Is It Illegal to Record Someone Without Consent? Separation, Divorce and Parenting

“Is it illegal to record someone without consent?”

If you find yourself in this situation, there are a number of factors that you should consider and obtain legal advice about before you decide to make a recording. This is discussed below. 

When you might consider making a recording

Relationships and family dynamics are complex, and each family is different. As family lawyers, we often hear clients expressing their frustration because the way their former partner is presenting themselves in their family law negotiations are very different to the reality of what the client has experienced during their relationship with them. It can be very difficult for those people we assist to try and explain this to someone who has not lived through this experience.

Reasons why you may feel the need to record your former partner or another third party in the context of your family law case might be for your own legal protection to try and demonstrate what goes on behind closed doors. This is particularly in cases where there has been domestic violence or allegations of domestic violence in the relationship because there is often very little independent evidence that you can produce to support your case. 

Other reasons why you might consider making a recording include, for example: because you are concerned that your child is at risk because of your former partner’s parenting abilities and/or lack of ability to protect the child from harm; or you are trying to demonstrate that your child has particular views about the other parent or their parenting arrangements.

There is sometimes a belief that recording conversations with children or a former partner will be beneficial for the person seeking to rely on the recording as evidence in their family law case. However, this is not always so and there are a number of important considerations that you should be aware of before doing so. 

It is important to understand that the law that governs the making of private recordings is different in each state and territory in Australia. There are also further matters that should be considered once a recording is made, including the distribution of that recording, your obligations to disclose the recording, how it will be considered by the Court, and what consequences may flow from making a recording that is unlawful.

Is it legal to record a conversation in Queensland (or anywhere else in Australia)?

There is a distinction between making a recording in public or with the consent of all parties involved, as opposed to secretly recording a private conversation without the consent of the other person/s.

The law in Queensland is different to other states and territories in Australia. It is also important to understand that there may be further laws or rules that apply to a particular situation, for example:

1. there are additional federal laws that apply to recordings over the phone (this is to prohibit the interception of communications passing over a telecommunications system, so you should obtain specific advice before you use software such as a mobile phone application or hardware attached to a phone to record a private phone conversation);
2. there may also be rules preventing you from making recordings in places such as courtrooms and prisons. 

Generally, issues arise if you secretly make a recording of a private conversation, i.e. without the consent of all parties. However, unlike other states and territories, in Queensland it is not a criminal offence to record a private conversation if you are a party to it, even if you do not have consent. You cannot however leave a recording device in a room to record a private conversation that you are not a party to.

If a recording has been made, consideration then has to be given to the use of that recording.

Even if a private recording has been made lawfully, you cannot distribute it to anyone unless there is a lawful exception.

The use of a recording for the purposes of legal proceedings is one of these exceptions, but you should obtain legal advice specific to your circumstances before you do so.  

Given that each state has different laws governing the making of recordings, you must consider the relevant laws both in the location of where the recording is made and then in the state that you intend to use the recording in after it is made. 

Recording Conversations in Family Law Matters

Before you make a recording, it is important to be aware that you may be required to later disclose the recording as part of your family law proceedings, even if the recording didn’t achieve what was intended when you made it and/or ends up being unfavourable to your case. This is because the law provides that parties have an ongoing obligation to disclose all documents and information that they have in their possession which is relevant to an issue in dispute (this would extend to recordings).

If you illegally make a recording, it will be inadmissible for the use in Court proceedings unless an exception or certain circumstances apply. If you seek to rely on the recording, it will be for the Court to consider whether the recording will be admitted into evidence and to determine what weight they will give to the evidence. 

For example, given the nature of domestic violence, in such matters the Court would consider how difficult it is to obtain evidence of domestic violence without impropriety or contravention of the law. Each case is considered and determined based on the specific facts and circumstances at the time, and there is no set approach.  

The final matter to consider then is if the recording is admitted into evidence (either upon your application or upon the application of the other party seeking to rely upon it following disclosure) how the Court will view the recording?

This ultimately depends on the particular circumstances of the case however, it is a very important consideration because the Court will not necessarily make the same finding about the recording as what you had intended.

A common example is a parent who may secretly record an argument that they are having with the other parent. While the recording might show the other parent to be raising their voice and speaking aggressively, the Court will be cognisant of the fact that the parent making the recording knew that the conversation was being recorded, so their interactions may not be an accurate representation of their usual behaviour especially if there is other evidence which supports this.

Another simple example to demonstrate the point is a parent who may make a recording of their young child expressing views about the other parent or their parenting arrangements. During a recorded conversation with the Mother, a child might say “no” after repeatedly being asked if they want to spend time with their Father. Even though the recording may have been made lawfully, when put as evidence before the Court, the Court may consider that the child is just telling the Mother what she wants to hear, or the child has been coached to say a particular thing.

It would be detrimental to the Mother’s case if such a finding was made because the Court may conclude that: the Mother is directly involving the child in the parent’s dispute; she lacks insight; and she lacks the ability to promote the child having a meaningful relationship with the other parent which is one of the factors the Court must consider when determining parenting arrangements under the Family Law Act.

The Court is a Court of impression and when it comes to recordings, one of the factors that they will consider is what the intention behind the party making the recording was when they set out to do it.

Other than a negative finding being made against you that does not assist your case, there are a number of other consequences that may flow from illegally recording another without their consent, including you may be referred for criminal charges or a costs order may be made against you. 

What To Do First, Before Gathering Evidence

We understand that going through a separation or divorce is a stressful time. It is not always easy to know what your options are when it comes to relationship breakdowns and parenting.

Now that you have some basic knowledge around the question, ‘Is it illegal to record someone without consent?”, there are steps you can take to help navigate your circumstances, safely and legally. Seeking specialist legal advice about your concerns about the other parent and your children’s safety, will provide you clarity as to what your options are, and ensure you don’t compromise yourself.

While you may have reasonable concerns surrounding your former partner or spouse that you feel the need to record for evidence, seeking legal advice, before you do so, even if it is just one appointment, can be the difference between achieving the outcome you want, and a negative outcome that otherwise, you may not have foreseen.