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Emails in family court proceedings: are they admissible evidence?

By July 11, 2018October 26th, 2021No Comments

Sometimes we find clients who are uncertain as to whether they can supply emails in the family law courts as part of evidence in their family law proceedings.  In fact, all forms of electronic messaging—whether emails, SMS, Facebook and other social media posts, even Skype transcripts—are court-admissable evidence in family court. In fact, a recent article by Family Law Express claims that “emails and SMS text messages [are] now the single most relied upon form of evidence submitted in family law proceedings in Australia”.

Apart from emails, family law practitioners also increasingly see evidence supplied in the form of Facebook posts. The Family Law Express article describes several cases including one where a father had his Facebook page investigated by a marshal at the order of a judge, because the father had “revealed confidential information about the case, claimed the magistrate and expert witnesses had been duped by the mother and even alleged that the mother abused their children”. Elsewhere, a mother going through court proceedings was “caught boasting on her Facebook page how she thought about ripping her husband off for another $20,000. “Felt like being a smart arse,” she wrote, signing off “Bwahahaha lol.”

To avoid the dangers of venting, bragging or even illegally publishing identifiable details of family court matter, many family law practitioners these days advise their clients to simply take down their Facebook page for the duration of their family law proceedings.

Electronic communications can also be relevant in family law when there is a dispute over evidence.  In some cases, a couple may dispute whether a communication even occurred, for example, whether an email that was purported to have been sent actually was, or whether it was opened and read as well as received.

In order to protect themselves, some individuals going through family law proceedings are choosing to sign up for forensic email add-ons which have the ability to track your emails.  These programs can provide a receipt that an email was sent, opened, for how long it was opened, whether attachments were clicked, if it was forwarded, and even details such as the internet connection used, the location and details of the device used.  Another measure that could be taken is to BCC (blind copy) a trusted friend on all your emails.

The following general precautions for using social media are also recommended.

Realise everything you post is public

Social media posts spread exponentially and even if you have shared a post with friends only, there is nothing to stop them copying and further sharing the message. So by all means update your social media privacy settings, but understand that this does not automatically protect your postings from falling into the wrong hands. What’s more, courts have the power to order you to release private postings and even deleted postings.

Don’t vent on social media

That’s what your friends are for–in real life.  Unless you are perfectly happy for your venting to be seen by a judge in the end as well…step away from the keyboard.

Don’t boast

Bragging about expensive purchases or your luxe lifestyle on Instagram can make it difficult to argue a need for financial support, or the inability to pay it.

Hold back on the party pics

Avoid posting them, no matter how innocent they may actually be. Photographic evidence of an alleged “party lifestyle” can project the wrong image to a court.

Source: Family Law Express

You can read our blogs on family law and social media here and here.

Do you need advice from a family lawyer? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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