Is recording your spouse without permission legal? Here’s the facts

Is your husband, wife or partner recording conversations and arguments without your permission? 

By Charlotte Monaghan, Practice Leader at Australian Family Lawyers, Sunshine Coast.

With a high proportion of society having a mobile phone on them at all times, we are frequently asked:

  1. Whether recording conversations as evidence on their mobile phones to use in their court case is legal?; and 
  2. Whether it would assist their family law case?

We’ll explore the legal facts in this article.

Is recording your spouse without permission legal?

Man holding mobile phone and sitting on yellow sofa

The short answer: No.

State law makes it an offence to record a person without their consent unless you’re protecting yourself or your property. If convicted of recording a person without permission, you can face up to five years imprisonment depending on the seriousness of your offending. 

If you have express or implied consent from your spouse to record them, then no issue of illegality arises. 

So your recording isn’t legal but could it assist your family law case? What would the Judge think?

The first step a Judge will consider is that despite whether the recording is illegal or not, should the recording be admitted into evidence. The starting point is if the evidence is illegally or improperly obtained, it should not be admitted unless the desirability of admitting it outweighs the undesirability. 

To determine that, the Judge will consider; 

  • the importance of the evidence, 
  • the probative value, 
  • the gravity of the impropriety or contravention in making the recording and whether the police will take action about the recording (if illegally obtained). 

A circumstance where a Judge may admit secret recordings is to obtain evidence of family violence due to the difficulty of family violence occurring behind closed doors and often the lack of corroborating evidence. 

In the case of Jasper & Corrigan (No.2) [2017], the parties agreed that the Wife had made a recording of the Husband’s conversation without his knowledge or consent. The question that the Court was faced with then became whether or not to allow the Wife to use the recording as evidence. 

The Presiding Judge considered the NSW legislation concerning the issue of illegal recordings. The Judge found that the Wife had no other options available to her in terms of evidence. Therefore, the use of the recordings as evidence was “reasonably necessary”. His Honour admitted the recording into evidence.

Once evidence is admitted, the Judge then attaches weight to the evidence. This means that even if you get your recording in, it may not assist your case as it may not receive much weight from the Judge. It could detract from your case if you were seen to be making a recording in a way that could be considered intimidating or if the recording was seen to be a ‘set-up’. 

If you have any questions regarding your own situation or case in regards to recording a spouse without permission, request a call back from our friendly team via the form below.

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