Social media goes far beyond cat videos (although it might not
always seem like it). We use it to broadcast our joys, fears,
grudges, homes and daily routines. We use it to communicate with
each other, both publically and privately. A recent paper published
in the Family Law Review shows how much of that content is
used in family law proceedings. In this article, we have summarised
some of the main findings of this paper, and provided some comments
about what they mean for litigants.
The authors analysed 136 cases in first instance family law
proceedings between mid-2009 and mid-2014. They searched for
references to Facebook, Twitter, Youtube, Linkedin and Myspace.
Of all the social media evidence offered in the cases, 97% came
from Facebook. Evidence of private Facebook messages were weighted
above public status updates or comments, and Text was weighted
above photos. Furthermore, 79% of social media evidence was offered
in parenting proceedings – leaving only 21% in property,
interlocutory and child abduction proceedings.
Much of the study related to the different purposes for which
social media evidence is offered.
Suitability: In most cases, social media is offered to
provide evidence of a party's suitability to competently
parent. Usually, it is offered for a negative purpose (i.e. to show
that the other party is not competent to parent). People who used
social media to make denigrating or derogatory comments about the
other party's ability to parent tended to shoot themselves in
the foot – this evidence was frequently used to show that the
they were unsuitable to parent. In other cases, social media was
used to show that a party was engaging in drug or alcohol abuse, or
to support an argument that the other party's home is
unsuitable for children.
Intention/knowledge: Social media was often used to
show that a party intended to relocate the child/children, or that
the other party had provided consent to such relocation.
Relationship: In three cases, social media evidence
was offered to show that a parent had a good relationship with a
child. In one case, a father offered evidence that he and his son
were 'Facebook friends' (the judge commented 'that
struck me as a strange definition of a good relationship between
father and son'. The authors suggest that in the future, social
media evidence might be useful in shedding light on the strength of
a relationship by showing the frequency and nature of contact
Violence: Social media has been adduced to provide
evidence of family violence or threats by an ex-partner (or their
Children: In some cases social media was adduced in
relation to the welfare of the child – for instance, where a
child's Facebook post suggested that he/she considered
self-harm, or that he/she missed her school friends.
Credibility: Social media evidence was adduced to cast
doubt on the credibility of a witness or party – for
instance, by revealing an alias or supporting an alibi. In one
case, a father who said he had not gambled for some time posted a
Facebook picture of a pile of casino chips with the caption
'Robbing Star Casino 2011
WHAT DOES THIS MEAN FOR YOU?
If you are involved in family law proceedings, it is important
to know that evidence of your social media activity can be
admissible, and may be weighted highly in certain circumstances. In
some cases, the other party's social media may support your
application. For instance, if your ex makes denigrating or
derogatory remarks about your ability to look after the children,
this might be admissible as evidence of their
unsuitability to parent. Conversely, if you have used social media
negatively – for instance, to denigrate your ex (or their new
partner) - tell your lawyer so that they can prepare rebuttal
arguments (for instance, challenging the relevance of that
evidence). Finally, stick to sharing cat videos – take
preventative measures to avoid any issues arising in the first
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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