Recording devices and family law: when can you record a conversation?

It is increasingly common for separated spouses to record conversations involving their former spouse. This is often done in the hope that the other party will make certain disclosures that will assist the recording party’s family law matter.

However, it is only legal to record conversations in certain circumstances. Before recording conversations, you should first consider whether it is legal and second, whether there is likely to be any benefit to do so.

What is a listening device?

Any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation at the same time it takes place (section 4 of the Invasion of Privacy Act 1971 (Qld)).

The definition is very wide and captures obvious devices, such as tape recorders, through to devices that might only record as an ancillary purpose, such as mobile phones.

When is it legal to record a conversation in Queensland?

It is legal for a person involved in a conversation to record that conversation (section 43(2) of the Invasion of Privacy Act 1971 (Qld)).

It does not matter whether:

• the conversation is face to face, telephone or via any other electronic means; or
• any other parties involved in the conversation are aware it is being recorded.

When is it illegal to record a conversation in Queensland?

It is illegal for a person not involved in a conversation to record that conversation (section 43(1) of the Invasion of Privacy Act 1971 (Qld)).

For example, if a child is having a phone conversation with their mother, it is illegal for their father to leave a mobile phone nearby recording that conversation.

Interestingly, despite the broad definition of a listening device, it is illegal to record a telephone call with a device physically attached to the telephone (Telecommunications (Interception and Access) Act 1979 (Cth)). This includes bugging or intercepting a phone conversation.

When can I communicate to a third party or publish a recorded conversation in Queensland?

Although it may be legal for a conversation to be recorded in certain circumstances (subject to the above limitations), it is an offence to communicate to any other person or publish that recording unless it is made:

• with the consent of the other party or parties to the conversation;
• to another party to the conversation;
• in the course of legal proceedings;
• as reasonably necessary in the public interest, in the performance of a duty of the person making the communication or publication, or for the protection of the lawful interests of that person;
• to a person who is reasonably believed to have such an interest in the private conversation so as to make the communication or publication to them reasonable in the circumstances; or
• by government officers in certain limited circumstances.

When should I record a conversation?

You should not record a conversation unless you are certain it is legal to do so. If you are unsure, you should obtain independent legal advice before attempting to record a conversation.

Once you are certain it is legal to record a conversation, you should consider whether you are likely to obtain any useful evidence by doing so. For example, a victim of family violence may record telephone calls with their former partner if they reasonably suspect the partner may commit further acts of family violence during those discussions.

Parties in litigated family law matters often exhibit recordings to their affidavit material as evidence supporting their version of events. However, in our experience, most of these recordings do not provide useful evidence that will assist the judge determine the key issues in their case.

Exhibiting unhelpful recordings to affidavit material may adversely affect the judge’s perception of your position or credibility.

We strongly recommend that parties obtain independent legal advice before they:

• record a conversation; or
• exhibit any recordings to affidavit material.

For further information please contact Craig Turvey of Cooper Grace Ward’s family law team via
+61 7 3231 2479 or [email protected].

Click here to read an article about tracking and listening devices written by our family law team