When a relationship is deteriorating or has ended, it is understandable that you might wish to collect audio evidence of your partner or former partner in anticipation of future Court proceedings. Audio recordings of phone calls or face-to-face conversations and arguments can demonstrate your partner’s conduct towards you or your children and may offer you a sense of reassurance and safety. However, given the secretive nature of many recordings, it is important to know their legality.

What does the Law say?

Recording laws can vary drastically from state to state; some states only require one party to consent to the recording others require that all parties consent. The law in NSW, as established by the Surveillance Devices Act 2007, sets out that a person must not knowingly install, use or cause to be used or maintain a listening device … to record a private conversation to which the person is a party. However, this does not apply if:

• all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
• a principal party to the conversation consents to the listening device being so used and the recording of the conversation —
  • is reasonably necessary for the protection of the lawful interests of that principal party, or
  • is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

This means that unless the other party (e.g., your partner) consents to the recording or you if the recording is ‘reasonably necessary to protect your lawful interests’, you cannot record a conversation (unless you don’t wish to show an external party). This rule is still slightly ambiguous as what your ‘lawful interests’ are depends on your specific circumstances. As there’s no strict definition, we can look at what the Courts have previously considered in related cases to get an idea of what can constitutes one’s lawful interest.

Cases involving audio recordings

In a criminal matter, a woman complained to the police that the accused threatened to disseminate sexually explicit images of her. Later, the woman found one of these images on her driveway to which she then took to police. The woman later recorded a conversation with the accused who told the woman that if she did not have sex with him for 3 months he would distribute the images. The Court held the woman recorded the conversation to protect her lawful interests and was therefore legal. (R v EP [2019] ACTSC 89)

We can also look at this issue in the family law context. In one instance, a father secretly recorded a conversation with his wife – her abusive comments suggested that she had been abusing their children. The Court found these recordings were reasonably necessary to protect the father’s lawful interest as he needed to protect himself from his wife’s accusations that he fabricated the conversations and was lying about child abuse. (Latham v Latham [2008] FamCA 877)

In another case, a woman had made several allegations to the Court that her former partner was breaching an intervention order (restraining order) but she wasn’t able to prove the allegations. On one occasion, the former partner was secretly recorded by the woman during handover of access to their child proving that he breached the intervention order. The Court found the recording to be in the woman’s legal interest as she had genuine concern for their own safety and was thus legal. (Groom v Police (2015) 252 A Crim R 332; [2015] SASC 101)

Finally, in a 2016 case, a father installed a listening device in the mother’s home to corroborate his belief of violence against the children. The father later made accusations that the mother had assaulted one of the children. It was found that the recording was legal as it was in the lawful interest of the father to protect the children from harm. (Gawley & Bass (2016) 313 FLR 346; (2016) 55 Fam LR 396; [2016] FCCA 1955)

Summary

In NSW generally you won’t be allowed to record a telephone or face-to-face conversation with another person unless they consent or the recording is reasonably necessary for the protection of your lawful interests. What these interests are is determined by the specific circumstances surrounding the recording. From previous Court judgements, these interests may include protecting yourself or your children from harm or proving that harm is occurring or may occur.