Separation and Divorce:
Using Photos in Family Law Matters

4th May 2017

By Lisa Wagner

Are you needing help after separation?

Do you want to know how to better manage your family law matter? If you do, read on for some important information.

As technology advances, so too does our tendency to seek to capture every moment of our lives. With the advent of smart phones and photo-sharing apps such as Facebook and Snapchat, it is even easier to capture these moments and share them among our friends.

Not a week goes by when one of our family lawyers does not receive a photo or in some cases files of hundreds of photos intending to provide evidence of something that has or hasn’t happened or perhaps something that, despite protests to the contrary and denials, does in fact exist. Over my twenty plus years of practice in family law I have seen a lot of photos. I have seen photos taken by a wife of a safe full of jewellery that the husband was denying existed. I have seen photos of bundles of hundred dollar notes, amounting to thousands of dollars, rolled up in a sock drawer. I have seen photos of pantries full of tinned food past it “use by date”, photos of sunburnt children and other photos of children with grazes, bites and rashes all over their bodies. I have been asked to look at photos of people’s dishevelled bedrooms, kitchens, homes, cars and quite simply photos of people’s dishevelled lives.

So, can these photos be used as evidence in family law matters and if so, how can they be used?

Whilst the rules of evidence may be more relaxed in family law court matters they still apply. The Family Court and Federal Circuit Court also have particular rules and regulations that prescribe what must be done in order to be able to rely on certain types of evidence. Each individual case must be considered on its own unique facts and circumstances. Photos are said to “tell a thousand words”. This is sometimes true and photos in family law cases can be good evidence, in fact they can provide the best evidence.

But a cautionary warning…the use of photos in family law matters can backfire. It can leave the person who took the photo open to heavy crossfire, even if that person never ends up having to step into the witness box and face the pressure of cross-examination.

The utilisation of photos in family law matters can often say as much about the photo-taker as the photo itself:

  1. Were you trespassing when you opened the safe?
  2. Why didn’t you comfort your sunburnt child instead of taking a photo of their pain?
  3. What steps did you take to obtain assistance and support for your ex-spouse when you could see that running the house was becoming too much?
  4. Where were your children when you took a photo of their unfinished homework?

If the evidence is improperly obtained, the Court has a discretion to strike out any piece of such evidence.

It is otherwise important to consider that, whilst a photo may prove useful in demonstrating a fact, it must be considered whether the evidence itself is relevant. For example, does any legal privilege apply? It must also be considered whether the evidence is in fact relevant, so you might be able to prove that your former partner was not where they said they would be on a given occasion, however, you must consider what this fact goes towards to proving.

There is no right or wrong answer to any of these questions. A photo is simply a snapshot in time and not a complete picture. Telling the full story in family law matters is a very nuanced and at times sophisticated process. Ensuring that you present the true picture can be a tricky business and a photo without a full story and a tested explanation is, in our experience as family lawyers, often only of limited use.

If you would like assistance in preparing your family law matter or simply want advice about your separation, please contact us on 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professionals available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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