Think before you post: social media and family law disputes

By Fraser Bax / 16 January 2018

For better or worse, social media is part of everyday life. It is extremely prevalent in modern society with platforms such as Facebook, Twitter, Instagram, Snapchat and LinkedIn providing users with the ability to communicate and publish information instantaneously like never before. It therefore comes as no surprise that the use of social media as evidence is becoming increasingly more prominent in family law proceedings.

If you are going through a separation, it is imperative that you are aware of your social media presence and realise what you post or send could affect the outcome of negotiations or litigation with your former partner. Reliance on text messages and emails as evidence in family law disputes and Court proceedings is not new. However, if you think that your social media posts will not be used against you by your former partner and their solicitor, then frankly you are #mistaken. 

There are various cases which indicate a willingness by the Family Courts to adopt and use online media where necessary. Any statements or representations made by you on social media will most certainly be scrutinised and tested. Furthermore, you may find yourself implicated indirectly through ‘tags’ and the sharing of content by third parties. This type of evidence can have a significant impact on the outcome of your matter. 

According to a 2010 survey undertaken by the American Academy of Matrimonial Lawyers, 81% of top US divorce attorneys stated they had seen an  increase in the number of cases using social networking evidence during the past five years. Of the online evidence being used, 66% said Facebook was the most frequent source relied upon.

Evidence from social media can be relevant to a wide range of family law disputes and proceedings including those relating to parenting matters, financial disputes, spousal maintenance and child support. Some examples of what could be used against you in family law proceedings include:

  • an album on Facebook of your lavish holiday or new car could be relied upon as evidence of your capacity to pay your former partner spousal maintenance – your former partner will certainly ‘like’ that;
  • your previous employment history or your side business listed on LinkedIn that you forgot to disclose could be evidence of your failure to provide full and frank disclosure in financial proceedings – what a connection;
  • photos on Instagram of your drunken night last Friday when your solicitor previously wrote a letter to your former partner’s solicitor stating that you were unable to care for the children that night - #sorrynotsorry;
  • your derogatory twitter tirade about your former partner from 2006 could be evidence of your attitude to parenting or your character generally – this will no doubt be retweeted in their affidavit; or
  • your dating profile which states that you drink and do drugs casually could be used as evidence as to your parenting ability. That’s a match!

In addition to gifting your former partner with invaluable evidence capable of being relied upon in Court, it is also important to be aware that it is an offence (punishable by a term of imprisonment) under section 121 of the Family Law Act for a person to publish “by other electronic means, or otherwise disseminates to the public or a section of the public” any account of any proceedings that identifies as a party to the proceedings, or a person who is related to or associated with a party to these proceedings. This includes a child of the relationship.

Don’t think about deleting your accounts and irresponsible posts either, as this could be considered destroying evidence. But if your desire to use social media on a regular basis is too strong, then here are some tips:

  1. don’t use social media to blow off steam;
  2. don’t mention your Court proceedings on social media under any circumstances;
  3. don’t be offensive or make disparaging comments on social media about anyone;
  4. think carefully before posting photos on social media of yourself or your children; and
  5. consider who is able to see the material you post on social media.

Distilled into a single rule, if you don’t want a Judge to read it, don’t post it. Social media in the midst of a family law dispute is dangerous and should be approached with extreme caution.

For further information or discussion, please contact our Family and Relationship Law team. 

Fraser Bax
Senior Associate
Fraser is a Senior Associate in our Family and Relationship Law practice.
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