By Rachael Murray, Partner and Amy Holmes, Senior Associate
Warning: This article contains descriptions of sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading, and consider whether this material is appropriate for you at this time.
One of the most common questions family lawyers are asked is: “Can I secretly record my former partner and use it in Court?” For years, the answer has been frustratingly complex. The recent High Court decision in Potter (A Pseudonym) v The King [2026] HCA 25 does not create a general right to make covert recordings. However, it provides important guidance about when a covert recording may be lawfully made and subsequently relied upon in legal proceedings. For family lawyers and clients navigating allegations of domestic, family and sexual violence, the decision may have significant practical implications.
While Potter arose in a criminal law context, family lawyers should not underestimate its significance. Allegations of domestic, family and sexual violence frequently arise in parenting proceedings, often in circumstances where there are no independent witnesses. As a result, questions surrounding the admissibility of covert recordings arise with increasing frequency in family law litigation. Unlike workplace disputes or commercial litigation, there are often no independent witnesses, making evidentiary challenges significant. In that context, clients frequently ask whether they can record conversations to protect themselves or preserve evidence of abusive behaviour. The answer has always depended on a range of factors, including:
One of the difficulties for practitioners is that recording laws vary between jurisdictions.
In Queensland, the Invasion of Privacy Act 1971 (Qld) generally permits a person who is a party to a private conversation to record that conversation. However, separate restrictions apply to the publication or communication of those recordings, subject to several exceptions, including where disclosure is reasonably necessary to protect lawful interests. In New South Wales, the Surveillance Devices Act 2007 (NSW) adopts a more restrictive approach. While there is a general prohibition on recording private conversations, statutory exceptions may apply, including where the recording is reasonably necessary to protect the recorder’s lawful interests. As a result, family lawyers must continue to carefully consider the legislation applying in the relevant jurisdiction before advising clients.
In Potter, the appellant was tried on four counts of rape involving his wife. The prosecution relied on a covert recording made by the complainant during which the appellant admitted sexually assaulting her while she was asleep. The complainant’s evidence was that she made the recording as a reminder to herself not to resume the relationship and place herself at further risk of sexual assault. The High Court unanimously dismissed the appeal and held that the recording was lawfully made because it was reasonably necessary for the protection of the complainant’s lawful interests. Most significantly, the Court recognised that those lawful interests included the complainant’s rights to bodily autonomy and bodily integrity, describing protection from rape as an interest deserving of the strongest legal protection.
The decision does not mean that every covert recording will automatically be admissible.
Nor does it mean that separated parents should begin recording every interaction with a former partner. However, the case provides stronger authority for the proposition that covert recordings may be justified where they are made to protect a person’s lawful interests, particularly in situations involving domestic, family or sexual violence. For clients, the practical lesson is straightforward: Do not assume a covert recording is either automatically lawful or unlawful. The circumstances matter. The purpose of the recording matters. The legislation of the relevant State or Territory matters. Before relying on a recording, legal advice should be obtained.
Key takeaways for clients:
As allegations of domestic, family and sexual violence continue to feature prominently in family law proceedings, Potter is likely to become a significant authority for practitioners navigating the increasingly complex intersection between privacy, evidence and personal safety. The decision provides useful guidance when advising clients who seek to document abuse occurring in private settings. Importantly, it shifts the discussion away from a simplistic focus on whether the recording was “secret”. The more important question may now be: What lawful interest was the client seeking to protect? Where a recording is made to protect a person’s safety, bodily integrity, or to document serious abuse, Potter provides a stronger foundation for arguments supporting its admissibility.
Family lawyers will be familiar with situations where parents covertly record children during parenting disputes. Those recordings raise a separate set of legal, evidentiary and ethical considerations. The reasoning in Potter should not be interpreted as endorsing the routine recording of children, nor does it guarantee the admissibility of such recordings in family law proceedings.
Key takeaways for lawyers:
According to the Australian Bureau of Statistics, one in four women have experienced intimate partner violence and 97,800 family and domestic violence offenders were recorded by police during 2024-25, representing an increase of approximately 8 per cent from the previous year. Family lawyers see the reality behind these statistics every day. Whilst Potter is not a family law decision, it recognises an important reality that family law practitioners have long understood: victims of domestic and family violence often have very limited means of documenting what is happening to them. By recognising that a person’s bodily autonomy and bodily integrity may constitute lawful interests capable of justifying a covert recording, the Court has provided important guidance in an area that has long been characterised by uncertainty.
Importantly, Potter should not be understood as creating a general right to secretly record conversations, nor does it remove the need to carefully consider the relevant State and Territory legislation governing surveillance and listening devices. Rather, it reinforces that courts will look carefully at why a recording was made, what interests the person was seeking to protect and the legislative framework within which the recording was obtained. For clients and practitioners alike, Potter is a reminder that covert recordings should never be viewed as a simple evidentiary shortcut, but nor should they be automatically dismissed where they may provide important evidence of serious abuse occurring behind closed doors.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
