It is increasingly common in family law disputes for one party to rely on secretly recorded conversations as evidence. This often arises in the context of parenting conflicts, allegations of family violence, or disputes about what was said between the parties.
In many cases, clients are surprised to learn that the law around covert recordings is far more complex than they expected. Just because a recording exists does not mean it will be admissible in Court. Equally, even if a recording was made unlawfully, it is not automatically excluded.
The approach taken by the Federal Circuit and Family Court of Australia is highly structured and, in New South Wales cases, depends on both NSW surveillance law and the Evidence Act 1995 (Cth).
The Starting Point: is the Recording Actually Lawful?
In New South Wales, secret recordings are governed by the Surveillance Devices Act 2007 (NSW). As a general rule, it is an offence to record a private conversation without consent, even if you are part of that conversation.
There is, however, an important exception. A person may lawfully record a conversation if they are a participant and the recording is reasonably necessary to protect their “lawful interests”. This phrase is where much of the legal argument arises.
The Courts have made it clear that “lawful interests” is not a broad licence to record conversations for litigation purposes. It is not enough to say a recording was made to “keep a record” or to protect against someone later denying what was said.
Instead, there must be a genuine and identifiable need for protection at the time the recording is made. In family law cases, this may include situations involving:
- threats or intimidation
- coercive or controlling behaviour
- allegations of family violence
- protection of children from risk
- protection of specific legal or financial rights already in dispute
The Courts assess this objectively at the time of the recording, not with hindsight once proceedings have begun.
Even if it is Unlawful, it May still be Used in Court
If a recording breaches the Surveillance Devices Act, that is not the end of the story. The Court then turns to section 138 of the Evidence Act 1995 (Cth), which gives the Court discretion to admit improperly obtained evidence if the circumstances justify it.
This involves a balancing exercise.
The Court considers factors such as:
- how important the recording is to the issues in dispute
- the seriousness of the illegality involved in obtaining it
- whether the conduct was deliberate
- whether the same evidence could have been obtained lawfully
- the overall interests of justice
In parenting cases, this often becomes a practical question: does the recording assist the Court in understanding what is happening between the parties and, more importantly, what is in the best interests of the children?
Where allegations of family violence are central, Courts have been more willing to admit recordings. Where the recording is peripheral or merely reinforces one party’s version of events, it is more likely to be excluded.
What the Cases Show in Practice
Over time, the Courts have developed a fairly consistent approach to covert recordings.
Where a recording is made in response to genuine concerns about safety, intimidation or coercion, it may be accepted as lawful. In those circumstances, it can be admitted and relied upon in the proceedings.
However, the Courts have also drawn a clear line. Recording conversations simply to create a record for litigation, or to anticipate future disputes, is usually not enough to justify the conduct.
Family law Courts are particularly focused on whether the recording was truly necessary at the time it was made, or whether it was simply a forensic tool created for later use in Court.
Family Violence Cases are Treated Differently
In matters involving allegations of family violence, recordings can take on greater significance.
This is because such conduct often occurs in private, without witnesses, and may be difficult to prove through other evidence. In those cases, a recording may be one of the few ways the Court can understand what has occurred.
For that reason, Courts have accepted that recordings can carry significant weight where they go directly to issues of safety and risk to children.
That said, the Courts remain cautious. Selective recordings, incomplete conversations, or recordings taken out of context may still be given limited weight or excluded entirely if reliability is in doubt.
The Court’s Concern about Children and Third Parties
The Courts are particularly critical where children are drawn into recording disputes between parents.
If a child is encouraged to record conversations or collect evidence for one parent, the Court may treat that evidence with significant caution or exclude it altogether. This is because the Court will always prioritise the child’s welfare over a parent’s forensic strategy.
A different approach may apply where a child independently records something for their own protection in circumstances involving alleged abuse or serious risk.
Similarly, recordings made by third parties who are not part of the conversation are generally viewed more strictly and are at greater risk of being excluded.
Financial and Property Disputes
In property and financial cases, the same general principles apply, although the context is different.
The Courts are still concerned with whether the recording was lawful and whether it should be admitted under the Evidence Act. However, the focus is less on immediate safety and more on whether the recording is genuinely probative of a legal or financial issue in dispute.
Even in financial matters, covert recordings made without a clear legal justification may be excluded, particularly where they are unreliable or where their admission would be unfair.
Practical Reality
Many clients assume that if they have a recording, it will automatically help their case. In reality, the position is far more nuanced.
A recording may:
- be admitted and strongly support a case
- be admitted but given little weight
- or be excluded entirely
In some cases, the fact that a recording was made can itself become an issue the Court is asked to consider, particularly where it reflects poorly on the conduct of a party or involves children.
Final Observations
The law in this area is best understood as a balancing exercise rather than a strict rule.
Courts are constantly weighing:
- protection of privacy and compliance with surveillance laws
- fairness between the parties
- and the need to ensure the best evidence is available, particularly where children are involved
The result depends heavily on the facts of each case.
For anyone involved in separation or parenting proceedings, advice should be obtained before relying on covert recordings in Court.
How Gramelis Attorneys Family Lawyers Can Help You
At Gramelis Attorneys Family Lawyers, we regularly advise clients in complex parenting and property disputes involving allegations of family violence, coercive control, and contested evidence.
We provide strategic advice on:
- whether covert recordings are likely to be admissible
- how Courts will treat illegally obtained evidence
- how to properly present family violence material
- and how to protect your position in high-conflict parenting disputes
We act for clients across greater Sydney and nationwide. Our office locations include:
- Gramelis Attorneys Family Lawyers Bankstown
- Gramelis Attorneys Family Lawyers Bondi Junction
- Gramelis Attorneys Family Lawyers Double Bay
- Gramelis Attorneys Family Lawyers Sydney CBD
If you are dealing with a separation involving disputed recordings in family law property/financial proceedings or parenting/custody proceedings in the Federal Circuit and Family Court of Australia or proceedings involving family violence allegations, early legal advice can make a significant difference to how the Court ultimately views your evidence.
The best family lawyers understand these principles and apply them strategically. Others risk making costly mistakes that can impact on your future. At Gramelis Attorneys Family Lawyers we know how these principles work in practice. Without that understanding, you and your case can be exposed to unnecessary risk.
When it’s all on the line, don’t risk it. Contact Gramelis Attorneys Family Lawyers to book a consultation with one of our expert family lawyers.
GRAMELIS ATTORNEYS
FAMILY LAWYERS
Call us on 1800 888 FAM (1800 888 326)
Or email us at attorneys@gramelis.com.au
Helpful Links:
- Family Law Act 1975 (Cth)
- Surveillance Devices Act 2007 (NSW)
- Evidence Act 1995 (Cth)
- Telecommunications (Interception and Access) Act 1979 (Cth)
- DW v R [2014] NSWCCA 28
- Rathswohl v Court [2020] NSWSC 1490
- Chao v Chao [2008] NSWSC 584
- Latham & Latham [2008] FamCA 877
- Huffman & Gorman [2014] FamCA 150
- Huffman & Gorman (No 2) [2014] FamCA 1077
- Gorman & Huffman & Anor [2016] FamCAFC 174
- Corby & Corby [2015] FCCA 1099
- Janssen & Janssen [2016] FamCA 345
- Masri & Masri [2017] FamCA 539
- Jasper & Corrigan (No 2) [2017] FCCA 1467
- Chen & Chen and Ors (No 4) [2017] FamCA 1187
- Hayes & Hayes [2020] FamCA 1057
- Callahan & Callahan [2014] FCCA 2930
- Najm & Najm [2022] FedCFamC1F 87
- Mornony & Nicolle (No 2) [2023] FedCFamC1F 31
- Almeras & Velez (No 2) [2024] FedCFamC2F 1117