To record or not record...?

Audio Recording


Published 8 July 2016


In South Australia, pursuant to Section 4 of the Listening And Surveillance Devices Act 1972, it is illegal to intentionally use any listening device to overhear, record, monitor or listen to any private conversation, without the consent, express or implied, of the parties to that conversation. 

In addition, the Commonwealth Evidence Act 1995 at section 138 gives the Court discretion to exclude improperly or illegally obtained evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained improperly or illegally.

Nevertheless, parties to family law proceedings are increasingly asking the Court to take into account evidence by way of audio or video recordings, which have often been obtained without the consent or indeed the knowledge of the other party.

In the recent Family Court case of Huffman & Gorman (No. 2) [2014] FamCA 1077, a father had secretly recorded conversations with the mother of his children due to concerns he held for their safety in her care. Judge Hannam stated that "unlawfulness does not of itself, make the evidence inadmissible..... the court is required to balance the seriousness of the husband's conduct in secretly recording the conversations against the potential for harm to children if the evidence is not admitted."

In that case the evidence was admitted and relied upon in the husband's favour. But the Court always has a discretion to exclude such evidence, and even if the evidence is admitted, it can backfire on one or both parties. For instance, one party may try to provoke the other party to react whilst being recorded (which makes the first party look bad), or worse, will involve children in the recording. Such manipulation of children in particular is taken very seriously by the Court and can have serious negative consequences for those who take such steps.

In these times of ready access to technology capable of instant and covert recording, the temptation to record interactions between estranged spouses can be strong, but it is not without its risks. You should always seek legal advice if you are considering the need to take such action. 


Shelley O'Connell