We’ve all heard the caution ‘anything you say or do may be used against you in the Court of Law’, but what most people don’t realise is that this warning also extends to text messages and emails!

In the era of smartphones, text messages, emails, WhatsApp and Facebook, communication apps have become a helpful form of communication for separated couples. Text messaging platforms provide an arm’s length option for communication that is less personal and immediate than an old-fashioned phone conversation. This is most common in circumstances where the parties are separated but still have to communicate in relation to childcare or property division arrangements.

However, what people don’t realise is that if your family law case ends up in Court your text messages may end up on display for everyone to see! The Judge may end up reading screenshots of all the unsavoury ‘heat of the moment’ text messages exchanged between you and your ex.

It works like this: If you’re engaging in arguments with your ex-partner via text message or any message service about childcare arrangements or financial matters then it is highly likely that those screenshots will be later attached to your ex-partner’s Affidavit as evidence of your poor intentions, bad temper or designed to reduce your time with your children. Text messages may also be used as evidence to prove that the accounts of conversations, quotes and claims made in an Affidavit are in fact truthful.

For example, text messages can prove helpful when one party is alleging that they have been subject to domestic violence perpetrated by their ex-partner. Screen shots of previous conversations could evidence emotional abuse, threats, name calling, controlling or manipulative behaviour perpetrated against the party alleging the abuse. This is a very common scenario.

Text messages and emails provide clear evidence of past conversations. They can help avoid the old ‘he said, she said’ debate because it is all there in writing. Although it is worth noting for those tech savvy people that sometimes records of emails and text messages can be fabricated or manipulated. But generally, parties are deterred from providing fake emails and texts as this would be considered to be perjury (purposefully deceitful) by the Court and therefore could be subject to legal punishment.

To help you harness the advantages of screenshots and to help avoid your text messages being used against you, we’ve put together a brief list of Do’s and Do nots:

  • Do not ‘rage text’! Just stop. Take a deep breath, and then when drafting a response consider how you want to portray yourself – not just to your ex, but to the Judge who is likely to read your message.
  • If you are not sure if you should send a particular message, have a trustworthy friend check your message before you send it. Alternatively, sometimes if you are not sure about a message that may be a sign you already know it’s not a good idea to send it!
  • Do not name call your ex-partner or use profanity. Just like the old adage ‘just because you scream doesn’t make you right’. Name calling and profanity could make it look like you can’t control your temper.
  • Keep it short. It is much harder to find fault or take offence to a text message that’s short, sharp and straight to the point (as long as the point itself is not offensive!).
  • Don’t send numerous text messages in a short space of time. In more severe cases this can be perceived as harassment.
  • Talk about the issues, not the other person. Essentially, don’t make it personal. If you are talking about child arrangements, then focus on that. E.g. location, time and date; not how your ex is a bad parent because they won’t agree to certain arrangements.
  • Don’t fall into the trap of debating issues that you’ll never agree on.
  • Take screen shots! If you are alleging that your partner said something or is treating you a certain way then make sure you keep the evidence. This is especially important if your partner is being abusive towards you.
  • If you have an Intervention Order against you, and you are able to communicate about the children, do not under any circumstances text or message about your finances or your property settlement. This may cause you to be charged by the Police for a breach of the Intervention Order.
  • Do not make comments on Facebook or other social media sites about your ex-partner or your case. These are frequently used in Court cases as evidence.

The takeaway here is do not put anything in text or email that can be used to paint you in a bad light. Additionally, if you are on the receiving end of abusive text messages or harassment you should keep evidence and seek the advice of a Lawyer. You may also need to consider contacting police.

We know that this is all much easier said than done! And in some circumstances, it is not possible (or safe) to communicate directly with your ex in relation to separation arrangements. That’s why we are here to help. If you need advice, please don’t hesitate to get in touch with our Family Law team on (03) 9629 9629.