Changeovers can be one of the most difficult parts of co-parenting after separation or divorce. But they are unavoidable if you share the care of children. For up to eighteen years, it will be necessary for you and your ex to be courteous and civil with each other on a regular basis as you shuttle your children between two households. It will be necessary for you to set up an arrangement with your ex that is practical and suitable for everyone. But—particularly in the early years—changeovers can become a site of major conflict and expressions of hostility between parents. And this is obviously not in the children’s best interests.
Some parents believe that filming changeovers is a way to prevent ugliness occurring or to document it if it does. Others feel that it’s a way to protect themselves against future allegations about their conduct by the other parent. But although it’s oh-so-simple to use our mobile phones to film (and share) video nowadays, recording your ex at changeovers can be a big mistake. Here, we explain what the risks are of filming changeovers, the legalities, and when it actually might in fact be a good idea to film changeovers.
Whether or not you are secretly or openly recording your co-parent, the legalities of filming others can be quite complex. When it comes to secret recordings, in many Australian jurisdictions, it is illegal to secretly record a conversation with someone. Sometimes, people can be recorded even without their consent, but you still can’t circulate the content anywhere.
Confusion often arises because of the fact that even if a recording is made illegally, the family courts will sometimes still admit the material as evidence.
The Commonwealth’s Evidence Act has a section that prohibits evidence if it was obtained improperly or illegally but can make exceptions based on probative value and the unique circumstances of the case.
It all hinges on the ability of the material to act as impartial evidence to contribute to justice being delivered in a trial. For example, in a parenting matter where family violence is alleged, covertly filmed evidence of abuse has been permitted to be introduced into evidence. The question always revolves around the relevance to a matter of the content of the conversation or interaction.
How is “probative value” determined?
The courts consider a range of factors in considering the desirability of admitting the evidence. For example, footage of a parent interrogating children about their other parent is likely to be viewed as harmful to the children and reflect negatively on the recording parent, whereas obtaining video of abusive or other disruptive behaviour by an ex-spouse may be helpful if it contributes to an objective, evidence-based view of reality. On the other hand, a court may also be asked to exclude recorded evidence if its probative value is substantially outweighed by the risk of the evidence being unfairly prejudicial to a party.
When might filming changeovers be beneficial?
Under section 4(3) of the Listening Devices Act 1992 you are able to record a private conversation if you are involved in that conversation and the recording of that conversation is considered, on reasonable grounds, to be necessary for the protection of your lawful interests.
Secondly, under section 138 of the Evidence Act 1995 a court may still admit into evidence something that was illegally obtained if the desirability of admitting it outweighs the undesirability of admitting evidence that has been illegally obtained.
So in what situations might filming changeovers be useful rather than harmful to your case?
Evidence of family violence
If family violence is an issue in your matter, recording interactions might be useful and are even sometimes encouraged by police if serious allegations have been made, in order to obtain an Apprehended Domestic Violence Order. You may be able to prove an existing Order was breached, or you may obtain proof of the other parent making false statements, which you can use as evidence, or you may record conduct that puts the children at risk. Usually, when the safety of you, your children or other parties is at risk, recordings you make could be argued to “protect your lawful interests”.
For instance, in one matter, a mother experiencing family violence set up a hidden camera and recorded changeovers without the other parent’s knowledge. She was able to have the recordings introduced into evidence in her family law proceedings. Her recordings were not found to contravene the law because they were made to protect her lawful interests (necessary for the purpose of obtaining an intervention order).
Evidence of false allegations
Recordings may assist in disproving certain conduct in defence against allegations made against you or proving your civility at changeovers. If your ex has a history of making up allegations, you might find filming changeovers gives you a measure of security and could be argued to fall under protection of your lawful interests—eg. protection from criminal prosecution.
The risk of filming changeovers
Apart from risking criminal consequences, there’s the risk that the material you filmed won’t be given any weight and won’t be allowed into evidence in your case.
Further, recording changeovers can seriously impact on a parent’s credibility in the eyes of the court. It can display a lack of insight on the part of the recording parent: a phone being whipped out to record interactions can often inflame hostilities and exposing children to parental animosity is not regarded as being in the best interests of children at changeovers.
It can suggest to a court that the recording parent is known for engaging in dishonest conduct or acting to inflame conflict. The court may well ponder, is the parent filming changeovers for the benefit of the children or (more manipulatively) to improve their position in their court matter?
It can also paint the recording parent as being guilty of family violence, through harassing and intimidating the other parent and exposing the children to such family violence (exposure being another form of family violence). If your ex is routinely filming you without your consent, you might perceive it as intimidating and report it to the police. Penalties vary across states – eg. in NSW penalties include fines and up to five years’ imprisonment. A recording parent’s time with their children may also be affected, with the aim of reducing childrens’ exposure to a high conflict parental situation.
The upshot is you need to be careful of recording private conversations with your ex and your kids. There can be serious consequences to making unlawful recordings, including police prosecution, and your family lawyer should advise you of these.
Alternatives to filming changeovers
If civility between parents is so strained that there is likely to be high conflict at changeovers, it is better to simply avoid the interaction altogether. Instead, you can manage your changeovers with third parties and with lower conflict locations than on the street outside the former family home with all the neighbours’ ears pricked.
Public places like McDonalds or the local shopping centre have typically been seen as a neutral ground and can inhibit angry scenes. But other changeover locations may be more suitable, such as at a mutual friend’s house, the grandparents’ home, or even public libraries which represent a positive venue for children. Changeovers can happen at your kids’ school, too, so that neither parent has to come into contact with the other. A paid supervision centre or agency can also facilitate supervised changeovers.
Rather than film the changeover, you could also arrange for the changeover to take place in a very public space where you know there is existing CCTV. You might also consider bringing a witness to your changeovers.
Key takeaway: check with a family lawyer
The safest bet is always to speak to a lawyer for solid advice. They will know best when recordings can be used as admissible evidence in court, whether they have probative value and are necessary to protect your lawful interests, and whether what is being said is going to benefit your case, rather than waste the Judge’s time and ensure that the recordings do not end up reflecting poorly on you.
Thinking of making any recordings in your family law matter? Give us a call for initial advice on your best way forward. We can carefully consider the admissibility of the potential evidence, whether it can be obtained on legal grounds, whether it would add value to or harm your case, and whether making a recording in any way has potential criminal consequences for you. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law