This article addresses whether you can legally record someone and whether the recording can be used as evidence.
In Queensland, a person can legally record a private conversation by way of a listening device (a device capable of recording audio) when one party consents to the recording pursuant to section 44 of the Invasion of Privacy Act 1921 (Qld).[i] The person consenting must be a party to the conversation, and the other person does not necessarily need to be aware or consent to the recording of the private conversation. [ii] A private conversation does not include circumstances where a person would have reasonably expected their conversation to be overheard, recorded, monitored, or listened to by another person, for example, if that person is in a public place with third parties present, shouting or speaking loudly.[iii] A private conversation between a child and their parent would not constitute circumstances where it is appropriate for a person to record the conversation.
Conversely, the Invasion of Privacy Act interacts with s 227A of the Queensland Criminal Code. It is an offence punishable by up to three (3) years imprisonment to visually record another person without that person’s consent, where a reasonable adult would expect to be afforded privacy, for example, a person in a private place engaging in a private act. It is also not within the scope of the Invasion of Privacy Act or the Queensland Criminal Code that a person can legally record a private conversation between a child and their former spouse.
So while, at the very least, a party can legally record the other side in limited circumstances in Queensland, one must consider the obvious risks they may be faced with, particularly when recording conversations in person. If the other side were to notice, they could significantly change their demeanour to be more docile or more aggressive; such behaviour could lead to an act of domestic violence. Further, if one party is recording the other in a manner that is also combined with harassment, stalking, insulting or other inappropriate behaviour, there may be grounds for the recorded party to seek a Protection Order under the Domestic and Family Violence Act.[iv]
Practitioners and parties should also be aware that the legality of recording another person to a conversation does not extend to other states and territories in Australia. It is an offence to use a listening device or optical surveillance device (a device capable of recording visually) to record a private conversation without the consent of all parties in New South Wales, Victoria, South Australia, Western Australia and the Northern Territory.[v] It is an offence to use a listening device to record a private conversation without the consent of all parties in Tasmania and the Australian Capital Territory.[vi] Broadly, in all other jurisdictions, all parties to a conversation must consent to a party to the conversation recording the conversation.
Under no circumstances is a practitioner, party to the proceedings or other person permitted to record electronically (and/or publish) any part of a family law matter including all or part of a hearing, all or part of a trial, a conference, attendance with a family consultant, single expert or other experts ordered by the court or a person who is in the Court premises.[vii] Should it be necessary to obtain evidence from part of a family law matter, a copy of the Court transcript can be ordered via Auscript or further evidence adduced from family consultants or experts in relation to their recollection of a private conversation. The Family Law Act and Rules do not preclude a practitioner or party from taking detailed notes of any part of the family law proceedings; although again those notes would be precluded from being published.
Section 69ZT of the Family Law Act generally provides that portions of the Evidence Act do not apply relevantly in relation to giving evidence, documents, admissions of hearsay, credibility and character (with some exceptions).[i] Section 69ZT is not a blanket exception to the Evidence Act, and Practitioners and parties should head caution that where evidence has been obtained in contravention of Australian law, it is inadmissible unless the desirability of admitting it outweighs the undesirability of admitting evidence. [ii] Section 138(3) of the Evidence Act sets out the circumstances where such “inadmissible” evidence could be admitted, which generally reflects the circumstances listed in section 69ZT(3) of the Family Law Act that the Court must be satisfied that there are exceptional circumstances, the importance of the evidence in the proceedings and the probative value of the evidence.[iii]
Theoretically, if a recording of a private conversation is made in Queensland with one of the participants’ consent, shouldn’t it be automatically admitted into evidence? Practically, Queensland Practitioners and parties should seek guidance from other states and territories in Australia and consider whether there is evidentiary value in the recording and the weight that the Court may apply to the recording vs the weight the Court may apply to the person recording.
Generally, case law suggests that where the recording is bona fide evidence of domestic and family violence, then the recording should be admitted into evidence. In Huffman & Gorman), the father had recorded conversations between him and the mother and made allegations of family violence; the Family Court said, “The desirability of admitting evidence of family violence in a hearing where the best interests of children are paramount outweighs the undesirability of admitting evidence which was obtained unlawfully”.[iv]
The Court has also admitted recordings where the substantive issue in the matter was the existence of a de facto relationship. In Jasper & Corrigan, the Court admitted the recordings where the de facto wife contended that the conversations were about the nature of the relationship. The Court found that “it is her word against his. There are only two witnesses in this case….”[v]
Practitioners and parties should be cautioned by cases such as Guzniczak & Rogala, where the Judge found that the recordings taken by the husband of his wife were an example of “exaggeration of evidence” and in the Judge’s view that husband had “goaded” the wife and set up “traps” where he would present himself as the victim and his wife as the aggressor. The Judge stated, “It was theatrical and manipulative behaviour. The parties had been in a relationship for many years, and I am satisfied that the husband knew what’ buttons to push’ to upset or aggravate the wife.”[vi]
As canvased earlier, it is important to also distinguish that while a party may feel justified to record another person because of the desirability of the evidence, lead to unlawful surveillance. In Leos & Leos,[vii] the father hired a private investigator to record the mother and the two children in an effort to allege that the mother was committed family violence. The Court was satisfied that “the surveillance showed compelling evidence that the mother to some extent was at the time abusing the children by screaming at them, physically chastising them and using appalling profanities and threats which terrified the children”; although ultimately, the recordings were not admitted into evidence on the basis that the mother had conceded that she had exhibited the types of behaviour exhibited on the surveillance material and other third party evidence from a neighbour supported the behaviour alleged by the father.[viii] Despite the findings of the Court, before the trial, the father was arrested and later pleaded guilty to two charges to installing or using a listening device to record conversations and to publishing a conversation; and was sentenced to an 18-month bond and fined $1,000.[ix] The Father was also subject to an Interim Apprehended Violence Order which was later withdrawn
It is important to note that every family law matter is drastically different, and what might be evidence in one matter might be construed entirely different in another matter. Each recording and the circumstances surrounding each recording should be carefully considered to determine whether there is valuable evidence in that recording and to a parties case generally.
[i] Invasion of Privacy Act 1971 (QLD), s 44.
[ii] Ibid, s 42(2).
[iii] Ibid, s 4.
[iv] Domestic and Family Violence Act 2021, s 8(2).
[v] Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 2016 (SA); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 2007 (NT).
[vi] Listening Devices Act 1991 (TAS); and Listening Devices Act 1992 (ACT).
[vii] Family Law Act 1975 (Cth), s 121; Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 15.23.
[i] Family Law Act 1975 (Cth), s 69ZT.
[ii] Evidence Act 1995 (Cth), s 138.
[iii] Family Law Act 1975 (Cth), s 69ZT(3); Evidence Act 1995 (Cth), s 138(3).
[iv] Huffman & Gorman (No 2)  FamCA 1077, 44; See also Janssen & Janssen  FamCA 345, 11.
[v] Jasper & Corrigan (No 2)  FCCA 1467, 11.
[vi] Guzniczak & Rogala  FamCA 758, 107 and 121.
[vii] Leos & Leos  FamCa 1038
[viii] Ibid, 6 – 7.
[ix] Ibid, 33, 417 -419, 481.
Ruby is an Associate in Family Law and has been practicing Family Law since 2019.
Ruby has experience in a broad range of family law matters including international and national relocation matters, urgent Family Law Airport Watchlist matters, complex divorce application, high value and intricate property pools and sensitive parenting matters.
Ruby is also currently studying to complete her Masters of Applied Family Law and has gained the top marks during her studies.