Most of us use social media in our daily lives to keep in touch and communicate with our family and friends without a second thought. It has become an integral part of our lives. But what if you are going through a family law dispute? It can not only negatively affect the outcome of your matter and be used as evidence against you; it could also see you being prosecuted under the Family Law Act 1975 (Cth).
Exercising caution when posting anything on social media is a must if you are either going through or contemplating initiating Family Law proceedings. This extends to your wider acquaintance and friendship group. It is common for screenshots of Facebook and Instagram posts to be annexed to Family Law affidavits.
Types of Social Media Evidence
Not all evidence is admissible in Court, however, many different types of social media evidence can, and have been used in Family Law proceedings, such as:
- Derogatory or defamatory comments or posts about the other party or their family;
- Posts and/or photographs of use of illicit drugs or engaging in excessive alcohol consumption;
- Photographs of lavish overseas holidays and luxury items, such as handbags, designer clothes and eating out at expensive restaurants;
- Screenshots of private messages exchanged via text, Facebook Messenger, or WhatsApp; and
- Provocative, or sexually explicit images of the parties, which may be deemed offensive.
What happens if social media is used as Evidence?
In parenting matters, images or posts depicting irresponsible behaviour or drug or alcohol use can make it difficult for a party to convince the Court that you do not pose a risk of endangerment to your children. Social media posts depicting a lavish lifestyle can be used as evidence in support of spousal maintenance, property settlements or child support. In cases where the duration or existence of a de-facto relationship is in question, photographs or posts can be used as evidence of a couple’s activities and the public acknowledgement of their relationship.
What does the Law say?
It is an offence to communicate to the public an account of (Family Law) proceedings which identifies:
- A party to the proceedings;
- A witness to the proceedings;
- A person who is related to, or associated with, a party to the proceedings; or
- A person who is alleged to be, in any other way, concerned in the matter to which the proceedings relate.
However, this offence does not apply to communications that occur in accordance with Court directions or approved in any other way by the Court.
Examples of breaching the law include sharing details about your family law proceedings, including Court dates and outcomes on social media; providing copies of Court documents, such as Court orders and affidavits to people who are not party to the proceedings or who have not been granted a Court order to view the material (i.e. Family Report writers and medical professionals etc.).
In the 2024 parenting matter of McLeay & McLeay, the father made several posts on social media, stating that the Family Court had ordered his children to spend only six hours of supervised time with him and had otherwise been ordered his children to spend no time with him. The Judge referred the matter to the Australian Federal Police to investigate whether the father had breached the Act.
It is also an offence to communicate to the public a list of proceedings identified names of the parties. Once again, this offence does not apply to communications that occur in accordance with Court directions or approved in any other way by the Court.
The reason for the strict restrictions is to ensure the privacy and well-being of all parties, particularly children from the long-lasting impact of public exposure.
Even if your post is not in breach of the Act, the Court encourages parties to be collaborative and respectful in reaching a resolution. Posting negative comments about a former partner (or their family members) may cause the Court to question your commitment to reaching an outcome. It also provides an opportunity for the other party to gather the images and posts together as evidence that you are not child-focused (in parenting matters) or collaborative. Your social media activity can negatively impact the orders the Court may make.
Our Tips
If you are navigating the challenges of separation from your partner, we advise the following:
- STOP before you post or send that message and think about the impact it may have on you and/or your children.
- Change your password on your social media accounts and devices.
- Avoid displaying any lavish holidays or purchases until after your matter has been finalised.
- Refrain from making accusatory, defamatory posts about your former partner (this includes sending these types of messages to your former partner).
- Refrain from discussing any mental health struggles you are having on social media.
- In parenting matters, consider using a Parenting App. The Court regularly includes parenting apps in parenting orders. Some apps are free and can help with multi-function calendars and communication tools (including video calls). It is also a robust record-keeping system as it records all activities and messages are unable to be deleted.
The best advice is to refrain from posting to social media anything about your matter, or your former partner during your matter. If you do decide to post on social media, ask yourself: “Would I want that I am about to post to appear on the front page of tomorrow’s Advertiser? Or would I want the Judge to read my messages?” Make sure that you ask family and friends not to post (including tagging) any updates and photos that include you.
If you have any concerns about social media use during family law proceedings, please contact one of our friendly, experienced Family Law solicitors by email or by telephone on (08) 8359 3444.