1 March 2022, By Tom Hartley of Hartley Family Law
In Queensland, it is lawful to record a conversation with another person if you are a party to that conversation, even where you are recording the conversation without the other person’s knowledge.
As it is illegal to record conversations you are not a party to, parents recording their children’s telephone conversations or FaceTime with the other parent, can fall foul of the Queensland legislation.
The legality of recording someone over the phone is also more complex as it involves federal law. The Australian federal legislation restricts the use of recording devices connected to a phone. To legally record a telephone conversation in Queensland, a person must be a party to the conversation and use a recording device that is not connected to the phone, such as a dictaphone.
The privacy legislation differs between the States and Territories of Australia. In other States like New South Wales where it is illegal to secretly record private conversations, there are a raft of cases in the family law courts where parents have sought to have illegally obtained recordings admitted into evidence.
While it might be tempting to hit record on all conversations with your ex, recordings made secretly can often do more damage than good in a family law matter. The probative value of a recording must be weighed against the criticism a parent may face for secretly recording their ex-partner or children.
In cases of child abuse, neglect or serious allegations of family violence, the Family Court has found that protecting children from a potentially violent parent outweighs the undesirability of using illegally obtained voice recordings (for example, see Huffman v Gorman which is a case relating to the admissibility of secret recordings in New South Wales).
However, in many cases where recordings have been borne only from high conflict or mistrust, the family law courts have been critical of a parent secretly recording the other parent or their children’s interactions with them as it calls into question whether they can promote the children having a meaningful relationship with the other parent.
In parenting matters the family law courts are also cognisant that the parent recording a conversation will be on their best behaviour as they are aware the conversation is being recorded. The courts are also critical of leading questions being put to children in recorded conversations such as ‘daddy hurts you doesn’t he’ and ‘you don’t want to see mummy do you’.
In the context of financial matters, voice recordings can have their place in proving facts or corroborating or validating other evidence. For example, in Jasper & Corrigan (No.2), the applicant sought to rely upon secret recordings of conversations she had with the respondent to prove they were in a de facto relationship.
Prior to recording conversations or seeking to rely upon a voice recording in a family law matter, we recommend that you obtain legal advice from an experienced family lawyer. While secret recordings can be probative evidence in the right case, they can also backfire against the party seeking to rely upon them. You are most welcome to contact one of our experienced family lawyers to see how we can assist.