May I record conversations with my ex about child custody issues?

Not all child custody disputes are settled amicably. Often a parent or a guardian "agrees" to one thing but end up doing another. Conversations and negotiations about child custody can be emotionally stressful and often have a significant impact on the final child custody arrangements.

If you don't trust that the other person will do as he or she said they would, you might feel the need to keep a record of whatever was said for future reference. If you are considering that, you need to make sure that you understand the legal implications of recording your conversations.

Having a family lawyer, or a third party, present during these interactions is a good way to have the conversations “on record”, and you should also keep copies of all digital communications. Recording conversations between you and the other party may be a great way of having everything said on record, but you are treading on the uncertain legal ground. It may be illegal to do so.

What does the law in NSW say?

This area of the law is complex. Using recordings as evidence will depend greatly on how it was obtained. Even the police have to follow very specific rules if they want to record evidence to use in court.

The general rule is that individuals may only record and publish private conversations with the consent of the parties to the conversation. Section 11 of the Surveillance Devices Act 2007 specifically prohibits a person from publishing a private conversation, or a recording of such, that was obtained by the direct or indirect use of a listening device, optical surveillance device or any sort of tracking device.

It is thus clear that you may record and publish a private conversation, but only if the other party is aware of the recording, and consents to it being recorded. There are limited exceptions, but it is always better to seek legal advice before you make any attempt to record your telephone or other conversations. Besides, how likely is it that the other party will consent to your conversation being recorded?

There are instances where the judge did consider the value of “illegally” recorded evidence, but even in such cases, the recorder could be found guilty of illegally recording the conversation and communicating it to a third party.

What are your options?

The best is to have all interactions about the custody dispute in the presence of an experienced family lawyer. You will have the conversation and all undertakings “on record”, without risking that the evidence will be inadmissible in court.

A lawyer who specializes in child custody cases can help you find solutions and reach agreements about the issues, without having to go through the process of documenting everything that was said. You can reach agreements through mediation or achieve a good outcome for you and the children through appropriate legal action. Getting legal advice might be the easiest and best option if you are concerned that the other party will not do as agreed.