In the last month the media have reported that divorce lawyers could “soon” gain access to the web, phone and email use of every person in Australia. Privacy advocates and others have criticised the possible move to change data retention laws as intrusive.
Under the Telecommunications (Interception and Access) Act 1979 Australian phone and internet service providers are required to retain certain data for up to two years. These obligations commenced in October 2015 and will be fully implemented this year. In short this means that all your metadata including voice, text and email communications, time, date and location are retained by your service providers.
When the changes to the Act were made to compel the retention of data, the parliamentary committee recommended that the bill have a prohibition to prevent civil litigants from being able to access the data. However, it also said there may need to be some exceptions to this and specifically gave an example of family law cases involving child abduction.
The Law Council of Australia and others have made submissions opposing exceptions to the rule that this information should not be available in any litigation, but to date the results of the consultation process are unknown.
Despite what lies ahead with respect to the use and possible access to this metadata, litigants in family law are already vulnerable to some of this information being used against them and they should always think before they express their views about their family law situation on social media or in messages to their former spouse.
Almost all affidavits now, especially those relating to parenting matters, have emails, texts, Facebook posts and the like attached as “proof” that the other person is being unreasonable/hostile/threatening etc. and I have had more than one client convicted of breaching a Violence Restraining Order by using their Facebook update to tell their friends that their ex-partners is a ……
Think about what you message, tweet and update even if you don’t have a family law case now, because it is almost guaranteed that if you say something stupid to or about your spouse it will be used against you in future family law proceedings.