Smartphones have made it incredibly easy to record conversations, arguments and changeovers. In family law matters, particularly cases involving allegations of family violence, clients will sometimes arrive with hours of audio recordings, videos or telephone calls that they believe prove what has been happening behind closed doors.
But there is no simple rule that says a secret recording can — or cannot — be used in family law proceedings.
There are really three separate questions:
- Was it lawful to make the recording in the first place?
- Will the Court allow the recording to be used as evidence?
- What does the act of making the recording itself tell the Court about the person who made it?
That third question is sometimes overlooked. A recording intended to prove the other person’s conduct can instead become evidence about the conduct, judgment or motivations of the person doing the recording.
Recording laws are different in every State and Territory
Before considering whether a recording can be used in family law proceedings, it is important to distinguish between the law governing making the recording and the law governing its admissibility in Court.
Laws regulating listening and surveillance devices are primarily State and Territory laws. They are not uniform across Australia.
That means conduct which is lawful in Queensland may be unlawful in New South Wales, South Australia or another jurisdiction.
What is the law in Queensland?
In Queensland, the starting point is the Invasion of Privacy Act 1971 (Qld).
Section 43 generally makes it an offence to use a listening device to record a private conversation. However, critically, that prohibition does not apply where the person using the listening device is themselves a party to the private conversation.
In practical terms, if you are participating in a conversation in Queensland, you can generally audio-record that conversation without first obtaining the other person’s consent.
That does not mean you can secretly place a device somewhere and record private conversations between other people when you are not a participant. Doing that is generally unlawful.
There is also an important distinction between making a recording and publishing or communicating it.
Section 45 of the Queensland Act restricts the subsequent communication or publication of a private conversation recorded by a participant, although there are important exceptions. Those exceptions include communication in the course of legal proceedings and communication which is no more than reasonably necessary for the protection of the person’s lawful interests.
The Queensland position should not be assumed to apply elsewhere in Australia. The legislation is substantially different between jurisdictions, and legal advice should be obtained before deliberately making covert recordings.
But family law is Commonwealth law — so what happens when someone wants to use a recording in Court?
The fact that a recording was lawful to make does not automatically make it admissible evidence.
Equally, the fact that a recording was obtained improperly or unlawfully does not necessarily mean that a federal family law court can never consider it.
The Evidence Act 1995 (Cth) applies to proceedings in the Federal Circuit and Family Court of Australia, subject to particular provisions of the Family Law Act 1975 (Cth).
Since 10 June 2025, section 102NL of the Family Law Act provides that a number of provisions of the Evidence Act do not ordinarily apply in child-related proceedings and, in some circumstances, property or other non-child-related proceedings. Importantly, however, Part 3.11 of the Evidence Act is not excluded.
That means section 138 of the Evidence Act remains particularly important when dealing with covert recordings.
Section 138 deals with evidence that has been obtained improperly or in contravention of Australian law.
The starting position is that improperly or illegally obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.
The Court can consider matters including the probative value and importance of the evidence, the nature of the proceeding, the seriousness of the impropriety or illegality, whether it was deliberate or reckless, and the difficulty of obtaining the evidence without resorting to improper or unlawful conduct.
The family law cases demonstrate how that balancing exercise operates in practice.
Badger & Badger & Ors [2013] FMCAfam 124 — recording excluded
In Badger & Badger & Ors [2013] FMCAfam 124, a telephone conversation had been recorded by a litigation guardian who was also a police officer.
The Court did not admit the recording.
The case is a useful reminder that there is no special rule in family law that automatically permits a party to rely upon a recording simply because they consider its contents useful.
The circumstances in which the evidence was obtained remain relevant.
Simmons & Simmons [2013] FCCA 304 — the recording was admitted, but the mother was heavily criticised for putting a recording device on the child
Simmons & Simmons [2013] FCCA 304 demonstrates perhaps better than any other case why admissibility and whether making the recording was sensible are two entirely different questions.
The mother placed recording equipment on a child before the child went to spend supervised time with the father.
The recording assisted the Court in making findings about the father’s behaviour and was admitted into evidence.
But that did not mean the Court approved of what the mother had done.
Judge McGuire was extremely critical of both parents. His Honour considered the father’s conduct selfish and lacking insight but described the mother’s conduct in sending a child to supervised visits with concealed recording equipment as similarly appalling. His Honour said the parents’ conduct was, at best, naïve and, at worst, capable of amounting to a form of child abuse.
The lesson from Simmons is significant.
Do not confuse a useful recording with good parenting conduct.
Using a child as an evidence-gathering device can itself become highly relevant evidence about parental insight, boundaries and the extent to which a child is being drawn into the parental conflict.
Huffman & Gorman (No 2) [2014] FamCA 1077 — unlawful recordings and family violence
In Huffman & Gorman (No 2) [2014] FamCA 1077, the father alleged that the mother had been violent during the relationship. The mother denied those allegations and relied in part upon the fact that the father had not reported his concerns to police.
The father had recordings of interactions with the mother which supported his allegations.
The recordings had been unlawfully obtained.
However, the Court admitted them.
Of particular importance was the Court’s recognition of the difficulty of proving family violence occurring within the privacy of a relationship. The Court referred to the notorious difficulty of obtaining evidence of family violence occurring behind closed doors.
The Court concluded, in substance, that the desirability of receiving evidence relevant to family violence in proceedings concerned with the best interests of children outweighed the undesirability associated with the unlawful manner in which the evidence had been obtained.
That does not create a blanket “family violence exception” to surveillance legislation.
What it demonstrates is that where a recording provides genuinely important evidence about violence, risk or the safety of a child or parent, that significance can weigh heavily in the s 138 balancing exercise.
Janssen & Janssen [2016] FamCA 345 — why recordings can be important in family violence cases
Janssen & Janssen [2016] FamCA 345 is one of the most frequently cited family law decisions concerning covert recordings and family violence.
The mother made serious allegations of family violence and sexual abuse against the father. She had recorded conversations with him which included material relevant to threats against her and the children.
The recordings were admitted.
Justice McClelland recognised the particular evidentiary problem presented by family violence: it frequently occurs privately, without independent witnesses.
His Honour observed that it is “notoriously difficult to obtain evidence of family violence which takes place behind closed doors.”
The Court also considered the possibility that a perpetrator’s presentation to outsiders may be very different from their behaviour within the family home. The evidence raised the possibility that the father could present as charming and agreeable socially while being intimidating or frightening privately.
That observation remains particularly important in coercive control cases.
Family violence is rarely proved only by photographs of injuries or police reports. A contemporaneous recording may, in an appropriate case, demonstrate tone, threats, intimidation, degradation or controlling behaviour that would otherwise be extremely difficult to establish.
Garner & Garner [2016] FamCA 630 — recordings showed family violence
In Garner & Garner [2016] FamCA 630, the wife had made recordings of the husband without his knowledge. The recordings captured him swearing at her, calling her names and threatening suicide.
The recordings ultimately came before the Court with the consent of the parties.
Justice Berman considered their contents highly relevant to the allegations of family violence and observed that the father’s recorded language fell within the statutory concept of family violence.
The significance of Garner is therefore not merely that the recording was admitted.
It demonstrates what a recording may actually prove.
Section 4AB of the Family Law Act defines family violence broadly. It is not confined to physical assault. It includes violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful.
A recording of threats, intimidation, repeated degradation or controlling behaviour may therefore have substantial evidentiary value even where it does not record physical violence.
Jasper & Corrigan (No 2) [2017] FCCA 1467 — admissibility does not equal weight
Jasper & Corrigan (No 2) [2017] FCCA 1467 was not a parenting case. It concerned whether a de facto relationship existed and associated property proceedings.
The applicant had secretly recorded conversations with the respondent concerning the nature of their relationship.
Because the recording occurred in New South Wales, the Court was required to consider the applicable NSW surveillance legislation.
Judge Altobelli considered the evidentiary difficulty confronting the applicant. On the central issue, it was essentially one person’s word against the other’s and there were only two direct witnesses.
The Court permitted the evidence to be led.
But Judge Altobelli made an extremely important distinction: a ruling that evidence is admissible is not a ruling about the weight that will ultimately be attached to it.
A recording can therefore get through the evidentiary gate and still do very little to advance a case.
Context matters.
How the conversation arose matters.
What occurred before and after the recorded extract matters.
The credibility of the recorder matters.
Guzniczak & Rogala [2017] FamCA 758 — when the recording backfires
Guzniczak & Rogala [2017] FamCA 758 is the cautionary tale for anyone thinking that covert recording is a clever litigation strategy.
Before separation, the husband secretly recorded interactions with his wife in anticipation of family law proceedings.
The Court concluded that he had deliberately created situations designed to generate favourable evidence.
Judge Benjamin considered that the husband had effectively goaded the wife and set traps in which he attempted to present himself as the reasonable victim and her as the aggressor.
His Honour described aspects of the conduct as “theatrical and manipulative” and was satisfied the husband knew which “buttons to push” to upset or aggravate the wife.
The recordings therefore did not achieve what the husband apparently intended.
Instead, the manner in which he created and recorded the interactions became relevant to the Court’s assessment of him.
This is an increasingly important point in contemporary family violence cases.
Constant surveillance, monitoring, manufacturing confrontations or deliberately provoking another person for the purpose of collecting evidence may itself be relevant when the Court is considering allegations of coercive or controlling behaviour.
A person cannot assume that because they are holding the phone, the recording is evidence against only the person on the other side of the camera.
Coulter & Coulter (No 2) [2019] FCCA 1290 — safety recordings allowed, children’s private conversations excluded
Coulter & Coulter (No 2) [2019] FCCA 1290 provides one of the clearest demonstrations of the distinction between legitimate safety-related recording and intrusive surveillance.
The mother had made video recordings of changeovers occurring at her home without the father’s knowledge.
She also secretly recorded private conversations between the father and the children.
The Court treated those two categories of evidence very differently.
The changeover videos
The mother alleged that the father had behaved abusively, coercively and controllingly towards her and said she was concerned about her safety during changeovers.
Judge Heffernan accepted that she had a legitimate interest in her personal safety and in preventing the children from being exposed to parental conflict.
The Court concluded that the video recordings of the changeovers were made in protection of her lawful interests and permitted them to be used.
The children’s conversations
The private recordings between the father and the children were different.
The mother was not a participant in those conversations.
The Court regarded the recordings as a serious invasion of the privacy of both the father and the children and as a significant breach of the children’s trust.
Importantly, this was so even though the recordings apparently had some evidentiary value in relation to allegations that the father was involving the children in adult issues.
The Court concluded that the privacy and relationship considerations outweighed the value of admitting the evidence and excluded the recordings.
Coulter therefore draws an important line.
Recording an interaction in which you are involved because you genuinely fear violence is very different from secretly surveilling your children’s private relationship with their other parent.
Nagel & Clay [2020] FamCA 326 — eight hours of recordings did not make the case stronger
More evidence does not necessarily mean better evidence.
In Nagel & Clay [2020] FamCA 326, the mother attached more than eight hours of digital audio and video recordings to her trial affidavit. They included interactions at changeovers and around separation which she said demonstrated that the father was verbally and physically violent towards her.
The father argued, among other matters, that the recordings presented only a selective snapshot when there had been hundreds of changeovers between the parties.
The Court excluded the recordings.
Their probative value was limited and was not sufficient to overcome concerns including unfair prejudice and the potential for the evidence to mislead.
Significantly, because the material had already been provided to the family report writer, the Court directed the report writer not to take the recordings into account when preparing the report.
Nagel illustrates another recurring problem with recordings: selection bias.
Eight hours sounds substantial until it is understood as eight selected hours extracted from hundreds of interactions over many years.
A Court is entitled to ask why those particular encounters were recorded, what happened during encounters that were not recorded and whether the recordings fairly represent the relationship.
What principles emerge from the cases?
Taken together, these decisions do not establish a rule that covert recordings are either good or bad evidence.
Instead, they demonstrate that purpose, proportionality and context matter.
A recording made because a person genuinely fears for their safety and needs to document threats or family violence is in a very different category from surveillance undertaken as part of an evidence-gathering campaign.
The Court is more likely to see genuine forensic value in a recording where it captures matters such as:
- threats or intimidation;
- family violence;
- coercive or controlling behaviour;
- conduct affecting the safety of a child or parent;
- behaviour occurring privately which would otherwise be extremely difficult to prove; or
- a significant disputed event where there is little other available evidence.
But recordings carry considerable risks where a parent:
- records children or uses children to obtain evidence;
- secretly records a child’s private conversations with the other parent;
- records vast amounts of ordinary interaction hoping to find something useful;
- deliberately provokes or “goads” the other person;
- creates situations for the purpose of obtaining favourable evidence;
- selectively records interactions in a way that may create a misleading impression; or
- engages in persistent monitoring or surveillance.
A recording can become evidence of coercive control
This final point deserves particular emphasis.
Clients sometimes think the only question is: “What did I manage to record the other person saying?”
The Court may ask a different question:
“Why were you recording them?”
A person who records because they are frightened of what occurs during changeover, because threats are being made privately, or because they need contemporaneous evidence of family violence presents a very different factual picture from someone systematically monitoring a former partner, surveilling their interactions, secretly recording the children, manufacturing confrontations or deliberately provoking responses.
Section 4AB of the Family Law Act defines family violence as violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.
Depending upon the circumstances, a pattern of surveillance and recording could therefore itself form part of the evidence relevant to allegations of controlling conduct.
That is precisely why covert recording should not be approached simply as a litigation tactic.
So, should you record your former partner?
There is no universal answer.
In Queensland, you can generally make an audio recording of a private conversation if you are a party to that conversation. That rule should not be assumed to apply in another State or Territory.
There may also be circumstances where recording is entirely understandable — particularly where someone is genuinely concerned about their safety or needs to preserve evidence of threats or family violence occurring without witnesses.
But recording simply to build a family law case is much harder to recommend.
The cases demonstrate why.
A recording may be excluded. It may be admitted but given little weight. It may be found to present a distorted snapshot of a much larger relationship. It may expose a serious invasion of a child’s privacy. It may demonstrate poor parental judgment.
And, in the worst case for the person recording, it may demonstrate that they were provoking, monitoring, manipulating or controlling the interaction.
The question is therefore not simply:
“Can I get this recording into evidence?”
A much better question is:
“What will this recording — including the circumstances in which I made it — tell the Court about both of us?”
Need advice about recordings in your family law matter?
If you have recordings you think may be relevant to parenting, family violence or property proceedings, it is important to get advice before relying on them.
The law about making recordings differs between each State and Territory, and even where a recording can be admitted into evidence, the circumstances in which it was made may affect how the Court views it — and you.
Powell Family Law advises clients in Brisbane and the Gold Coast on complex parenting, family violence and property matters, including the use and admissibility of recorded evidence.
If you need strategic advice about how recordings may affect your family law case, contact Powell Family Law to arrange an appointment
