Hostile texts are family violence: We’ve all done it–sent an angry text or email in haste only to regret it later on. It’s when you’re going through family law proceedings, though, that such messages can really come back to haunt you. If you think that the odd text message calling your ex nasty names is just a trivial matter, then you should think again.
All forms of electronic messaging—whether emails, SMS, Facebook and other social media posts, even Skype transcripts—are admissable evidence in family court. And there have been numerous cases that we’ve seen go through the courts in which a parent has found themselves on the wrong side of the law and facing serious consequences as a result of sending communications that could be seen as offensive or derogatory. A recent case in the courts reconfirms that the family court will define offensive, derogatory messages as constituting family violence, with all the consequences that a finding of family violence entails for parents pursuing custody or time with their children.
The case of Levy & Mollison (court-ordered pseudonyms) is a parenting matter that has been proceeding through the courts for some time and last year orders were made regarding the former couple’s four year old daughter. After the orders were made last year, the father filed an Application in a Case seeking to vary the orders. He sought to dispense with the imposed supervision regime and to have overnight time with the child. He also wanted to vary the drug testing regime that was ordered due to his history of substance abuse.
However, due to the allegations of family violence in the matter, his application was dismissed as the issues could only be tested at a final, substantive hearing. The full hearing would enable cross-examination and close examination of all evidence, thereby assisting the court to resolve the competing allegations of family violence.
Alleged physical violence
Leaving aside the texts issue for a moment, the mother has also accused the father of physical violence. In the earlier hearing the mother had alleged that the father had been physically violent towards her on numerous occasions before they separated, all of which he denies. Acts of violence alleged by the mother include the father throwing a vacuum cleaner at her while she was holding their child, him roughly pulling the child out of her arms, being locked on the balcony, him being hostile and threatening towards her, and being threatened during an argument. At one stage the mother took the daughter and they lived in a refuge for a considerable length of time. At that time too, the police took out an interim Apprehended Domestic Violence order against him for her protection. The mother says the dad has continued to be hostile and threatening to her at changeovers.
Given the serious but disputed allegations, the court noted these issues could not be resolved without a substantive hearing where the evidence can be fully explored. The judgment notes that, “if the mother’s allegations are ultimately accepted, the father has embarked on a course of conduct intended to intimidate and punish her”.
Hostile texts are family violence
The non-exhaustive definition of family violence in our Family Law Act includes as an example “repeated derogatory taunts”, which certainly apply to the father’s texts when they are read in the judgment.
The Family Report in the matter also details the allegations of physical violence and the many “offensive and disrespectful communications” in which the father calls the mother every name under the sun and makes repeated threats.
Although the father later apologised to the mother for his “disgraceful txt messages”, the mother is not convinced of his sincerity. And the Family Consultant claims the apology (in which the father characterises his texts as “inappropriate”) is alarming and shows he doesn’t understand the seriousness of the communications and their underlying attitudes:
“The messages indicate that [the father] has little if any respect for the mother of his child and a lack of insight into the impact of his behaviour on [the child].”
Even Senior Counsel for the father “conceded…that the text messages upon which the mother relied constituted family violence”.
Exposing a child to family violence is also an act of family violence
Perhaps worse though is that many of the allegations are that the instances of family violence occurred in the presence of their daughter. Exposing a child to family violence is extremely damaging and this is also defined as constituting family violence in the Act. One example of exposure is “overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family” and this occurred in this case, with the child regularly experiencing the father’s hostility to the mother. The father will now continue to have supervised visits and undergo drug testing to help protect the daughter from his attitude and behaviour towards her mother that is apparent from the texts already tendered in evidence. The allegations of physical violence will then be tested at the final hearing.
In another case we wrote about, a mother was found to have breached orders by sending her ex a single abusive text message in which she told him she “prayed every night that he would die a horrible death”. This breached the order requiring her to communicate with her ex in a courteous and respectful manner.
Please bear in mind the potential consequences of sending even a single abusive text message to your ex. If parenting orders are already in place, they typically include “non-denigration” clauses, so derogatory communications will constitute a breach of the orders. If parenting orders are still being worked out, it will damage your case if you are found to have committed acts of family violence by sending such communications.
As the Family Consultant in the above case noted, “[the father] seems to have fallen into the trap of dwelling on his negative emotions in relation to
[the mother], when it is imperative that he focus on nurturing a positive relationship with [the child] now.” This is something all parents going through family court proceedings really need to keep at the forefront of their minds.
Key takeaway?
If you are going through a high-conflict separation or divorce and find yourself in danger of losing your cool and sending hostile text or email messages to your ex, consider taking pre-emptive action to protect yourself by downloading a simple app that will filter all your outgoing communications for offensive or disrespectful content—so you’ll never find your text messages being used against you in court. We recommend Toppako (and they currently offer a six month free trial).
You can read this case in full here and here.
Do you need assistance with a family law matter involving family violence? We have experience in handling cases like this, so please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law a call on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice for your circumstances, please contact Alliance Family Law.
You may also be interested to read our blog on when it is legal to record an ex partner in a family law case.
