In a world seemingly ruled by technology and supported by social media, it comes as no surprise that digital and, specifically, social media-focused evidence can now be utilised by parties to family law matters. With social media platforms such as Facebook, Twitter, Instagram, Snapchat and LinkedIn granting users the capability to instantaneously publish essentially anything that they wish at the click of a button, it is not uncommon for posts to end up being relied upon as evidence in court proceedings.
With this in mind, it is crucial for parties to be aware that it is not just correspondence between their lawyers (or themselves, if self-represented) that may find its way into an Affidavit - social media evidence can often be a relatively quick and effective way of providing evidence in support of a disputed fact. This is particularly relevant within the context of parenting cases, where the best interests of the child are of paramount concern.
Coleman Greig Family Law team suggests taking into account the below examples of circumstances wherein social media evidence may be relevant:
- Where the conduct of the parties is an issue: Screenshots of posts, comments or messages showing derogatory comments regarding either the child or other party.
- Where neglect or safety is an issue: Photographs of parents acting irresponsibly.
- Where full and frank disclosure is not being provided: A LinkedIn account may show that a party either is, or has been employed somewhere that they had previously not disclosed;
- Where financial struggles are asserted, or payments are not being met (e.g. spousal maintenance): Posts or photographs evidencing liquidity such as attending expensive activities or restaurants, holidays, purchasing new assets etc.
- Where a party asserts that a de-facto relationship doesn't exist: Photographs and posts evidencing that there was such a relationship (which, if discovered, invokes the jurisdiction of the family court to make orders).
The above examples illustrate how often a simple post or photograph can go directly to a contentious fact in issue, and can often, quite easily, either support or go against a party's case.
It is also an offence, under section 121 of the Family Law Act 1975 (Cth) to publish "by other electronic means, or otherwise [disseminate] to the public or a section of the public" any account of anything that would identify a party to the proceedings, or a person who is related to, or associated with a party to the proceedings.
With this in mind, it is incredibly important that parties resist the urge to vent about their family law matters via posts on social media.
The above shows the power of digital evidence in today's technologically-reliant world, and gives a good idea of the type of evidence that we may start to see make its way into the jurisdiction in the future.
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.