“The Litigation Version of 50 Shades of Grey”: How Your Conduct and Online Presence May Not Be Relevant in Custody and Access Cases
A parent's conduct is only relevant to custody and access cases if it affects the parent’s ability to care for the child and meet their needs (Durham v Robertson (1998), 79 ACWS (3d) 958.) So what happens when your ex-partner drags up something from your past? How about an embarrassing post you made online? What privacy are you afforded? With social media playing such a large role in our daily lives, privacy is hard to come by. But before you start taking screen shots of your ex-partner’s Facebook posts and Twitter account in order to embarrass them in court, maybe take a second thought. In the recent case of S(J) v M(M), a Father brought a motion for primary residence of the older child, and expanded access of the younger child. The Father attached a number of explicit images of the Mother and sexually graphic text conversations to his materials. His reasoning for doing so was speculation from the Father’s counsel that the Mother must have spent so much time "sexting" in 2013, that “possibly she neglected their son (para 28(c)).” This was not received well by Justice Pazaratz, who set out to make a point in his decision: “nasty doesn’t work… nasty won’t be tolerated (para 30&31).” Justice Pazaratz’s no-nonsense (and rather entertaining) decision laid out the instances where social media has helped the courts: “Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:
- Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
- Intimidating and threatening behaviour often becomes self-evident in texts.
- A parent's resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
- It's quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them (para 12.)”