As a Family Lawyer, clients often provide copies of photographs taken of children who may have been returned unbathed, video footage of disputes at changeover or recordings of telephone conversations.
While such evidence may be useful for legal representatives to prepare for a Final Hearing (by giving information about what might have taken place on a particular location, the nature of the person and how they may react to cross examination), there is a real risk that those parents who do include the photographs or recordings as evidence filed with the Court will be criticised.
In February 2013, then Federal Magistrate John Coker said of one such recent case that the recording produced held little probative value and reflected worse on the person who made it. His Honour was quoted as saying “it would seem, clearly, to be an evidence – gathering exercise and one that, in my view it least… gives rise to serious concerns as to the behaviours of the party who records such evidence”.
From observations at Court, it seems the Court is not likely to put much weight on such evidence as it is likely that the person recording will definitely be on their best behaviour, whilst the other parent may not be acting themselves due to dealing with the separation. Further, the photograph or video footage could be taken out of context.
For children, knowing they are being taped or photographed whilst they are upset at changeover, being photographed because their dad did not brush their hair etc are likely to be more aware of the conflict between their parents. The children may also consider that they are the cause of the conflict between their parents and that they are constantly being put in the middle.
It is my view that such behaviour is likely to add to the conflict and instead parents should do everything in their control to shelter the children from their family law dispute. Children should not be exposed to the high conflict or hold entrenched negative memories of the time period following their parents’ separation.