When we use social media platforms as an educational, professional, political and personal tool to stay connected with the world and with each other, it's easy to forget that any number of persons or organisations including potential partners, employers or court opponents can and will access the information we choose to share on-line.
By freely uploading and using social media as a photo album or a diary, we expose ourselves to the use of this information against us when we apply for jobs or end up in litigation in a Court of law.
In this article, we explore how what you share online can be used in Family Law proceedings.
Consider any one of the following scenarios:
You have reached your wits end with your former partner (or their new partner) and you decide to cathartically 'offload' all of that frustration in a lengthy Facebook post which criticises them as a person, a parent and, for good measure, for poor dress sense.
Denigrating your former partner or their partner, in any context, is not only unhelpful but it is also likely to be negatively viewed by the Family Court in your case.
Invariably, posts of this kind find their way into evidence in family law litigation in what Judge Neville has described as, "an unfortunate and increasing feature of modern litigation".
This kind of evidence can and does allow the Court to form views which may include:
- that you are unlikely to encourage or promote the relationship between your child and the other parent or their new partner;
- that you are unable to co-parent; or
- that you are not acting in your child's best interests.
Here is a real life example:
In Kester v Schultz,1 the Mother produced a post which had been uploaded to Facebook by the Father's new partner. In reference to the Mother, the post said, "who wants to go on a killing spree, Mr Schultz's ex is pissing me off". As you can imagine, this post was detrimental to the Father's case.
Your second post is to recap your recent appearance in the Court to all of your 'friends' or 'followers'.
Section 121 of the Family Law Act prohibits you from disseminating to the public or from publishing by electronic means any account of anything that would identify a party to the proceedings or associated with a party to the proceedings.2 If Section 121 is breached, the person who breaches it has committed a punishable offence.
You are tagged in a photo at your mate's 50th birthday. You are hunched over and lying in the gutter after one too many schooners. This photo then gets attached to your former partner's affidavit.
This kind of evidence may prove detrimental to you in the event there have been prior allegations of excessive alcohol use throughout the relationship. The evidence may be enough to support the allegations made by your former partner on the balance of probabilities. The Court may order you to undertake carbon-transferring deficiency testing ('CDT') or Order that your time with your children is supervised.
You post photographs of you kissing your hot new Beau on New Year's Eve surrounded by your friends and family.
How was something like this used in real life?
In Longsdorf v Granger,3 the Father used evidence from Facebook of a relationship between the Mother and a new partner. Whilst the relationship in itself was not of issue for the Court, the Mother's denial of the relationship and her assertions that, 'what is on Facebook is not real', cast doubt over the Mother's credibility as the evidence of the photographs on social media was contrary to the evidence which she gave to the Court.
Whilst we have not addressed the issue of admissibility above, these examples illustrate just how easy a simple post or photograph can, if admitted as evidence, go directly to a contentious fact in issue and how it can be used to support or undermine your case.
Ultimately, what you post, share or like on social media is up to you.
But for your benefit we provide the following easy to follow tips to avoid becoming the subject of a 'roasting' or adverse finding in your Family Law matter:
- It is an offence to publish or disseminate information about your Family Law proceedings or any person involved in those proceedings, anywhere.
What happens in Court (or in relation to Court), needs to stay in Court.
- It isn't just Family Law.
The things you post share or like can be used as evidence in all kinds of litigation including civil and criminal matters.
- Privacy settings should be used but they are not fail proof. Keep in mind that the people you share with are not necessarily your 'friends'.
- Social media is a public platform and often, the content cannot be erased.
- Most importantly, we encourage you to stop before posting and ask yourself:
'Is this something I want my children to see?' or
'If this were put to me in Court or attached to an affidavit as evidence, how would I feel about it?'
1 Kester v Schultz  FCC 174 .
2 Family Law Act 1975 (Cth) s 121.
3 Longsdorf v Granger  FMCAfam 1423 
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.