In most cases, it is an offence to secretly record a conversation with another person without their permission. However, as the development of technology nearly guarantees an audio or video recording device will be on most individuals at any given time (i.e. smartphones), there are frequent cases where a party has secretly documented interactions with another party.
While it is unlawful to record another without their consent, audio and visual recordings may be permitted to be used as evidence in family law proceedings only in certain circumstances. This is a delicate area of the law and should be carefully considered prior to attempting to record conversations. It is not guaranteed a party will gain an advantage over the other and could even result in criminal charges under the Surveillance Devices Act 2007 (NSW).
When is the use of listening or recording devices prohibited?
In NSW, it is an offence to record someone without their permission.
Under Section 7(1) of the Surveillance Devices Act 2007 (NSW), it provides that:
(1) A person must not knowingly install, use or cause to be used or maintain a listening device
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
If a Court finds a person is guilty of this offence, that person may be fined the maximum penalty of $11,000 and/or sentenced to 5 years imprisonment.
What if parties to the conversation give consent?
It is not an offence to record a conversation under the Surveillance Devices Act 2007 (NSW) if all parties to the conversation give consent to the recording. However, the Act prohibits recording anyone without their consent unless it is reasonably necessary to protect the lawful interests of the party who records the conversation.
Section 7(3) of the Surveillance Devices Act 2007 (NSW) provides that it will not be an offence to secretly record a conversation if:
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
When can secret recordings be admitted as evidence in family law proceedings?
If a party has obtained a recording which ought to be admitted as evidence, in order to be permissible, they will need to demonstrate to the Court that it was necessary to conduct the recording to protect their lawful interest.There is no definition of “lawful interest”, and as a result there are vast case law examples which differentiate according to the facts of the case. Under section 138 of the Evidence Act 1995 (Cth), the Court has the discretion to admit evidence that is improperly or illegally obtained if “the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence has been obtained.”
Essentially, the Court will consider the probative value and importance of the evidence in the proceeding and the circumstances surrounding the contravention of the law in order to obtain the material. Nevertheless, it is important that recordings are not made with the aim to shame the other party or in attempt to be seen in a favourable way. Parties need to carefully consider whether secret recordings without consent will be admissible in proceedings or simply unlawful. If the Court does not accept a secret recording, the person who made the recording without consent may be exposed to criminal liability.
In a recent family law case, Coulter & Coulter (No. 2)  FCCA 1290, a father disputed the video recording of changeovers which a mother took without his consent. The Court considered the circumstances that the video recordings were made and considered the legislation and case law surrounding the facts. Ultimately, His Honour Judge Heffernan confirmed the mother was protecting her lawful interests in relation to domestic violence albeit a serious invasion of the father’s privacy. It should be noted that His Honour did find it improper and in contravention of Australian law, that the mother’s convert audio recordings of private conversations between the father and children, was not acting to protect her lawful interest.
His Honour warned at :
“…The ubiquity of smart phones means that every person potentially has a tracking device in their pocket. If in proceedings under the Family Law Act, the Court were to readily admit evidence otherwise improperly or illegally obtained, the temptation, and for many parties the tendency, would be to engage in widespread covert recording of private conversations which would contribute to a lack of trust between the parties, the unnecessary prolongation of disputes, and potentially erode the element of privacy necessary in any meaningful relationship between a parent and a child. Further, it is necessary that this Court recognise the operation of and public policy behind State law making it prima facie illegal to covertly record a private conversation.”
and at :
“…It should not be assumed by any party to a proceeding under the Family Law Act that their actions in making covert recordings of private conversations would fall within one of the exceptions or defences. It is very possible that such conduct would involve the commission of an offence against State law.”
A key point from Jasper & Corrigan (No. 2)  FCCA 1467, is that although the Court may rule that the evidence is admissible, it might not however, give the evidence much weight. In this case, a woman made a recording of her partner without his consent to prove there was a de-facto relationship between the parties. The evidence was ultimately deemed “reasonably necessary” as it was her word against his.
Credibility may fall within the definition of “lawful interest.” In Corby & Corby  FCCA 1099, a mother recorded a father’s abusive behaviour which was deemed permissible as it was reasonably necessary to protect her lawful interests. Her Honour Judge Sexton held that the mother had the right to protect her interests of not to be intimidated, harassed, or be forced to respond to demands for sexual activity.
The Court held at  and :
“I find no reason to infer that the recording was not made for the purpose of the complainant having some evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself or X from further such behaviour…
…The evidence also discloses that the Father may have had a public face very different from his private face… the Father may be charming and delightful in company, while intimidating and frightening in the home, as alleged by the Mother. The Mother here…was not trying to extract an admission…but rather to establish her credibility if there was ever a dispute about what had actually happened.”
Covert recordings remain an ambiguous and risky area of law. Every family law case is unique. If you require any further information or legal advice regarding family law disputes or obtaining appropriate evidence, please contact a member of the Cheney Suthers team.