If you’re wondering whether text messages can be used as evidence in Family Court, the short answer is yes.
In Australian family law proceedings, text messages are frequently relied upon as evidence in parenting disputes, property settlements and matters involving allegations of family violence or coercive control. They can provide valuable insight into what was said, when it was said and, in many cases, the behaviour of each party over time.
However, not every text message will assist your case. The Family Court is primarily concerned with evidence that is relevant, reliable and helps determine the issues in dispute.
Understanding how text messages in Family Court are assessed can help you avoid common mistakes and ensure important evidence is preserved.
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Can Text Messages Be Used as Evidence in Family Court?
Yes.
Text messages can be used as evidence in Family Court where they are relevant to the issues before the Court.
The Court regularly considers electronic communications because much of today’s communication between separated couples occurs via mobile phones, email and messaging applications rather than face-to-face conversations.
Depending on the circumstances, text messages may help establish:
- agreements reached between parties;
- parenting arrangements;
- admissions made by a party;
- threats or abusive behaviour;
- evidence of coercive control;
- attempts to resolve disputes;
- financial discussions; and
- a pattern of conduct over time.
Rather than focusing on a single message in isolation, the Court will often consider the broader context and the overall pattern of communication.
When Are Text Messages Relevant?
The relevance of text messages in Family Court depends on the issues being determined.
Parenting Matters
In parenting proceedings, text messages may demonstrate:
- discussions about parenting arrangements;
- one parent refusing time with the children;
- attempts to facilitate a relationship between the child and the other parent;
- communication regarding medical appointments, schooling or extracurricular activities;
- abusive or threatening behaviour;
- family violence; or
- evidence of coercive or controlling conduct.
Sometimes a series of text messages can paint a clearer picture of the parenting relationship than witness evidence alone.
Property Settlement Matters
In property proceedings, text messages may assist in proving:
- agreements reached during negotiations;
- admissions regarding assets or liabilities;
- discussions about property ownership;
- hidden income or assets;
- promises regarding financial support; or
- attempts to conceal financial information.
While financial documents remain important, text messages can often provide valuable context.
Can Screenshots Be Used as Evidence?
Yes.
Screenshots are commonly used in Family Court proceedings.
However, screenshots are generally more persuasive where they:
- show the complete conversation;
- include the date and time;
- clearly identify the sender;
- have not been altered or edited; and
- accurately reflect the original communication.
Cropping or selectively presenting messages create an inaccurate impression and may affect the weight the Court places on the evidence.
Where possible, it is preferable to retain the original messages on your device, and that the original messages clearly identify the date and time that the messages were sent.
Hot Tip: Use Our Family Wizard or another communication app that allows all conversations to be saved, so that you can easily print the conversation with the dates and times at a later date, should that evidence be relevant in your family law matter.
Can Emails Be Used as Evidence?
Absolutely.
Emails are often relied upon in Family Court, particularly where they relate to:
- parenting arrangements;
- financial negotiations;
- disclosure of assets;
- offers made during negotiations (where appropriate); and
- communication between the parties over an extended period.
Emails can be particularly useful because they usually contain clear dates, times and sender information.
Hot Tip: Save all your emails where you communicate with your ex spouse about the children in a folder, including the complete email trail of each conversation, so you can easily print them off and provide them to your lawyer, should they become relevant and important at a later date.
Can Social Media Be Used as Evidence?
Yes.
Facebook messages, Instagram messages, WhatsApp conversations and other social media communications may all become relevant in Family Court proceedings.
In addition, social media posts themselves may be used where they:
- contradict evidence given by a party;
- demonstrate a person’s financial circumstances;
- show parenting arrangements inconsistent with allegations made to the Court;
- contain admissions; or
- evidence harassment or intimidation.
Many people underestimate how frequently social media becomes relevant during family law disputes.
Hot Tip: save your facebook messages into a folder on your computer, with the dates visible in the messages, or if it is a screenshot, make sure the date of the post is visible in the screenshot. Title them appropriately so you can easily locate message trails/screenshots at a later date, should they become relevant/important.
Can Deleted Text Messages Still Be Used?
Sometimes.
Deleting text messages does not necessarily mean they can never be relied upon.
Depending on the circumstances:
- the recipient may still have the messages;
- messages may exist in device backups;
- cloud storage may preserve communications; or
- other records may still exist.
Importantly, deliberately destroying evidence once litigation is anticipated may have serious consequences.
If you believe certain text messages are important to your case, it is generally advisable to preserve them rather than delete them.
Hot Tip: instead of hiding messages that you are worried about, and hope that they don’t come out, discuss them with your lawyer so you can develop a strategic plan with respect to them. Being offensive, rather than defensive, is much more helpful for your lawyer. Not being honest with your family lawyer negatively impacts the capacity of them to make meaningful recommendations with respect to the strategy of your case.
Can Secret Recordings Be Used?
This is one of the most common questions family lawyers receive.
The answer is not always straightforward.
Whether a secretly recorded conversation can be relied upon depends on numerous factors, including:
- how the recording was obtained;
- whether it was lawfully made;
- its relevance to the issues before the Court; and
- whether the Court considers it appropriate to admit the evidence.
There may also be legal consequences outside the family law proceedings.
Before making or relying upon a secret recording, you should obtain legal advice.
Check out our article on Recordings as Evidence in Family Court for more information on this topic.
How Should You Preserve Text Messages?
If you believe text messages may become relevant in Family Court proceedings, you should:
- avoid deleting messages;
- retain the entire conversation rather than isolated messages;
- keep dates and times visible;
- avoid editing screenshots;
- back up your device where appropriate; and
- seek legal advice before providing material to the Court.
Organised evidence is often significantly more helpful than hundreds of pages of disorganised messages.
Common Mistakes People Make
Some of the most common mistakes we see involving text messages in Family Court include:
- deleting important messages;
- responding emotionally;
- making threats in writing;
- editing screenshots;
- annexing portions of conversations without the complete picture/context;
- posting about the proceedings on social media;
- assuming deleted messages cannot be recovered; and
- believing every text message will automatically assist their case.
Remember that every written communication has the potential to become evidence.
Before sending a message, consider how it might appear if read by a Judge months later.
When Should You Speak to a Family Lawyer?
Not every text message will strengthen your case.
Our experienced family lawyers can help determine:
- whether your text messages are relevant;
- how they should be presented;
- what additional evidence may be required; and
- whether relying on particular communications is likely to assist your case.
Obtaining advice early can often prevent costly mistakes and ensure important evidence is properly preserved.
How Barton Family Lawyers Can Help
At Barton Family Lawyers, we regularly advise clients on how text messages, emails, screenshots and electronic communications may be used in Family Court proceedings.
Whether you are involved in a parenting dispute, property settlement or matter involving allegations of family violence or coercive control, we can help you understand what evidence is likely to assist your case and how it should be presented.
If you require advice about text messages in Family Court or any other family law issue, contact our experienced family law team to discuss your individual circumstances.
Want more information?
Check out these articles:
- Am I overreacting? Understanding coercive control;
- Separation advice: what should I do first after separation?
Frequently Asked Questions
Can text messages be used as evidence in Family Court?
Yes. Text messages are commonly used as evidence in Family Court where they are relevant to the issues being determined, such as parenting arrangements, financial matters or allegations of family violence.
Are screenshots accepted in Family Court?
Yes. Screenshots may be accepted as evidence, particularly where they accurately show the original communication, including dates, times and the identity of the sender.
Can Facebook or WhatsApp messages be used as evidence?
Yes. Messages exchanged through Facebook Messenger, WhatsApp, Instagram and similar platforms may all be used as evidence if they are relevant to the case.
Should I delete text messages before going to Court?
Generally, no. If litigation is anticipated, deleting relevant evidence may have serious consequences. It is usually advisable to preserve important communications and seek legal advice.
Can the Family Court consider abusive text messages?
Yes. Abusive, threatening or controlling text messages may be relevant in parenting proceedings, family violence matters and other Family Court cases where a party’s behaviour is in issue.
