The explosion of technology this century has impacted on every aspect of our busy lives. Spyware and surveillance technology has moved from the realm of James Bond to mainstream availability. The cost of such products, usually purchased on the web, is low.
So, how is this relevant to family law? Director of CLO Lawyers Toowoomba, Murray Crawford, recounts matters handled by the firm where estranged spouses have allegedly installed spyware onto mobile phones without the knowledge or consent of the phone user.
The spyware enabled remote and silent tracking of the whereabouts of the phone user, recording of conversations, activation of the camera, access to photos and even access to the web browsing history. The intent, it seems, was to accumulate incriminating evidence against former spouses.
How can this situation be avoided? Given the potentially significant detrimental consequences of phone hacking, the presence of any strange pop-ups or features on a smart phone should be immediately investigated. The phone should be submitted for testing and cleaned of all spyware by a qualified technician and evidence recorded of its removal (e.g. in a letter from the technician). A recurrence would be best managed by obtaining a new phone and private number.
The law is still coming to terms with these issues. However, judges in family law cases have shown a willingness to accept evidence gathered with spyware if it is “probative” enough. Accordingly, there is no safety in alleging illegal means of gathering as a way to prevent evidence collected using surveillance technology being produced to the court.
Knowing that it is possible to have eyes and ears into a former partner’s post-separation private life (and those of their children) is concerning. Until the law can catch up, it will pay to be aware and take preventative measures especially where the future parenting of children could be at stake.
