Australia: Social media and family law – what to post and what not to post when going through a divorce.

Last Updated: 7 August 2018
Article by Danielle C Hadida

Did you know what you post on social media can also be used in family law matters?

There are many benefits of using social media – connecting with old friends, staying in touch with family members on the other side of the globe or simply providing scrolling entertainment on the daily train commute. The downside of social media is that your content may not be as secure or private as you may like to think.

Screenshots of your Facebook or Instagram profiles, messages or photographs can be used as evidence in family law proceedings and are increasingly being relied upon. The following are examples of what has been and what can be relied upon in Family Court proceedings:

  • screenshots of text messages, or messages exchanged on apps like WhatsApp;
  • photographs of parents not acting safely with their children (ie on motorbikes without helmets, leaving children unsupervised etc);
  • photographs of parents being out on the town or on holiday when they told the other parent the child was unavailable for contact due to school commitments or the like;
  • posts or screenshots of profiles showing derogatory comments about the other party;
  • posts or photographs at expensive restaurants, on holidays or at work conferences when a party is claiming to be financially struggling or not in paid employment; and
  • tagged posts or comments made by family members and friends which are derogatory or mention you, the other party and the proceedings.

The Family Law Act prevents parties from publishing certain information

Section 121 of the Family Law Act 1975 prevents parties to proceedings from publishing information about proceedings which identifies the parties involved in a case or their witnesses.

Parties to family law proceedings often forget that Facebook and other social media websites are included in this rule. So, it is also increasingly common that parties to family law proceedings seek specific injunctions against the other party from posting any derogatory reference to them or their proceedings to their social media profiles.

Screenshots of a party making those posts on their social media profiles are increasingly being used to demonstrate to the Family Court that party is in clear breach of binding Family Court Orders.

Family Law friendly tips when posting on social media

It is always important to be very careful about what you post online as it may end up being submitted as evidence to the Family Court and could be detrimental to your case. We recommend the following tips:

  • never post angry – if you come back from a Family Court hearing and are not happy with the result or are angry about something your ex said, do not vent on social media;
  • never mention (directly or indirectly) anything about the proceedings, the parties or witnesses involved;
  • carefully think about who will see the posts of you and your children and how someone else might interpret those posts;
  • make sure your privacy settings are up to date; and
  • never post anything derogatory, rude or offensive about your ex under any circumstances.

When in doubt – the simple rule to follow is DO NOT POST!

Also refer our article The Use of Recordings as Evidence in Family Law Proceedings that looked at whether or not audio and visual recordings could be used as evidence.

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.

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Danielle C Hadida
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