Social media has become an integral part of our lives in both beneficial and damaging ways. The social media which allows for us to connect with loved ones and access to numerous forms of entertainment is the same social media that allows individuals to remotely stalk their former partners, post provocative images, share private information and slander others publicly with the touch of a button.
When it comes to family law matters, it’s imperative to proceed with caution when using social media as it can be used as evidence against you, may result in criminal prosecution and may have impacts on parenting orders.
In most cases, social media evidence is adduced to prove the other party is an unsuitable parent. Section 121 of the Family Law Act 1975 (“FLA”) aims to protect the privacy of people involved in family law proceedings by prohibiting the publishing of material which may result in the identification of the parties. Breaching this section can result in criminal prosecution.
Using Social Media as Evidence in Cases
Not all evidence is admissible in court as per the Evidence Act 1995, however many different types of social media evidence can, and have been used in family law proceedings.
Social media evidence that can be brought in family law matters can include material such as:
- Derogatory comments or posts made about or to the former partner;
- The sharing of private and personal information about a family law matter online including the personal details of the other party;
- Screenshots of private messages exchanged through messaging services such as Instagram messages, Facebook Messenger and WhatsApp;
- Photos of holidays, new expensive assets or other images demonstrating the person posting is living a luxurious life;
- Posts and photos about excessive alcohol consumption, drug use or other criminal activity; and
- The sharing or posting of explicit images which may be deemed offensive.
The judge will decide how much weight to give a particular piece of evidence, so not all social media evidence will be treated equally.
Risks of Using Social Media During Legal Proceedings
When using social media, it is important to remember that anything you say, and post online may be relevant to proceedings and could be used against you as evidence.
If you post private details about the proceedings online, you may be at risk of being prosecuted criminally, as this can be a breach of section 121 of the FLA. In this case, the judge may refer you to the Australian Federal Police, and if you are prosecuted, you can face up to 12 months in prison.
Another danger of using social media in an inappropriate way during family law proceedings, is that you may delete a post, but that doesn’t mean the post is gone. By the time you delete a post, it may have already been recorded by someone and can still be used as evidence even if it is no longer live on the internet.
The risk of using social media carelessly during family law proceedings is certainly not worth the reward. If used against you, social media may have impacts on the amount of responsibility and time you have with your children, depending on the nature of the posts or may prove the occurrence of phenomena such as parental alienation.
Although not a legal consequence, making harmful posts on social media or sending damaging messages can also damage your relationships and reputation. Other people may be offended by certain posts and your public image may be damaged, especially if you are publicly criticising your former partner on social media.
Best Practices for Social Media Use in Family Law Matters
Whilst social media may be beneficial during a difficult time like going through family law proceedings to stay connected, it is important to be careful to avoid doing anything on social media that the other party can use against you.
If you’re attempting to co-parent with the other party, it may be wise to use an app specifically designed to aid communication between separated parents and may feel more formal than using a social media app such as Facebook Messenger to communicate.
Apps of this nature include:
- Co Parently;
- 2houses;
- Our Family Wizard; and
- Cozi.
Emotions can run high in family law proceedings, so it is important to think clearly and rationally about how you’re behaving on social media.
One way of thinking about social media use is by contemplating what a judge would think of a particular image, post or message you had posted or sent on social media apps. If a post or message could be construed to imply that you were degrading the other parent, or that you are an unsuitable parent, you should avoid posting it.
Additionally, it may be appropriate to remove the other party from social media apps and block their accounts in some cases. It is imperative that you are extremely cautious when using social media as it can have serious consequences for your court proceedings.
It may also be important to consider your own safety and privacy and check to see whether your location is visible on any apps.
You should also change any passwords that your former partner may have retained from before the separation.
Case Studies: Social Media in Real Legal Scenarios
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Case #1:
In the case of Lackey & Mae [2013] FMCAfam 284, parenting orders were sought in relation to four children. The parties to the proceedings were a husband and wife and the court had identified that the husband and his family had “waged a relentless battle against the mother for many years”.
The father’s family had made a number of social media posts during proceedings which denigrated the Court, the independent children’s lawyers and the litigation process, and had detailed information relating to the proceeding, including information taken from affidavits that had recently been filed.
Additionally, social media posts had been made falsely accusing the mother of being sexually and physically abusive to the children. The father was warned by the solicitor for the mother that posting on social media in such a way was in breach of s121 of the FLA. Despite this warning, the father and his family continued posting on Facebook about the proceeding.
Although there were other relevant issues to parenting in this case, the orders made were to the effect that the mother have sole responsibility of the children and the children spend supervised time with the father not more than once a fortnight.
Importantly, the father and his family were also restrained from posting on social media in relation to the proceedings, the mother, the children and any member of the mother’s family.
The father was also ordered to remove all references to the proceedings from Facebook. The Court also made the contravention of section 121 available to the Marshal of the Court and the Commissioner of the Australian Federal Police for further prosecution and monitoring of the father’s social media accounts for the next two years following the orders, for any material related to the proceedings.
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Case #2:
In the case of Rose & Barwon (NO.2) [2010] FamCA 738, the mother had made a Facebook post implying she engaged in certain conduct, to extend proceedings and cause the father to incur large legal bills.
The Court stated that there are consequences for litigants who behave in this way. The Court ordered that the mother pay $15,000 of the father’s costs as a consequence.
It is imperative to act with caution when using social media during family law proceedings.
There are numerous examples of the consequences of using social media irresponsibly and harmfully during family law proceedings. Act with caution and seek legal advice if you have any concerns about social media use during family law proceedings.
Best advice is usually to refrain from social media use during family law proceedings altogether.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.