home Opinions Don’t Shoot the E-Messenger: Clark v Moxley, 2017

Don’t Shoot the E-Messenger: Clark v Moxley, 2017


Modern love is a strange experience. Love used to involve sharing milkshakes at the local diner, bringing flowers on a first date, and defining when we were going steady. But now, the internet has introduced new social patterns for us to navigate. From trying to figure out why people keep texting me the eggplant emoji, to wondering why people keep complimenting my peach emoji, the world of love has changed. We have entered an era where our romantic lives have a digital component attached to them.

Broadly speaking, our digital communication is becoming increasingly scrutinized from a legal perspective. We need look no further for proof of this than our very own adjunct professor Dr. Elizabeth Kirley, who co-authored, “The Emoji Factor: Humanizing the Emerging Law of Digital Speech”. This increased reliance on emojis to express ourselves demonstrates how electronic communication has become vital in understanding modern communication. It also shows that the legal system can no longer avoid the inevitable: whether you love or hate electronic-based communication, we need to understand the legal ramifications of how people actually communicate on a daily basis.

This has implications in family law, as marriage breakdown in the contemporary world constantly considers technologically-based communication by parties. Unlike speech, text-based forms of interaction (i.e. text, social media, and emails) are recorded and can be included in post-separation litigation. In fact, they are one of the more prevalent forms of evidence adduced in family law matters.

This is where Clark v Moxley starts to pique our interest, a case that turned on the nature of electronic communication between the disputing parties. In this case, there was a parenting disagreement about whether there should be an equal parenting schedule and whether the child should attend the school of his choice or the school that his mother had chosen for him. For our purposes, we’re less interested in the specifics of the matter at hand. Instead, we’re going to look at how the emails between the parents were included in the judicial decision-making process about which parent to “side” with. True to my German heritage, which is obsessed with cautionary tales, this case illustrates how the use of emails and social media can impact one’s family law matter.

It is important to know that once the marriage broke down, the mother re-partnered and moved to a new home with her new partner. The mother wanted her son from the previous marriage to change schools, but his father disagreed. While the mother wanted the son closer to their new home, the father wanted the son to remain in the school he had been attending since kindergarten. The child had an amicable and loving relationship with both parents, and wanted to spend time with them equally.

However, despite these lovely feelings between the child and the parents, the Court found that such tenderness did not exist between the separated parties. Unfortunately, the father had a history of communicating inappropriately with the child: he would text the child to complain about the mother not letting him up from school. The father even acknowledged that he had made some mistakes; nevertheless, the Court found that the father’s statements stood in stark contrast to the emails he sent to his family (while copying the mother), in which he belittled her and urged his family to ignore her email to them about the child’s upcoming graduation.

The court eventually found that it was difficult to accept the child’s view as one that was uninfluenced by the father. In speaking about the emails, the Court noted, “[T]he father’s emails are very damaging to his case and make it clear that he is unduly influencing the child and that the child’s wishes are tainted by the father’s improper conduct.” The Court decided it could not accept the child’s preferences in this case as determinative of the best course of due to the father’s various negative electronic communications.

This case serves as an important cautionary tale for anyone involved in a family law matter. While most children these days are learning to assume that everything they post online could be used against them, adults who have not grown up with the internet have not had the same warnings. While it can be tempting to call your ex-spouse a whole bunch of mean names, remember that they may not be the only person to read your words. It may be too late to try and convince the judge you are a reasonable and kind person if your electronic track record offers a contrasting viewpoint.