Family Law Tip: Don’t video record your ex-partner at Contact changeovers!

IT MAY BE SEEN AS HARASSING BEHAVIOUR AND MAKES THE OTHER PARENT AND YOUR CHILD FEEL UNCOMFORTABLE.

If your relationship is at such a point where you cannot come into contact with each other without the need to record the other parent, then maybe you should not be involved in the changeover altogether.   This type of situation shows a clear breakdown in the relationship between the parents and there is a need for them to better manage their changeovers.  

It is quite confronting for anyone to arrive at a changeover point and have a mobile phone or some other recording device held to their face.  Such conduct is harassing and will likely cause significant distress to the parent and to the children being recorded.

Ideally changeovers should be an opportunity for separated parents to be civil and courteous with each other; to enable a smooth and peaceful transition between households for the children.

There are many reasons why parents choose to record the changeovers.  One of the main reasons for them to do it, is because they are concerned that the other parent is going to make up allegations against them, particularly in the midst of family law proceedings, and they feel a need to protect themselves to disprove any future allegations being made.  Sometimes it results in both parents recording each other at the changeover!  How terrible for the children!

Cases in a family law context

There have been many Family Law cases where Judges have found it to be completely inappropriate for a parent to record the other parent during a changeover, regardless of the reasons. The court has found such conduct to be harassing.  It has also resulted in cases where the children’s time with the parent has been reduced because it was a way of ensuring minimising the children’s exposure to such high conflict.

On the other hand, there have been cases where Judges have found that a parent doing the recording was justified to protect their lawful interests; it included cases where recordings were admitted into evidence because a parent had recorded the other parent to prove that the children were at risk of child abuse; another example was where a parent recorded the other parent to prove a family violence order had been breached.

Is it legal to record the other person without their consent?

There is a question mark over the legality of video or audio recording another person without that person’s consent.  The act of recording someone without their consent is a breach of the Surveillance Devices Act.  However, there is an exception to this offence if ‘it was reasonably necessary for the protection of the lawful interests’ of the person doing the recording. 

One example of ‘protecting a lawful interest’ is if a parent records the other parent at a changeover because they are concerned about going in to contact with that parent if there has been a history of that parent making up allegations against them.  The legitimate lawful purpose is for that parent to protect him or herself from further criminal allegations being made against him or her.

Whilst this may be considered a legitimate legal purpose, it is our view that it is still not a good idea for you to record the change-overs because it causes the other person distress and it continues to expose your children to the conflict and animosity between you.

How else do I manage my changeovers then?

If there are concerns about of your ability to manage a contact changeover, without the need of video recording, there are a number of other alternatives that the parents can consider including:

• organise for the contact changeover to occur at a public venue where there is sufficient CCTV cameras;

• Have someone other than yourselves be involved in the changeovers (i.e. third parents)

• Organise changeovers to occur at the children’s school when possible, without the need for the parents to have any contact with each other;

• Consider using a professional Supervised Contact Centre or a private supervised contact agency to organise supervised changeovers (at a small fee) to eliminate all contact between the parents; and

• Have a witness present during the Changeovers;

Tips for the parent being recorded

If you are the person being recorded at changeovers, you should advise the other parent that:

1. You do not consent to being recorded; and

2. You request that they refrain from recording you at contact changeovers; and

You can also suggest that if they do not stop recording you at changeover that you will report the matter to the Police for the purpose of obtaining an Apprehended Violence Order.

You can tell them at the changeover or you can tell them in a text message or email after the event (the preferred option).

You might also want to think about other practical solutions so as to ensure that the changeovers occur in a safe environment for the child, such that the child is not exposed to continued conflict between the parties whether the changeovers occur with alternative people or occur at a different venue altogether.

Tips for the parent doing the recording

Don’t do it.  – If you are seriously thinking about the need to video record the other parent at a changeover don’t do it.  Leave the camera/ phone/ dash cam/ go pro at home.   

Try and imagine how you would feel if it was the reverse and you were being recorded at a changeover? Or if you were being recorded by a random stranger.  It is a violation of privacy. 

Think about the fact that your actions are unnecessarily causing stress to your child and this could be avoided by thinking of other practical solutions. 

If you do need to record the other parent to protect yourself at changeovers, you should consider getting legal advice to make sure that your recording is ‘reasonably necessary to protect your lawful interests’ and to make sure that it won’t adversely affect your family law proceedings.

If this is a situation that you are having difficulties with, you may want to see a solicitor at Solari & Stock Lawyers for assistance. Contact our Family Law Team on 8525 2700 or click here to request an appointment.

Article written by Nicole Quirk.
Photo by William Bayreuther on Unsplash