not only in her own safety and wellbeing but in preventing the children from being exposed to any conflict or unpleasantness between the two.

The video recordings were also obtained legally as they were intended to protect the Mother’s lawful interests, namely, to demonstrate she was a victim of family violence.

The audio recordings were improperly obtained as they were a significant breach of the children’s trust. Children are entitled to their own private conversations with their parents, regardless if the intention of that parent is to enlist them in the dispute with the other parent.

Whilst the Mother may have rightly believed the Father was attempting to alienate one of their children from her, the audio recordings were not sufficiently in the public’s interest or for the Mother’s lawful protection. The Mother was not acting to protect herself or record relevant proof of a criminal offence but rather they may be of benefit in upcoming litigation.

Trying to prove parent alienation is incredibly difficult. Using his discretion, Judge Heffernan considered whether on the balance, the probative value of the audio recordings outweighed the Mother obtaining them improperly and illegally. However, the children’s right to have a meaningful relationship with their Father including the right to communicate privately was considered more significant.

Understandably, if the audio recordings were admitted, there could be an increase in recordings of private conversations which may deteriorate any trust remaining between parents, prolong the dispute and erode the privacy in children having a meaningful relationship with their parent.

What does this mean?
It is prohibited to secretly video or audio record a conversation with someone without their knowledge or consent. Whilst there are exceptions to the rule, such as in the public interest or to protect your lawful interest, this does not include doing so in the hope that the recordings can benefit from current or contemplated civil litigation.