Judge Heffernan in the matter of Coulter & Coulter (No. 2)  FCCA 1290 (15 May 2019) heard an application of the father to exclude video recordings made by the mother of the father when he attended her home for hand overs of the children and two audio recordings of conversations between the father and the children, taken via a KIK messenger application on the children’s iPods. All recordings were made without the knowledge or consent of the father.
The Mother had secretly taken video recordings of interactions with father at hand overs, Judge Heffernan found the video recordings to be admissible as the mother had a lawful interest in her personal safety. On the other hand her secretly taken audio recordings of private conversations between father and the children were held to be inadmissible.
The Court said (from ):
“Applications to exclude evidence on the basis identified above are dealt with by ss135 and 138 of the Evidence Act 1995 (Cth) (‘the Evidence Act’).
 Section 135 deals with the general discretion to exclude evidence as follows:
‘The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.”
 Section 138 deals with the discretion to exclude improperly or illegally obtained evidence and provides as follows:
‘(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. ( … )
( … )
Were any of the recordings made improperly?
 The term ‘improperly’ is not defined in the Evidence Act … Whilst there is no reason to conclude that the term ‘improperly’ should be narrowly construed, it seems clear that it will at least to some extent take its meaning from its context. ( … )
 In my view, relevant considerations in assessing the conduct of the mother include the allegations by her of physical violence and coercive and controlling behaviour by the father; the fact that the child, C, left her care to live with the father and has had no contact with the mother since he was 15 years of age; the fact that the father was unaware of either the video or audio recordings being made; and the fact that the mother was not a party to the conversations in the audio recordings, and that they were private conversations between the father and the children in the context of him having less time with them.
 I am satisfied that it was not improper for the mother to make the video recordings of the two hand overs. … Hand overs occur in circumstances where the mother has a legitimate interest in her personal safety, welfare and in preventing the children from being exposed to conflict and unpleasantness between the parties. At the time that the mother made the video recording, it is her evidence that she had been having ongoing difficulties of that sort with the father. The mother had an ongoing concern about the father’s apparent obsessiveness with matters personal to her and his abusive, coercive and controlling behaviours and past episodes of violence. She was in the process of seeking an intervention order against him to deal with those issues. … Recording his behaviour was not improper in that context, even allowing for the secrecy with which it was done. In considering the question of impropriety, I also give weight to the conclusion … that the conduct in recording the hand over was not contrary to a relevant Australian law.
 In my view, it was improper of the mother to make secret audio recordings of private conversations between the father and the children. It involved a significant breach of trust with respect to the children, who were entitled to privacy in their conversations with their father irrespective of any motives he may have had to enlist them in his dispute with the mother.
Were any of the recordings made in contravention of an Australian law?
 As far as either the audio or video recordings being made in contravention of an Australian law is concerned:
- a) I am satisfied that it was not a contravention of an Australian law for the mother to make the video recordings of the hand overs.
- b) I am of the view that it was in contravention of an Australian law for her to make the secret audio recordings of the private conversations.
 The relevant Australian law for this application is the Listening and Surveillance Devices Act 1972 (SA), (‘the Listening and Surveillance Devices Act’) now repealed but which was operative at the time each of the recordings was made.
( … )
 Section 4 [prohibiting intentional use of a listening device to overhear, record, monitor or listen to a private conversation without consent, whether or not the person is a party to the conversation] does not apply in the following circumstances:
‘7—Lawful use of listening device by party to private conversation
(1) Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used—
(a) to overhear, record, monitor or listen to any private conversation to which that person is a party; and
(b) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.’
 As far as the video recordings of the hand overs is concerned, they captured private conversations between the parties. They were without the consent of the father and unknown to him. Section 4 applies unless the circumstances fall within the exceptions in s 7. The relevant questions from subs 7(b) are whether it was in the public interest or for the protection of the lawful interests of the mother that the recordings be made. I am not satisfied that it was in the public interest for the mother to video the hand overs. …
( … )
 … I am satisfied in the circumstances of the two video recordings that the mother was acting in protection of her lawful interests. At the time that the videos were made, things were still very raw between herself and the father. She genuinely believed herself to be a victim of family violence and was looking for a way to demonstrate that for the purpose of obtaining an intervention order. The behaviour of the father during the video recordings was consistent with the mother’s concerns and the definition of ‘family violence’ under the Family Law Act 1975 (Cth) … That finding should not be taken to be an imprimatur for the mother to secretly record any or all private conversations to which she is a party with the father … I have simply found that in the circumstances of the subject video recordings at the time of the hand overs she was acting to protect her lawful interests.
 I view the recording of the audio recordings of private conversations between the father and the children differently. The conversations were private conversations between the father and the children. They were secretly recorded. The fact that the mother believed, with some justification, that the father was attempting to alienate at least one of the children from her and recruit him for his own tactical purposes, is not in my view sufficient to make them either recordings in the public interest, or for the protection of the mother’s lawful interests. The mother was not acting to protect herself, or to record conversation or behaviour relevant to the proof of a criminal offence, or the likelihood of an offence being committed. The conduct falls into the category … of [the mother] trying to garner information that might be of use to her at a future time, possibly in proceedings such as these.
 In summary, I find that it was neither improper or in contravention of an Australian law for the mother to have made the video recordings of the hand overs in the circumstances that she did. I am satisfied that it was both improper and a contravention of the Listening and Surveillance Devices Act for her to make audio recordings of the private conversations.
The discretion to admit the audio recordings of the private conversations
 I turn to the question of whether the audio recordings should be admitted pursuant to s 138 of the Evidence Act because the desirability of so doing outweighs the undesirability of excluding them.
 The evidence has clear probative value to the allegation arising on the mother’s case of parental alienation, engaging the children in adult disputes, and when considering the nature of the children’s relationship with both parents. ( … ) Against that ( … ) [t]he children have a right to a meaningful relationship with the father. That obviously entails a right to communicate with the father including by way of private conversations. The relationship between a parent and a child could be significantly compromised if a parent could not communicate freely with a child without fear of being covertly recorded.
 In my view, these considerations are of greater weight than the probative value and the inherent difficulty in obtaining evidence of this sort. They are of greater weight notwithstanding the fact that the recordings demonstrate the improper behaviour of the father in using at least one of the children to spy on the mother and recruit him for tactical purposes.”
The father’s application to exclude the video recordings was dismissed but his application for the exclusion of the audio recordings was granted.