Can You Secretly Record Your Ex in Western Australia?

The following article is not legal advice.

One of the most common questions we are asked during family law matters is whether you can secretly record conversations with your former partner.

Many people assume that if they are part of the conversation, they are entitled to record it. Others believe that secretly recording an ex will guarantee success in court. Neither assumption is correct.

The answer is more complicated and, in Western Australia, there are significant legal risks.

Is it legal to secretly record a conversation?

In Western Australia, the starting point is that it is generally a criminal offence to record a private conversation using a listening device without the consent of all parties involved. The Surveillance Devices Act 1998 (WA) contains strict prohibitions on the use of listening devices and carries penalties including fines and imprisonment.

Many people are aware that there are exceptions, but they are far narrower than commonly believed. The exception most commonly relied upon in family law matters is found in section 5(3)(d) of the Surveillance Devices Act 1998 (WA). It permits a principal party to record a private conversation without the consent of the other parties where the recording is reasonably necessary to protect the lawful interests of that principal party.

The words "lawful interests" are important. They do not create a general licence to secretly record your former partner whenever litigation is contemplated. The Supreme Court of Western Australia has interpreted this exception narrowly. In Farris v Boase [2013] WASC 227, the Court confirmed that the exception is not available simply because a person wishes to obtain evidence for future litigation. Instead, there generally needs to be a genuine need to protect an existing lawful interest, such as protecting yourself against serious false allegations or safeguarding your physical safety.

Simply wanting to catch your ex in a lie, improve your negotiating position, or gather evidence for parenting or property proceedings will not usually satisfy the exception.

What if I am part of the conversation?

Many people confuse Western Australian law with the laws in other Australian States.

Some jurisdictions permit a person who is a party to a conversation to record it without informing the other participants. Western Australia generally does not.

Being one of the people participating in the conversation does not automatically make the recording lawful. Whether an exception applies depends on the particular facts and should not be assumed.

Can I record conversations between my ex and someone else?

Generally, no.

The legal risk increases significantly if you attempt to record conversations between other people.

Examples include leaving your mobile phone recording after you leave a room, placing a recording device in a vehicle or house, or attempting to record conversations between your former partner and the children or another adult. These situations are likely to fall well outside the exceptions contained in the Surveillance Devices Act 1998 (WA).

Can the Family Court still use an illegal recording?

Possibly.

One of the biggest misconceptions is that evidence obtained unlawfully can never be admitted into court. That is not the law.

Under section 138 of the Evidence Act 1995 (Cth), evidence obtained improperly or illegally is generally to be excluded unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that manner. The Court undertakes a balancing exercise, considering matters such as the importance of the evidence, the seriousness of the impropriety and the nature of the proceedings.

Parenting proceedings are different again. Under section 69ZT of the Family Law Act 1975 (Cth), the Court may dispense with the strict rules of evidence in child-related proceedings where appropriate. This reflects the fundamental principle that the best interests of the child remain the Court's paramount consideration.

Accordingly, an unlawfully obtained recording may still be admitted if it provides compelling evidence relevant to a child's safety or welfare.

For example, in Huffman & Gorman [2014] FamCA 1077, covert recordings were admitted because they contained significant evidence of family violence. The Court considered that the importance of the evidence justified its admission despite the manner in which it had been obtained.

However, relying on covert recordings is a substantial gamble. In Guzniczak & Rogala [2017] FamCA 86, the Court criticised a father who had spent months covertly recording the mother while attempting to provoke confrontations. Rather than assisting his case, the recordings demonstrated an unhealthy approach to co-parenting and damaged his credibility before the Court.

The fact that a recording is ultimately admitted into evidence does not prevent the person who made it from potentially facing criminal or civil consequences for making the recording in the first place.

When can recordings damage your case?

In our experience, clients often overestimate the value of covert recordings.

Judges regularly encounter parties who have spent months attempting to build a case against the other parent by recording conversations, saving every text message and analysing every interaction. Rather than demonstrating concern for the children, this behaviour can suggest an inability to move beyond conflict and a fixation on proving the other parent is at fault.

Covert recordings frequently capture arguments in which both parties behave poorly. A client who intended to expose the other parent instead finds themselves explaining their own conduct to the Court.

There is also the problem of context. A recording may capture only the final few minutes of a lengthy discussion. Without understanding what occurred beforehand, the recording may present a misleading or incomplete picture.

Perhaps most importantly, covert recording can permanently damage an already fragile co-parenting relationship. While there are cases where recordings are genuinely necessary to protect a person's lawful interests or establish serious allegations, indiscriminate recording is rarely viewed favourably by the Court.

Are there better ways to preserve evidence?

Usually.

If an important incident occurs, there are often safer and more persuasive ways to preserve evidence, including:

• retaining original text messages and emails;

• taking screenshots that preserve dates and times;

• making contemporaneous written notes of significant events;

• obtaining statements from independent witnesses where appropriate; and

• seeking legal advice before attempting to gather further evidence.

These forms of evidence generally carry far less legal risk and are often easier for the Court to evaluate.

The bottom line

If you are considering secretly recording your former partner, obtain legal advice before pressing record.

The recording may be unlawful. It may expose you to criminal liability. It may never be admitted into evidence. Even if it is admitted, it may ultimately damage your credibility more than it assists your case.

That does not mean covert recordings are never worthwhile. In some cases, the greatest value of a secret recording is not that it is ultimately played in court, but that it exists as an insurance policy.

Where one party has demonstrated a willingness to make false allegations or misrepresent what occurred during interactions, a recording can become an important safeguard. For example, if your former partner alleges that you were verbally abusive during a child handover, but a recording objectively demonstrates that you remained calm while you were in fact subjected to abuse, the recording may be highly persuasive. It not only protects you against a false allegation but may also significantly undermine the credibility of the other party's evidence more generally.

Ironically, the very fact that the recording was necessary to protect you from false allegations may itself support the argument that it was reasonably necessary to protect your lawful interests. However, that is a legal question that depends on the particular facts of your case.

The decision to adduce a covert recording into evidence is always a balancing exercise. On one hand, the recording may provide compelling and objective evidence of what actually occurred. On the other hand, courts generally do not look favourably upon parties secretly recording one another, particularly where the recording appears to be part of a campaign to monitor, provoke or gain an advantage over the other parent. The more underhanded the conduct appears, the more persuasive the recording generally needs to be before the benefit of relying upon it outweighs the damage it may cause to your own credibility.

There are also important strategic considerations. Once you disclose that you have been secretly recording conversations, any goodwill you may have built up with the other party may quickly disappear. They are likely to become guarded in future interactions, meaning you may lose the opportunity to obtain genuinely important evidence if serious incidents occur later. In many cases, the mere existence of a recording provides valuable protection without ever needing to be relied upon in court.

For these reasons, the decision is rarely as simple as asking whether a recording helps your case. The real question is whether, viewed as a whole, the benefit of relying upon the recording outweighs the legal, forensic and strategic disadvantages. That assessment should almost always be made with the benefit of legal advice before any recording is deployed in court.

Sources

• Surveillance Devices Act 1998 (WA), particularly sections 5 and 26.

• Evidence Act 1995 (Cth), section 138.

• Family Law Act 1975 (Cth), section 69ZT.

• Farris v Boase [2013] WASC 227.

• Huffman & Gorman [2014] FamCA 1077.

• Guzniczak & Rogala [2017] FamCA 86.