SOCIAL MEDIA AND FAMILY LAW: POST OR POTENTIAL EVIDENCE

Shakespeare wrote that ‘all the world’s a stage’ and this is never truer than in the world of social media.  Technological advancements in the past few years has seen an exponential growth in social media platforms and social media such as Facebook, Instagram, Twitter and Snapchat are an integral part of modern society utilised daily by millions of people. Social media allows us to share the exciting (and the trivial) aspects of our lives with friends, family and the world at large. However, the advantages of social media in enabling us to share our lives with family and friends can often become disadvantages in family law proceedings.

In recent times, the Family Law Courts have also been increasingly willing to accept social media as a form of evidence, with copies of negative and derogatory messages, emails, text messages and photos received from their former partner or screen shots of social media posts being included in affidavit material.

It is not just the vitriolic communications and posts that are being used as evidence. Social media posts are also used as evidence to prove or disprove other disputes. For example:

  • posts about holidays and new purchases may be used to combat an argument that a party is unable to pay child support.
  • posts about a parent having a ‘big night out’ binge drinking or consuming illegal substances can be used to further an argument about a parent’s substance abuse and parenting capacity (especially if the children were in the parent’s care at the time).
  • posts disparaging the other parent are likely to be included in evidence to demonstrate the parent is unable to encourage a positive parenting relationship.
  • photographs and location updates can also be used in evidence. In one case, a father was ordered to spend time with the child at home. However, during the proceedings, a photograph in evidence demonstrated the Father had been spending time with the child at locations other than his home. This had serious consequences as it demonstrated a breach of Court Orders and had a detrimental impact upon the Father’s case.

Parties also need to be aware that section 121 of the Family Law Act makes it an offence to publish any account of proceedings or images which identify a party or child involved in family law proceedings.  If found guilty of such an offence, a person may be fined or imprisoned for up to 1 year.

In the 2013 case of Lackey and Mae, the Father and his family made derogatory comments about the Court, the Independent Children’s Lawyer, expert witnesses and the Mother in relation to family law proceedings on social media. The Court found that the Father had breached section 121 of the Family Law Act and ordered that the Father and his family remove from Facebook all references to the Court proceedings and prevented him or his family from publishing further material relating to the proceedings, the Mother or the Mother’s family. The Australian Federal Police were also provided with a copy of the Court’s orders and were asked to monitor the social medial activity of the Father and his family for a period of two years to ensure that they were complying with the Court orders.  It was further ordered that if the Father or his family breached the orders, the matter was to be referred to the Australian Federal Police for prosecution.

In the 2015 case of Longford & Byrne, following an unsuccessful interim application, the Father vented his frustrations on Facebook in a number of damning posts about the Mother, including posting a photo of her and the children captioned “My name is Ms Longford. I am a child thief.”  The Independent Children’s Lawyer made an urgent application seeking to injunct the Father from posting such material on the internet and requiring him to take down the offending posts.

Orders were made restricting the Father from posting on the internet or otherwise publishing any photograph, reference or comments of or in relation to the Mother or children. The Father was also ordered to remove any posting on Facebook or other social media page controlled by him meeting the above criteria.

The Judge commented that while the post did not specifically refer to the Court proceedings that were then on foot, the Judge declared that if this had this been the case, he would have referred the Facebook posts to the Court Marshal to consider prosecuting the Father.

It is understood that family law proceedings can be frustrating and concern a difficult time for most people.

  • If you need to ‘vent’, do so to a close friend or family member and on a less public stage than social media.
  • Think before you post. It is best not to post anything that could be relevant to your matter, even if you intend it only to be seen by your friends and not the public in general.  Deleting a post you later regret won’t help if someone has already taken a screen shot of it.
  • Take steps to change passwords, limit access and privacy settings as to who may view the posts (including children of the relationship).

If you have any questions or require assistance with a family law matter, please contact:

Vicki Kelly, Accredited Family Law Specialist, vkelly@mtpartners.com.au

Renee Smith, Accredited Family Law Specialist, rsmith@mtpartners.com.au

Emma Shuttleworth, eshuttleworth@mtpartners.com.au

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