Can Secret Recordings Be Used in Family Law? High Court Update
The phone in your pocket is no longer just a phone. Smartphones, smart watches, doorbell cameras and other devices make it easy to record conversations and events at any time.
It is common for people involved in family law disputes to say, “I recorded it–have a listen”. But before making a recording without the person’s knowledge, it is important to understand two separate questions:
Was it lawful to make the recording?
Will the court allow the recording to be used as evidence?
The answer to both questions will depend on the circumstances of each case.
The recent High Court decision
In Potter (A Pseudonym) v The King 2026 HCA 25, the High Court considered a covert recording in the context of a criminal prosecution for rape.
In that case, a wife secretly recorded a conversation with her husband in which he made admissions about raping her while she was asleep. She later replayed the recording to remind herself why she should not return to the relationship.
The High Court found that the recording was relevant to protecting the wife’s right to “bodily autonomy and integrity”- that is, her right to control what happens to her body and to be safe from sexual violence. The Court described the right not to be raped as an “interest deserving of the very strongest protection”.
This decision does not create a general right to secretly record another person. It does not mean that a person involved in a family law dispute can automatically record an ex-partner, child or family member without legal consequences.
Recording laws continue to vary between states and territories, and a court will assess the particular circumstances of each case.
Is it legal to secretly record a conversation?
In many Australian states and territories, secretly recording a private conversation is a criminal offence.
In Victoria, the Surveillance Devices Act 1999 (Vic) restricts the use of listening devices to record private conversations without consent. In some circumstances, an exception may apply where a person reasonably believes the recording is necessary to protect their lawful interests. However, that exception is limited and depends heavily on the facts and circumstances of the case.
Secretly recording, sharing or relying on private conversations can have serious consequences. In Victoria, unlawful conduct involving surveillance devices may result in substantial fines, imprisonment for up to two years, or both.
For that reason, you should obtain legal advice before making, sharing or relying on a covert recording.
Will the Family Court use the recording?
A recording (lawful or otherwise) is not admitted into evidence merely because it is produced by one party. The court must still decide whether it should be admitted into evidence.
This is not simply a question of whether the recording exists. The court must consider whether it genuinely helps prove an important fact relevant to the determination of a specific issue, whether it is reliable, and whether allowing it into evidence would be fair.
In parenting matters, the court may consider issues such as:
Whether the recording is complete, accurate and genuine
Whether the recording has been edited, staged or taken out of context
Whether the recording assists the court to decide an important issue
Whether making the recording affected a child’s relationship with either parent
Whether using the recording could cause harm to a child’s wellbeing
Whether the recording was made for a legitimate protective purpose, rather than to provoke, embarrass or build a case against the other parent.
A recording may be allowed into evidence, but that does not mean a judge will consider it reliable or give it significant importance. The court may admit a recording but give it little weight. Equally, a recording may be excluded altogether if it adds little useful information, was obtained unfairly or is likely to cause unfairness in the proceedings.
What past cases show
Past family-law cases show that courts do not automatically allow secret recordings to be used. The court will look carefully at why the recording was made, what it captures and whether using it would assist the court to determine the issues in dispute.
Examples from family law cases
Simmons & Simmons [2013] FCCA 304 – A mother placed a recording device on a child before supervised time with the father. Although the recording was admitted, the Court strongly criticised the mother’s conduct. The recording also raised concerns about the mother’s judgement and her understanding of the child’s needs.
Janssen & Janssen [2016] FamCA 345 – The Court admitted recordings that supported allegations of family violence. The case recognised that family violence occurring in private can be difficult to prove through other evidence.
Jasper & Corrigan (No.2) [2017] FCCA 1467 – The Court admitted secret recordings but confirmed that allowing a recording to be played does not mean a judge will treat it as reliable or important. The judge must still decide what weight, if any, to give the recording.
Guzniczak & Rogala [2017] FCCA 758 – The Court found that the husband had anticipated the family law dispute and had provoked the wife before secretly recording her. The Court criticised his conduct, and the recordings did not have the outcome he may have intended.
Coulter & Coulter (No.2) [2019] FCCA 1290 – The Court admitted videos of changeovers between the parents because the mother had legitimate concerns for her safety. However, recordings of the children’s private conversations with the father were excluded.
Nagel & Clay [2020] FamCA 326 – The Court excluded many hours of covert recordings made by the mother. The Court found that the recordings added little useful evidence, were unfairly prejudicial, and created issues about how the material had been disclosed.
Better ways to gather evidence
There are often safer, more reliable and more appropriate ways to gather evidence for family law proceedings. Depending on the issues in your matter, this may include:
Requesting a Family Report or Child Impact Report
Asking the Court to appoint an Independent Children’s Lawyer to represent your children’s interests
Providing relevant text messages, emails or other written communications
Obtaining statements or reports from relevant professionals, such as doctors, school staff, psychologists
Issuing subpoenas to relevant organisations or professionals, including schools, medical practitioners and psychologists
Asking the court to obtain relevant information from Victoria Police or the Department of Families, Fairness and Housing.
The key takeaway
Just because you can make a recording doesn’t mean you should.
A covert recording may seem like useful evidence, but making or relying on one can create legal, ethical and practical risks. It may be unlawful. It may be excluded by the court. It may also damage your credibility if the recording is incomplete, edited, staged or presented without proper context.
Before making, sharing or relying on a covert recording, obtain legal advice. Ultimately, the court will consider whether the recording is genuine, complete, reliable and useful in deciding the issues before it.
Need advice about a covert recording?
Every situation is different. Anne-Louise Pham, Head of Family Law, can provide confidential advice about your circumstances and help you decide the most appropriate next steps.
Contact Anne-Louise Pham to discuss your family-law matter.
