Key takeaway: Secretly recording a private conversation is a criminal offence in most Australian states under surveillance and listening device laws, with limited exceptions. Even where a recording exists, family courts are often reluctant to admit it and may view the recording party negatively. Before recording anyone, get legal advice — the risks usually outweigh any benefit.
The short answer
Generally, no — you should not secretly record your ex. In most Australian states and territories, recording a private conversation without the consent of the parties is a criminal offence under surveillance and listening device laws. There are narrow exceptions, but they're limited, and getting it wrong can expose you to criminal liability and damage your position in family law proceedings. This is an area to get advice on before acting, not after.
Tempted to record your ex? Talk to us first — there are safer, more effective ways to protect yourself.
Book a free consultation →Surveillance and listening device laws
Each state and territory has its own surveillance devices or listening devices legislation, but the common thread is that secretly recording a private conversation you're not party to — and in many places, even one you are party to — is prohibited without consent. The rules differ on whether a participant can record their own conversation, which is exactly why blanket assumptions are dangerous. Penalties can include fines and even imprisonment under state legislation such as the Surveillance Devices Act.
Before you assume a recording will help, get advice on your state's rules. We'll give you a clear answer. Book a consultation.
Book a free consultation →How the rules vary by state
Because each state and territory has its own legislation, the exact position depends on where you are — which is precisely why you should never rely on what a friend in another state, or a video online, tells you. Some jurisdictions prohibit recording a private conversation outright; others allow a participant to record a conversation they're part of in narrow circumstances, such as to protect their lawful interests. The safest working assumption is that secretly recording is prohibited unless you have specific advice confirming otherwise for your state and your situation.
| Factor | Why it matters |
|---|---|
| Which state or territory you're in | Each has its own surveillance/listening device law |
| Whether you're a party to the conversation | Rules differ for participant vs third-party recording |
| Whether it's a private conversation | Private conversations attract the strongest protection |
| Your purpose in recording | Some limited exceptions turn on protecting lawful interests |
Given how much turns on these variables, blanket assumptions are genuinely risky. When in doubt, don't record — ask first.
Can recordings be used in family court?
Even setting aside the criminal question, illegally obtained recordings are frequently inadmissible in family law proceedings — and tendering one can backfire. Courts may not only exclude the recording but also take a dim view of a party who resorted to covert surveillance, seeing it as inconsistent with the cooperative, child-focused approach family law encourages. The recording you hoped would help can end up hurting you. See the family court process →
Recording your children
Recording children — or coaching them to record the other parent — is particularly fraught. Courts are highly protective of children and view involving them in the conflict, including using them to gather 'evidence', very negatively. It can seriously damage your case and, more importantly, your children. Don't do it.
Worried about your ex's conduct? There are lawful ways to protect yourself and your children. Let's talk them through.
Book a free consultation →Texts, emails and social media
People often ask whether the same problems apply to written communication. The picture here is more favourable. Text messages, emails, and other written exchanges that you are a party to are yours — you received them, and keeping them is not the same as covertly recording a conversation. These can be far more useful than a secret recording, because they're a clear, dated record in the other person's own words, obtained without breaching surveillance laws. The same broadly applies to messages sent to you through co-parenting apps. Social media posts that are publicly visible can also sometimes be relevant. What you should not do is hack into an account, guess a password, or access someone's device or messages without permission — that raises its own serious legal problems. Keep what's genuinely yours, obtained lawfully, and let that speak for itself. See how evidence works in family law →
The risks of recording
- Criminal liability — potential fines or imprisonment under surveillance laws
- Inadmissibility — the recording may be excluded as evidence
- Reputational harm — courts may view you as the unreasonable party
- Escalation — it deepens conflict and erodes any trust that remains
There are lawful, effective ways to document concerns. We'll show you the right approach. Book a consultation.
Book a free consultation →What to do instead
If you're worried about your ex's conduct, there are lawful, effective alternatives: keep a written, dated record of events; retain text messages and emails (which you're a party to); use reputable co-parenting apps that log communication; and raise genuine safety concerns with the appropriate authorities. And bring your concerns to mediation, where issues can be aired and addressed constructively. If there's a safety risk, see domestic violence and family law.