Secretly Recorded Conversations After Separation
Most of us carry a recording device in our pocket. When a relationship ends, it can be tempting to press record during a heated phone call, a tense changeover, or a conversation where a former partner says something that matters. The harder question comes later: was it legal to record, and will the Court actually consider it?
In August 2026, the High Court of Australia gave its clearest guidance yet on when a private conversation can be lawfully recorded without the other person knowing. The decision arose in a criminal case, but it has real implications for separated couples, parenting disputes and family violence matters in New South Wales.
The case: Potter (A Pseudonym) v The King [2026] HCA 25
The case came from South Australia. A woman used her phone to record a conversation with her husband without telling him. During that conversation, he admitted to sexually assaulting her while she was asleep. She later explained that she made the recording for herself, as a reminder not to go back to the relationship and put herself at risk again.
The recording was played at his trial and he was convicted. On appeal, he argued it should never have been admitted because it had been made unlawfully.
In South Australia, as in New South Wales, recording a private conversation without everyone's consent is generally a criminal offence. There is an exception where the person recording is part of the conversation and the recording is reasonably necessary to protect their lawful interests. A majority of the South Australian Court of Appeal found that exception did not apply, although it dismissed the appeal on another basis.
The High Court disagreed. On 5 August 2026, all five Justices held that the recording was lawfully made. The woman had a lawful interest in her bodily autonomy and physical integrity, and recording the admission was reasonably necessary to protect that interest. Importantly, the Court did not require the recording to be the only step available to her. It was enough that recording was a reasonable and appropriate way to protect herself in the circumstances.
How this applies in NSW
In New South Wales, secret recording is governed by section 7 of the Surveillance Devices Act 2007 (NSW). The general rule is that you cannot record a private conversation without the consent of the people taking part. Breaching that rule is a criminal offence that can carry significant fines and, in serious cases, imprisonment.
Section 7(3)(b)(i) contains an exception worded very similarly to the South Australian provision considered in Potter. NSW courts are therefore likely to treat the High Court's reasoning as highly persuasive.
That said, Potter has not changed the legislation, and it does not make every secret recording made during a relationship or separation lawful. The facts involved the most serious kind of harm. Whether the same reasoning extends to emotional or psychological abuse, financial abuse, coercive control or ordinary conflict between separated parents has not yet been decided at that level.
What this means in family law proceedings
Recordings come up in family law matters in many forms: abusive voicemails, threats made over the phone, arguments at changeover, or admissions about money or property. In the Federal Circuit and Family Court of Australia, two separate questions arise.
Was the recording made lawfully? If a person recorded a conversation to protect their own safety, or their children's safety, from serious harm, Potter strengthens the argument that the exception applies. A recording made simply to gain an advantage in a parenting or property dispute, or to catch a former partner out, is far less likely to be protected.
Will the Court admit it, and how much weight will it carry? The Court applies the Evidence Act 1995 (Cth). Under section 138, evidence obtained improperly or unlawfully can still be admitted if the value of admitting it outweighs the undesirability of admitting evidence obtained that way. In parenting matters, where the best interests of children are the paramount consideration, that balancing exercise can be significant.
The reverse is also true. A lawfully made recording can still be excluded, or given little weight, if it is incomplete, taken out of context, misleading or unfairly prejudicial. Some rules of evidence are relaxed in child-related proceedings, but the Court keeps broad discretion over what it relies on.
Before you press record
Your safety comes first. A recording is not a substitute for protection. If you are in immediate danger, call 000. An Apprehended Domestic Violence Order (ADVO) may be available to protect you and your children.
Think carefully before recording children. The Court generally takes a dim view of a parent who records children, questions them about the other parent or draws them into adult conflict. It can reflect poorly on that parent's judgement.
Do not provoke. A recording that shows one person goading the other into an outburst or admission is likely to be closely scrutinised, and may do more harm than good.
Keep the original. Do not edit, trim or compress the file. Note when and where it was made, and on which device.
Do not share it. Sending a recording to friends or family, or posting it online, may be a separate offence. Publishing material that identifies parties to family law proceedings is also restricted under the Family Law Act 1975 (Cth).
Get advice early. Speak with a family lawyer before relying on a recording, and ideally before making one.
If you have been recorded
If a former partner is relying on a recording of you, it is not automatically the end of the matter. There may be grounds to argue that it was made unlawfully, that it should be excluded, or that it does not show the full picture. Context, completeness, editing and authenticity can all affect whether the Court relies on it and how much weight it receives.
How Evans & Wislang can help
Potter is an important development for people experiencing family violence, and a reminder that the law on recordings turns heavily on the facts. Whether you are thinking about recording a conversation, already hold a recording, or have been told one exists, our family law team can help you understand where you stand and what to do next.
Contact Evans & Wislang to arrange a confidential discussion with our family law or criminal law team.
This article is general information only and is not legal advice. Please seek advice specific to your circumstances.