Can a Secret Recording Be Used as Evidence?

You have a recording of your ex on your phone. Maybe it caught a threat. Maybe it caught them saying something you are certain a court should hear. And you are wondering two things at once: will this help me, and could having it get me into legal trouble?

Here is the plain answer. Yes, a secret recording can sometimes be used as evidence in family law. But it is not automatic, and in New South Wales the act of making it can itself be a criminal offence. Whether you can rely on it comes down to two questions: was the recording lawfully made, and if it was not, will the court let it in anyway?

Can you actually use it? The short version

Before the detail, here is where most people land.

There is a possibility it could be admissible if:

• Even though you did not have the other party’s consent, which is an offence in New South Wales, you were part of the conversation and recording it was reasonably necessary to protect your lawful interests, for example to prove threats or family violence you could not show any other way.
• Even if it was made unlawfully, the court decides to admit it because its value as evidence outweighs the way it was obtained. That discretion sits in s 138 of the Evidence Act 1995 (Cth).

You likely cannot, or should not, rely on it if:

• It secretly records your children, or was planted in a child’s bag or belongings.
• You recorded a conversation you were not part of.
• There was no genuine lawful-interest reason and you recorded it “just in case”.
• Letting it in would do more harm than good to your case, or it damages your own credibility.

The lawful-interests exception is the one that helps most separating parents. The rest of this page explains how each of these plays out.

Is NSW a one-party or all-party consent state?

This is where a lot of people get caught out, because most of what you read online gets it wrong.

New South Wales is an all-party consent state, not a one-party state. Under s 7 of the Surveillance Devices Act 2007 (NSW), recording a private conversation is an offence even when you are one of the people in it, unless every principal party consents, or the recording was reasonably necessary to protect your lawful interests under s 7(3)(b)(i).

Being in the room, or on the call, is not enough on its own. For an individual, the maximum penalty is a fine of up to 100 penalty units (currently $11,000 in NSW), five years in prison, or both.

The one-party idea, that any participant can record, applies more cleanly in states like Queensland and Victoria, and with conditions in the Northern Territory. If your matter is in NSW, that is the wrong rule to rely on.

What counts as a listening device and a private conversation

So is it legal to record a conversation in NSW? Only in narrow circumstances, and whether you are in them turns on two definitions. A listening device is any device that can record or overhear a conversation, which today usually means the phone in your pocket. A private conversation is one the people talking would reasonably expect not to be recorded by anyone else. Those definitions sit in s 4 of the Act. Record a private conversation without the others knowing, in person or over the phone, and you are squarely in the territory the law covers.

When the court will let an unlawful recording in

Say the recording was made unlawfully. That is not always the end of it.

The court has a discretion under s 138 of the Evidence Act to admit improperly or illegally obtained evidence when its value to the case outweighs the way it was obtained. In plain terms, the court weighs how much the recording proves against the fact that the law was broken to get it.

That balance is why there is no guaranteed answer. Because family violence is genuinely difficult to prove any other way, a recording that captures it can carry real weight in that balancing. A recording made “just in case”, with no real reason at the time, gets far less sympathy. If your matter is already before the court, a family court lawyer can tell you how a judge is likely to weigh what you have.

Recording your children or the other parent

This is the one to be most careful about.

Recordings of children, recordings planted in a child’s belongings, or recordings of the other parent made through or around the children, are routinely excluded and viewed poorly by the court, even when the parent who made them meant well.

The reason is straightforward. The court’s first concern in any parenting matter is the best interests of the child, a principle that runs through the Family Law Act 1975 (Cth). Drawing a child into a recording strategy, secretly taping them, or using them to gather evidence tends to say more about the parent who did it than about the parent they were trying to catch. If children are part of your matter, talk to a child custody lawyer before you record anything involving them.

The risk of pressing record

Before you record, weigh what it can cost you.

The first risk is criminal. If the recording was unlawfully made in NSW, you can face prosecution, with a maximum penalty of up to five years in prison. You could end up charged over the very evidence you hoped would help you.

The second risk is your credibility. Even when a recording gets in, it can be interpreted against the person who made it. Secretly recording your ex over weeks or months can look calculating, and a judge can read it as a sign of how you operate rather than proof of anything about them. The evidence you gathered to strengthen your position can quietly weaken it.

What the cases show

A few threads run through the decisions on secret recordings.

The first is timing. The court asks whether the recording was reasonably necessary at the moment you made it, not whether it turned out to be useful later. A recording made in genuine need is treated very differently from one justified with hindsight.

The second is volume. In Nagel & Clay [2020] FamCA 326, one party had made more than eight hours of recordings across over 400 changeovers. The sheer scale of covert recording is the kind of thing a court notices, and not in the recorder’s favour.

The third is the balance between what a recording proves and the cost of how it was obtained. That weighing of probative value against prejudice is what decided Huffman & Gorman (No 2) [2014] FamCA 1077 and Garner & Garner [2016] FamCA 630, and it fell out differently in each, which is why none of this is automatic.

The fourth is the gap between getting evidence in and having it help you. In Guzniczak & Rogala [2017] FamCA 758, a recording was admitted but ultimately interpreted against the husband who made it. Admissible does not mean persuasive.

Your defences if you did record

If you have already made a recording, the lawful-interests exception is the thread that matters most.

It is the same s 7(3)(b)(i) exception from earlier. If you were a participant and the recording was reasonably necessary to protect your lawful interests, making it may not have been an offence at all. What “reasonably necessary” means is judged on the facts. A recording made because you genuinely feared for your safety, or needed to show family violence you could not prove any other way, sits far closer to that exception than one made to gain an edge. Whether making it was lawful, and whether the court will use it, are really the same thread seen from both ends.

Before you press record, get advice

A secret recording is one of those decisions that feels like it can only help, and can quietly do the opposite. Before you make one, or if you already have and you are not sure what to do with it, get clear advice on where you stand.

That is what me and my team do. If your matter involves an AVO or family violence, an AVO lawyer can tell you whether a recording helps or hurts your position, and what to do instead if it hurts. Book a free discovery call on 1300 614 732 and we will talk you through your options, with no pressure and no judgment.