Social media is a powerful tool that is constantly evolving
and shaping the ways we communicate, share information and connect with others.
This dynamic nature of social media acts as a double-edged sword in offering
opportunities for widespread activities but also providing challenges for
privacy, discrimination and bullying. Social media platforms such as Facebook,
Instagram, Twitter and Whatsapp have increasingly become a valuable source of
information that can be used within Family Law cases. Information that is
shared on these platforms can provide useful insight into an individual’s
lifestyle, relationships and patterns of behaviour.

Admissibility of Social Media Evidence in Court

First, it is vital to note that social media posts can be
used as evidence in Court. One study from the Family Law Review found that 82%
of social media evidence was accepted when it was raised in Court. This new
array of evidence is not only relevant in highlighting digital domestic abuse,
it also has the ability to reveal behaviour patterns and activities such as
financial purchases, lifestyles, parenting arrangements and the involvement of
new partners that would otherwise be hidden. The Family Court case of Lackey
v Mae [2013] highlights the intersection between family law matters and
social media. The Father in this matter was found to produce content to his
Facebook account that aspersed the Mother of his children. The content of his
publications featured a photo of her, alongside derogatory language, referring
her to a “cheating, lying whorebag”. As a result of this defamatory language,
the Court ruled that the Father had used his Facebook account as “a weapon” to
damage the Mother’s reputation. The Court issued an Order that forced him to
remove the existing content and disallowed him from posting derogatory content
about the Mother in the future. The Judge on this case also noted that the
“abuse” occurring on social media is a “regrettable common practice nowadays”
in family court cases. The Judge’s observation about the commonality of social
media abuse underscores the need for awareness and legal frameworks to address
and mitigate the negative impacts that come with online conduct.

Parenting Orders

As previously noted, digital evidence of emails, text
messages, videos, photos and online comments is increasingly being relied upon
by parties in Court to support their case in order to have more time and
control over the child. Digital evidence can help corroborate or refute claims
about a parent’s behaviour, involvement and communication, as well as document
interactions between the parents which could be crucial in showing a history of
conflict. Ultimately, the presence of social media acts as an aid in providing
visual evidence of whether or not a child has a stable environment which may or
may not be reflected in the court process.

Financial Orders

Social media posts have been utilised in Family Law cases to
reveal a party’s actual financial circumstances. During financial proceedings,
each party is instructed to make full and frank disclosure to the Court about
their sources of earning, income, property and other financial assets. Therefore,
if for example, a party is using social media as a means to post about
extravagant and expensive holidays, whilst they seemingly don’t have a large
asset pool according to their disclosure material, questions about credibility
maybe raised within Court.

Social Media Posts Can Breach the Family Law Act

Section 121(1) of the Family Law Act, provides a strict rule of confidentiality for
all Family Law proceedings. The types of information that are prohibited are
identifying and publishing information about the parties, witnesses, children
and other participants within the proceedings:

• Names, aliases, and titles;
• Addresses;
• Property ownership details;
• Physical descriptions,
• Employment details.
• The relationship to the person or other parties
  in the case; and
• The interests or faith of the individuals.

To be completely safe during the time of Family Law proceedings, it is best not to post anything on social media that could be identified as being insulting or disrespectful to the other party. Not only are social media posts heavily scrutinised within the Family Law Court, a breach of the above-mentioned offence is also punishable by imprisonment for up to 1 year.

If you’re seeking expert legal advice on family law matters,
whether that be in relation to property or parenting, contact our team of specialist family lawyers (02 9560 6811).