• Caroline

The fine line between defence and offence



When faced with emotional abuse, whether from a romantic partner, at work or online, we essentially have three logical choices. We can defend ourselves, do nothing, or take strong action against the perpetrator of the abuse (otherwise known as “going on the offensive”).


The Family Court of Australia in Adelaide recently considered the line between defence and offence in the context of a marriage. The mother alleged physical violence and coercive and controlling behaviour by the father. In order to support her allegations, the mother made a video recording of two handovers of the children to their father.


The mother also made audio recordings of private conversations between the father and the children. This was to prove that the father had engaged in parental alienation and was actively attempting to recruit the children as allies in the parental dispute.


The Court found that the video recordings were admissible as evidence in the legal proceedings but the audio recordings were not. Why? Primarily because the mother was present at the handover (and therefore party to the video recordings) but was not present during the telephone conversations.


In South Australia, it is an offence to use a listening or optical device to record a private conversation or the carrying on of a private activity without the consent of each party to the activity. However, it is legal if the private conversation was recorded by a person who is a party to it. There is similar legislation in Queensland.


The case is interesting because the Court considered more than the mere legality of the recordings. In allowing the video recordings, Judge Heffernan noted:


“Handovers 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… 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.… Recording his behaviour was not improper in that context, even allowing for the secrecy with which it was done.” Coulter & Coulter (No 2) [2019] FCCA 1290 at [10].


However, in rejecting the use of the audio conversations, his Honour opined that:


“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”. Coulter & Coulter (No 2) [2019] FCCA 1290 at [11].


This case is a useful summary of the fine line between protecting your lawful interests (defence) and invading another person’s right to privacy (offence). The judgment ends with a cautionary warning for family court litigants not to assume that their actions in making a covert recording would fall within an exception or defence.


It’s clear that choosing how to appropriately defend yourself or to go on the offensive in the midst of a family dispute (whether in court or otherwise) is difficult without appropriate guidance and advice. If you are currently facing this issue, we’re here to help.


Solo Legal practices trauma-informed family law in Queensland, Australia www.solo-legal.com

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