Social media has become a valuable tool for families going through the process of separation or divorce as it allows for easy and instant communication. Whether it’s organising parental arrangements between the separating parties or allowing parents and kids to stay connected and exchange pictures and messages, social media is undoubtedly a means of better communication and a faster way of connecting than ever before. However, it is important to remember that social media must be used responsibly, particularly when parties are involved in family law proceedings, as social media posts may end up being used in evidence during family law proceedings to the detriment of the author. In this blog, we will review the current position on social media, how it may be applied as evidence in family law, and the repercussions that may flow from negative or derogatory posts.

What Does The Law Say?

The Family Law Act states that it is a punishable offence to publish or broadcast any account of family law proceedings which identifies any parties, children or witnesses involved in the proceedings. This is an important provision as it aims to protect the privacy of families going through the often stressful process of family law proceedings. This extends to all forms of publishing, including posting on social media or the internet generally.  The court also has the power to order you to refrain from posting or removing existing posts.

Moreover, challenges on a party’s credibility are fairly common in family law cases, for example, in the case of the suitability of a parent to retain custody of a child, and the use of social media posts or photos are an easy tool to demonstrate this. One judge described the usage of social media for the purpose of damaging another party’s case as “an unfortunate and increasing feature of modern litigation”.

What Material Can Be Used?

Photos from Facebook or Instagram posts and profiles, private messages or pictures can be used as evidence and are gradually being relied upon in family law proceedings. Some examples of different forms of social media include:

  • Text messages or direct messages on apps such as WhatsApp, Facebook Messenger, emails or Instagram messenger;
  • Photographs of parents not acting in a safe and responsible manner;
  • Facebook, Twitter or Instagram posts relating to the location of a child which was not agreed upon by the parties;
  • Derogatory or hurtful social media posts; and
  • Social media posts at expensive venues when one party claims to be financially struggling.

A Recent Example

In a recent decision, the father sought the child to be returned to New Zealand from Australia. The mother objected to the relocation and asserted that the relocation to Australia was through an alleged agreement between the parents. The father presented evidence of the mother’s Facebook posts that were contrary to her previous assertion, as well as comments which ascertained the purported Australian travel to be classified as a ‘holiday’. In this case, the Court ultimately ordered that the child should be returned to New Zealand.

Get Legal Advice

Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter and take the stress out of the divorce or other family law process. If you need any assistance please don’t hesitate to get in contact with one of our lawyers via email at law@etheringtons.com.au or call us on 02 9963 9800 for a no-obligation discussion.