Smartphones. They’re good for texting and taking selfies, but should you be using them to make secret recordings of your ex-partner?

In a world where nearly all parents and teenagers have a smartphone, most Australians now have a device at their fingertips which is capable of making audio and video recordings at the touch of a screen, without anyone else even knowing.

But, if you make a secret recording of your ex-partner, can you use it in Family Court proceedings, and if you can, should you?

In NSW, it is illegal to record a private conversation, whether or not you are a party to that conversation. There are a few exceptions, however, the most relevant ones are:

1.     When you have the consent of all parties to the conversation; and

 2.     When you are a party to the conversation but making recording is reasonably necessary for the protection of your lawful interests.

Firstly, you need to remember this only applies to private conversations, not ones which you would reasonably expect someone else to overhear. That means a conversation in a public place where others are present (a café or restaurant) is unlikely to be considered a private conversation, but one which takes place in your home will be.

What, then, constitutes protection of a lawful interest? Many cases have considered this question. While there are no blanket rules and it is still determined on a case by case basis, but the Court has given some guidelines in the cases which have considered this question.

The Court has made it clear that making a recording to secure evidence to assist your case is not enough. If you make a recording just to make your ex-partner look bad, the Court is unlikely to let you rely on it, and you might be found to have committed an offence by making the recording.

More commonly, the Court has allowed parties to rely on a recording made without the other parent’s knowledge or consent in circumstances of serious family violence. This is usually where the recordings are made to corroborate a parent’s allegations that the other parent committed acts of family violence against them or the children. The Court has also allowed parents to rely on recordings made to defend themselves against allegations of family violence by the other parent, particularly where those recordings disprove the other parent’s allegations.

However, even if a recording was made legally, or to protect a lawful interest, it still needs to be relevant to an issue in dispute before the Court will allow you to rely on it. The Court generally frowns upon the use of secret recordings unless they are directly relevant to a significant issue in dispute. If they are not, and you try to rely on them anyway, the Court may form impressions about you which do not assist your case.

If the recording hasn’t been made to protect a lawful interest, the Court can still allow a recording to be used as evidence if it is desirable enough to do so. In making this assessment, the Court will consider the importance of the recording in the proceeding and whether evidence of what was recorded could be obtained in a lawful way. Again, the Court is more likely to do so in circumstances of serious family violence, as it has noted that it is notoriously difficult to obtain evidence of family violence which takes place behind closed doors.

If you make a recording without proper consent or to protect a lawful interest, you risk being found guilty of an offence which is punishable by way of a fine of up to $11,000 and up to 5 years imprisonment, so you should think twice before hitting record. If you want to rely on recordings you have already made, or you are considering making recordings, please get in touch for advice from one of our team before you do so, as you may land yourself in some hot water if you do not.

Written by Phillip Ridgway and Brigit Zafirakis