Text message as evidence in family court proceedings

Text message as evidence in family court and when they may be excluded

A text message as evidence in family court proceedings is a common occurrence, whether in parenting proceedings or property settlement proceedings.

They are generally admissible as evidence. However, they may not be used in evidence whereto do so would be in breach of the requirements of the Evidence Act 19995 (Cth).  Section 131(1) of that Act provides that evidence is not to be adduced of:

A text messages as evidence can be excluded then if they are evidence of such a communication or such a document.

Once exception to this privilege applies where evidence that has been adduced in a proceeding is likely to mislead the court unless evidence of the communication or document is adduced to contradict or qualify that evidence.

In Phe & Leng [2019], the Full Court of the Family Court of Australia dismissed a Wife’s appeal against a property
order where the trial judge had found that the husband’s father was owed $145,000.   The Wife denied that such a debt existed and asserted that the monies were the husband’s.

A text message as evidence in this proceeding was crucial to the finding of the trial judge. The trial judge found that the amount of $145,000 was the parties’ debt. The Wife in a text message to the Husband’s sister had said that she would “return” the money to the Husband’s parents if her child “M can come back to Sydney”.

On appeal, the Wife argued that that the text message as evidence was inadmissible as she asserted that it was a settlement negotiation under section 131 of the Evidence Act 1995 (Cth).

However, the Full Court found that the exception referred to above applied. It was likely that the trial judge would have been misled into accepting the Wife’s evidence had the text message as evidence been excluded.

Contact our experienced Family Lawyers Brisbane or our family lawyers Brisbane Northside if you would like some practical legal advice whether regards the use of a text message as evidence in family law proceedings
or about any area of family law.  We can assist you in all areas of family law, including family law property settlement, maintenance claims and parenting arrangements. Our goal is to assist you to resolve your family law issues without the need to go to court.  If however court action becomes necessary, we have the experience to represent you effectively in court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.