Technology has significantly impacted various areas of law. In Australia, child custody and divorce settlement cases are frequently affected. Allegations of family violence are also considered among the most sensitive cases in the Australian legal system.
Challenges have risen when it comes to these domestic family law cases. Fairness is one of the three pillars in law. It is impacted by rapid technological advancements. Concerns are raised about privacy. Bias and evidence handling are also affected.
Opportunities for transparency and efficiency are offered by these technological advancements. Significant challenges are also posed. The right to a fair trial is affected. Family disputes are especially impacted.
Surveillance and the Right to Privacy in Ensuring a Fair Trial in Family Law
Surveillance technologies have become increasingly prevalent in family law cases. This includes GPS tracking devices, private security cameras and smartphones. For example, a parent in a custody dispute may present evidence which is obtained through movements of the other parent through a GPS-enabled device which is unbeknownst to the other parent.
This, however, sees issues arise when such surveillance is obtained without the consent of one party. Should a party have given previous consent to such GPS-enabled tracking devices such as Find my iPhone, when did consent begin and end?
This raises the question whether such use of surveillance in family cases is an infringement of privacy rights? The handling of personal information is governed by the Privacy Act 1988. A deeper litigation issue is introduced. An already strenuous court proceeding is further impacted. Both parties are affected.
While such evidence may support the claims, it may be contested that it was unlawfully obtained, potentially making it inadmissible and further evidence similar to that nature may be void in court.
Social Media, Jury Bias and the Right to a Fair Trial in Family Law
Social media is a powerful tool that may assist or hinder your family dispute case.
Private aspects are often revealed on platforms like Facebook or Instagram. These may be used in court. One parent may be portrayed as unfit for custody. Juries or judges may be influenced by social media. Full context of online situations may be overlooked. Fitness for custody may be decided unfairly.
Reliance on social media evidence alone should be understood as risky. Biased outcomes may be produced. The full range of factors may be ignored. Decision-making may be improperly influenced.
Digital Evidence and Its Integrity
In many current domestic family cases, there is a growing reliance on digital evidence, such as text messages, emails, voice notes and video recordings. Although these forms of evidence are integral, there are significant concerns about their authenticity and the potential for tampering with.
An effective way to maintain the integrity of digital evidence is to engage in digital forensic experts. They play a key role in ensuring that the evidence has been properly collected, preserved and analysed without corrupting the information. In addition, the inclusion of expert testimony can significantly enhance the credibility of digital evidence, providing all assurances that the data is genuine and admissible.
While this may be the case it is also important to note that such experts will add a cost to the litigation proceedings that may far exceed the value they bring. This must be considered when deciding what digital evidence should be used in the proceedings.
Ensuring a Fair Trial in the Digital Age
As the digital age continues to advance, the legal system must adapt to new challenges in ensuring fair trials, particularly in sensitive domestic family law matters. While technology has created new opportunities for evidence gathering and case management, it has also introduced various complexities that could undermine a party’s right to a fair trial.
Ultimately, ensuring a fair trial in the digital age requires a multi-faceted approach. Privacy must be safeguarded. Clear guidelines for digital evidence must be established. Biases from social media and surveillance must be recognised. The legal system is being shaped by technological change. Fundamental principles of fairness must be maintained. Justice in family law must remain the focus.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
