If things are tense with your ex-partner, it's tempting to hit record. Maybe you want proof of what was said, or you're worried about your safety. Before you do, it helps to know where you stand legally, and how a recording might actually play out in your family law matter.

The general rule

In NSW, the Surveillance Devices Act 2007 makes it an offence to record a private conversation without the consent of everyone taking part, even if you're one of the people in it. This applies whether you're recording in person or over the phone.

When you might be allowed to record

There's an exception. If you're part of the conversation, and you reasonably believe the recording is necessary to protect your own lawful interests, you may be allowed to make it. This is the exception people often rely on in separation disputes, for example recording an argument about the children or about money.

This exception is narrow. Even where making the recording is allowed, sharing it, playing it to others, or posting it online can still be against the law, unless a specific exception applies, such as using it in court.

Will a court actually use it?

The Family Law Act doesn't deal with recordings directly. Whether a recording can be used in your case comes down to the Evidence Act 1995 (Commonwealth law that applies in family law courts). Under this Act, a judge has the discretion (the power to decide, case by case) to leave out evidence that was improperly or illegally obtained.

The judge weighs up things like how important the recording is to the case, how serious the breach was in getting it, and whether allowing it would encourage other people to do the same thing. So a recording made without consent isn't automatically thrown out, and it isn't automatically allowed in either. It depends on the circumstances.

Recording children

Courts take this especially seriously. Recording a child, or asking a child to record the other parent, can raise real concerns, even where the recording is allowed into evidence. Judges look closely at the emotional impact on the child, and at what the recording says about a parent's judgement and their ability to co-parent. If you're thinking about this, please get advice first.

What to do instead

If you're worried about a conversation turning difficult, or you feel unsafe, talk to us before you record anything. We can help you understand your options, including how to document concerns properly, and whether a recording would actually help your case or create a new problem.

Every family's situation is different, and the right approach depends on your circumstances.

A real warning from the news

A story reported in the media in September 2026 shows how badly this can go. Overseas, a husband used the camera in his robot vacuum to secretly record his wife with someone else. He used the footage in his divorce case, and a court ordered his wife to pay him damages over the affair. But he was then taken to a separate criminal court for secretly filming her and was sentenced to five months in jail for invading her privacy. The court found that being married didn't give him the right to record her without her knowledge.

That case happened overseas, under different laws to NSW. But the lesson still applies here: don't make this mistake. A secret recording can cause you as much trouble as it solves, even if it helps your case along the way. Talk to us before you press record.

This information is general in nature and does not constitute legal advice. For advice specific to your circumstances, contact us today.