The rise of the technology age has made communication over the past few years easier. Facebook, Twitter, Skype and Instagram, just to name a few, now all facilitate instant communication between users anywhere in the world.
Social media has many positive uses and has become a useful tool for separated families to maintain a line of communication. These online platforms, particularly Facebook, allow parents and children to remain connected and exchange information, photos and private messages. It has become common for the Family Court to include these forms of communication in Parenting Orders to ensure that children have regular communication with both of their parents, particularly with regard to the non-resident parent.
However, Facebook is frequently used as a sounding board to vent frustration. When used in this manner it is not uncommon for a harmless, or off the cuff comment, to be either misconstrued or shared by “friends” and brought to the attention of others and for this reason we need to be mindful of what we post on these forums.
While this might feel like a release and you may think that you are doing so privately, such actions can be deemed a breach of the Family Law Act. Pursuant to Section 121 of the Family Law Act it is an offence to publish, including in an electronic format, any material that may identify a person subject to, or involved in, proceedings which are listed before the Family Court or the Federal Circuit Court.
As a result of the growth in popularity of such electronic platforms, we have seen an influx of “screen shots” of social media posts being included in affidavit material, with the Family Law Court becoming more and more willing to accept Facebook posts as evidence. Parties to a proceeding will regularly include copies of negative and damaging messages, emails, text messages and photographs received directly, or indirectly, from their former partners, friends and family members in affidavit material to support their position or rebut an allegation being made against them.
Family Law litigation raises a specific set of evidentiary concerns, particularly where such evidence relates to children’s cases. The Family Law Act has relaxed some of the rules of evidence where the welfare or safety of children is at issue, for example, if there is evidence of a representation made by a child about a matter that is relevant to their welfare of the child or another child, that evidence will likely be deemed admissible even if it is found to be against the “hearsay” rule. As a result of this exception, evidence from social media, which can be argued as being raised where there is concern for the “welfare of a child”, will more than likely be accepted as evidence, unless successfully contested.
The Court may decide that such evidence should be given little weight, and therefore it may not have an impact upon the decision to be made, however, this will entirely depend upon the facts of the particular case, the nature of the evidence and the discretion of the Judge hearing the matter.
The Court in Lackey and Mae [2013] FMCA fam 284, found that the Father and his family made offensive comments about the Court, legal representatives, expert witnesses and the Mother relating to the current proceedings on social media. As a result, it was determined that the Father had breached section 121 of the Family Law Act. The Court ordered that the Father and his family remove all relevant posts from Facebook, and restrained him, and his family, from publishing any further comments relating to the proceedings on social media and Ordered that the Australian Federal Police monitor the social medial use of the Father, and his family, for a period of two years following the hearing. The Court also ordered that if the Father, or his family, breached the Orders that they would be subject to criminal prosecution.
When you commence legal proceedings you need to ask yourself the following questions:
1. Should I post comments about the case?
We would advise against this.
2. Do I need my social media account at this time?
If yes, you must then be conscious of what you post.
3. If you continue to use your social media account during proceedings, you need to ask who do I want reading my “status updates”?
Before you post you need to consider who your audience may be and how far that audience reaches. Ask yourself “who can read my posts?”. Once your comments become part of the public arena these are available for parties to the proceedings, Judges, appointed Family Court experts and family and friends to see. You must ask yourself if you want your case decided on a badly worded comment that cannot be taken back.
4. Is your account private?
If your account is accessible to persons other than yourself material that you post, even in the “inbox” or “private message” capacity can be viewed by others and possibly distributed without your consent.
You must also remember that in the modern age a simple “Google” search can expose your social media activity to anyone who types your name and other known information into the search engine. People listed as “friends” can search for information about you on the internet and on Facebook. You should also consider that your ex-partner’s lawyers most likely know how to use Facebook and may locate problematic material on social media that can be used to your detriment.
It is therefore important that anyone who is involved in Family Law proceedings, consider what they are posting on social media, particularly in relation to their private life, social interactions and their former partner, and refrain from posting anything about the proceedings. It could be one simple post that could decide your fate in family law proceedings. So we urge you to “Think before you type”.