Can I record my ex when we are talking to each other?

In every state and territory of Australia it is unlawful to listen to, secretly record or publish private conversations.

However, the offences, exceptions and penalties in each jurisdiction are all different. Given the mobility of the modern family, this makes it challenging to navigate the system, especially if engaged in a family law dispute of some kind.

In Queensland at least, the short answer to the question is ‘yes’ – provided you are part of the conversation.

Uniquely in Queensland, telephone or video recordings made without the knowledge or consent of the other party to the conversation are routinely relied upon by separated couples as evidence in their family law matters.

Some examples of this type of evidence from the cases include recordings of the parties’ interactions at changeover, verbal and physical abuse, exposure of the children and parents to family violence, the non-existence of family violence despite it being alleged and the taping of children answering leading questions put to them by parents.

Sometimes the recordings are used to support an allegation made by one party and sometimes to show that the other side’s denial of the allegation is untrue. The judge will hear or watch the recordings and may draw conclusions and make orders about children, money and liberty based on what the recordings reveal.

Separating couples ought to be guided by the line from George Orwell’s ageless novel 1984:

“You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every moment scrutinised.”

Similar examples of bad behaviour exist throughout the other states or territories but there the recordings will be unlawful unless all parties to the conversation consent or unless a party made the secret recording:

• in circumstances where it was reasonably necessary for the protection of the lawful interest of that party
• in connection with an imminent threat of serious violence
• in the public interest.

However, even if a recording is found to be unlawful, the courts have the discretion under the Evidence Act and the Family Law Act to admit such evidence if the undesirability of admitting evidence gathered in contravention of the law is outweighed by the desirability of doing so.

On this basis, otherwise excluded secret recordings of a party threatening to kill or striking the other party or the children have been allowed in to show that there is a risk of psychological or physical harm.

Conversely, attempting to rely on secret recordings has also backfired on many a party – such as the mother who pinned a recording device to her young daughter’s teddy bear backpack and sent it along to the contact supervision centre.

Although the device did record conversations where the father denigrated the mother to the supervisor, the judge not only criticised the father, but commented adversely on the mother’s conduct.

In essence, secret recordings can be compelling evidence in the right case, but it is vital to be aware of the risks and to understand what you can and cannot legally do.

Access CGW partner Justine Woods’ article on the admissibility of audio and video recordings here. If you need legal advice about this topic or any family law issue, please do not hesitate to contact one of our team’s experienced family lawyers.