Recording Face-to-Face Conversations?

[MichaelV]

Hi,
I'm going to court to review the current family court orders relating to the time I have with my children (custody of children). I was wondering if I recorded a face-to-face conversation with my children's grandparents (from the mother's side), could I use it in family law court?

 

[AllForHer]

This is a very tricky situation and whatever I say here is NOT legal advice.

The usual rules of evidence don't apply in family matters, particularly in parenting matters because most adhere to the 'less adversarial' court procedure.

However, what you're essentially wanting to do is use a witness that neither you, nor the mother, can cross-examine on the day of hearing. The courts have a duty to ensure that both parties have an equal opportunity to plead their case, which includes the right for both parties to cross-examine any witnesses. Unless the grandparents affirm an affidavit and make themselves available for cross-examination, there is a chance the judge will strike out the recording anyway.

Of course, these are just my thoughts from what I understand of the family law system. I'd go and speak to a solicitor before going ahead with it.

 

[Tim W]

The usual rules of evidence don't apply in family matters, particularly in parenting matters because most adhere to the 'less adversarial' court procedure.

Agreed, as a generalisation.

However, what you're essentially wanting to do is use a witness that neither you, nor the mother, can cross-examine on the day of hearing.

Agreed.

The courts have a duty to ensure that both parties have an equal opportunity to plead their case, which includes the right for both parties to cross-examine any witnesses.
Unless the grandparents affirm an affidavit and make themselves available for cross-examination, there is a chance the judge will strike out the recording anyway.

An affidavit may suit this situation, yes.
No, a statutory declaration won't cut it.

I assume that the grandparents don't want to go to court.
Chances are, they will have to.

Of course, these are just my thoughts from what I understand of the family law system. I'd go and speak to a solicitor before going ahead with it.

This is a good suggestion. There's no DIY here.

 

[MichaelV]

Thanks for the information.
Just a quick run down on the situation for you.
We went to court the first time because the mother would not consider giving me more time with my 2 children(I had 26%).
The judge immediately ordered a family report which we had done a month later. In the family report the mother accused me of physical abuse and her parents backed up her claims, which in the end the person doing the report tended to agree with but said the kids don't seem to be affected in anyway from the said abuse(because it didn't happen). Anyway, When we went back to court I had written quite a large statement to read or present to the judge explaining a lot of the accusations in the report because it seemed as though they were painting a very untrue & nasty picture of me. I saw the duty Lawyer on the day and showed her the statement I had wrote and she told me there was noway the judge would read or listen to it and she said that even though those things were in the report the author still suggested the children spend more time with the father. We ended up negotiating outside the court a deal which I ended up with 44% care of the children. When in the courtroom the judge was pleased we came to an agreement, draw up the orders and said to come back in 6 months for a mention to see how the orders are going.
Since then some things have been brought to my attention concerning the well being of the children. The mother was living with the grandparents when the report was done and she moved out with the children as soon as the court date was over. She has moved 4 times since then and is now back with the parents(only because I pressured her father because of the places she was living and the fact the court date is coming up they want to say the children are in a stable home). There are concerns(and loose evidence) she is dealing/taking drugs and been in domestic violence situations, kids were absent or late to school most of the time when she was not living with her parents. I had a meeting with her parents telling them my concerns and that I had no choice but to ask the judge for full custody as I had no faith in their mother. I also said to them I would negotiate 50/50 percent care if they could assure me the children were taken care of properly while in the mothers care. They told me the living situation at the grandparents was not good as they had their other 2 grandchildren most of the time as well and the house was only 3 bedrooms. They also said that they would not let my children move out of their house with the mother for at least a couple of months, until they felt her situation was 'safe'. To me this means they do not have any faith in their daughter as a mother either.
I have an affidavit ready for the court and my main question was if I use a recording of the grandparents stating they won't let the children go with the mother until they are happy with were she chooses to live and the fact that their house is not suitable in the affidavit, will I get into trouble for using or submitting it as evidence in court? Obviously the mother will get a copy of the affidavit and all the evidence before the court date so she will have a chance to defend herself.
Cheers.

 

[AllForHer]

Thanks for the further information - again, I'm not providing legal advice, just my interpretation.

Will you get in trouble for using the recording? Legally, no, you won't be penalised, but the judge is unlikely to consider it in his decision unless the grandparents are made available for cross-examination.

So far, you have done well by negotiating an outcome outside of court, but family law is as much about perceptions as anything else, so some things to consider...

First, going through court for 50/50 as opposed to 44/66, or one extra night of care per fortnight, runs the risk of hurting your case because I think it's going to be difficult to show that one extra night with you is better for the kids than the stress of a long court procedure and the legal conflict with the mother that you will be prolonging by pursuing that extra night.

What does impact the kids' best interests, however, is the fact that they're missing school and living in a three-bedroom house with up to seven people at any given time. Are you better equipped to get them to school every day? Is your living situation more stable and consistent?

Judges don't care for mud-slinging matches between warring parents, they only care about the best interests of the child. I wouldn't go in telling the judge what a terrible person the mother is - after all, you also need to show that you can encourage a meaningful relationship between the mother and kids if they were to change residences. I would go in telling the judge what your concerns about the kids are and why you think it's in their best interests to live with you.

Just be warned, though, that going for a change in residence is a very, very difficult path, and an often unsuccessful one. Speak to a solicitor to get a better idea of how to pitch your case.