It has been said in recent Family Court proceedings that: “An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of ‘social media.’ While it can be used for good, often it is used as a weapon, either by one or both of the parties, and or by their respective supporters. It is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore for (invariably incriminating) “evidence” to be used in litigation. As a weapon, it has particularly insidious features.”1
The use of evidence obtained via social media has increased dramatically in family court proceedings. Your Facebook, Instagram, Twitter, Snapchat and LinkedIn accounts as well as your online dating profiles may be a veritable goldmine of information for your ex-partner to use as evidence against you.
According to a study undertaken by Blakely, Easteal, Fitch and Kennedy, evidence from social media was accepted in 82% of family law cases.2 Due to the interpretation of the rules of evidence in family court proceedings, you need to be extremely careful about what you post online.
Some examples of what could be used against you in Family Court proceedings include:
- Screenshots of posts, comments or text messages showing derogatory comments about your ex
- Private messages through Facebook Messenger, Instagram, Snapchat
- Posts in public forum discussions
- Video blogs on Youtube
- Private messages between you and your child/ren
- Screenshots of Facebook posts about the court proceedings, the judicial officer, the Court, the independent children’s lawyer, the Department of Communities or the Police
- Photographs on Instagram of your partying, drug and alcohol use
- Screenshots of your online dating profiles
- Sexual or suggestive photographs of yourself
- Posting or sharing of Facebook Posts about domestic or family violence
This kind of material posted on social media can been used as evidence to demonstrate:
- Your capacity to parent and to meet the needs of your children
- Your credibility and character
- Your attitude towards parenting
- Your intentions or knowledge – e.g. your intentions to move/relocate your children
- Evidence of your intimate relationships
- Your financial position or ability to earn an income in financial proceedings
By criticising your ex online, you may be considered by the judge to lack insight, not to be child-focused or to have no concern for how your posting could impact upon your children. It could also show that you blame the other parent and fail to take responsibility for your own actions.
“It never ceases to astound me how many litigants in this Court publish material through social media such as Facebook without consideration as to how poorly it might reflect upon them if adduced in evidence in parenting proceedings they are involved in.”3
Remember that anything you post online is in the public domain and is there forever – this means that one day your children may see it.
“It cannot, however, be in [the child’s] best interest to have private details of their lives and their parents’ lives and, in particular, allegations of complaints to the Department of Community Services and to the Police, being the subject of gossip and chit-chat on social media (at ).”
Even if you turn your social media accounts to private, the material you post is still in the public domain.
You should also be aware that it is an offence under section 121 of the Family Law Act 1975 (Cth) to publish anything on social media that identifies a party or child involved in family law proceedings. If found guilty, you could be fined, or imprisoned for up to one year!
Tips to Avoid Social Media Posting Trap
- Do not post anything about your ex, the Court, the process, the judicial officer, the independent children’s lawyer, the Police or anyone involved in the children’s lives.
- Do not post anything in the heat of the moment. Go exercise or call a friend to blow off some steam – chances are once you have cooled off you will realise that the post was not a good idea.
- Do not engage with your children online about the court proceedings
- Do not post sexualised material
- Avoid social media altogether during court proceedings – log off and stay offline!
- Assume that everything you post on social media will be used as evidence against you. So…. step away from the keyboard!
- Don’t delete your accounts or posts after the fact as this could be considered destroying evidence
Instead….think once before you act, twice before you speak and three times before you post anything on Facebook!
- Lackey & Mae  FMCAfam 284 at 9.
- “Social Media Evidence in Family Law: What can be Used and its Probative Value.”
- Dylan & Bilson and Anor  FamCA 573 at 222.
If you have questions relating to family law or to the legal use of social media, please do not hesitate to contact Havilah Legal on (08) 9221 2339 or book an appointment online at https://contact.havilahlegal.com.au/.
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