If you’re thinking about a divorce, it may also be time to think about deleting your social media accounts. It’s tempting to use social media as a place to vent about your ex or make angry accusations. But be warned: social media posts are now being used as evidence in Family Law cases, particularly in parenting cases.
Uncensored and unvetted social media posts have the risk of conveying unfounded allegations which can be misrepresented as fact. Just one lie to a social media audience could undermine everything you argue before the court. Domestic violence abuse threats posted via social media sites can also be used as evidence in court as could any posts such as one parent saying they would ensure their ex-partner never saw their children again.
Cases In Which Social Media Has Been Used in Court
In an Australian reported case a mother’s Facebook posts were used as evidence to prove her intention to deliberately “run up” the father’s legal costs. As a result a costs order was made against her.
In Lackey v Mae, Neville J described the use of social media evidence for the purpose of denigrating another party as “an unfortunate and increasing feature of modern litigation”. Increasingly, parties are offering evidence by way of public and private Facebook posts that intends to demonstrate the character of the person who posted.
In Kester v Schultz, the mother adduced evidence of a public Facebook status posted by the father’s new partner, “who wants to go on a killing spree, Mr Schultz’s ex is pissing me off” in reference to the mother.
In Longsdorf v Granger, the father attempted to assert evidence from Facebook of a relationship between the mother and a new partner. Despite the mother’s assertion that “what is on Facebook is not real”, Harman FM found the contrary. He made the comment that the cross-examination of the mother in relation to the Facebook comments “caused more embarrassment and a look of dread and being caught out than I have ever seen on a witness’ face”.
The wide judicial discretion in family law decision-making makes predicting the admissibility of social media evidence very difficult. In a recent study by Blakeley, Easteal, Fitch and Kennedy, evidence from social media was accepted in 82 percent of cases. Of the cases in which social media evidence was accepted for the purpose for which it was offered, the evidence in 36 percent was weighted highly by the judicial officer. There was neither a significant difference in weighting between evidence adduced by self-represented parties and parties with legal representation, nor where the evidence was adduced to positively, negatively or neutrally prove a fact in issue. The study did note that judicial officers appear to give strong weight to evidence that “is indicative of a party endeavouring to mislead the court”.
The Family Law Act
The Family Law Act restricts how court proceedings are recorded and what information can be published or broadcast, including on social networking sites.
Anyone who comes into details of Family Court proceedings are prohibited from publishing anything that identifies the parties, the children, witnesses and anyone else who is related to or associated with a party to the proceedings. Such publication is an offence which is punishable, upon a conviction, by imprisonment up to a year.
Section 121 of the Family Law Act 1975 makes it an offence to publish proceedings or images that identify people involved in family law proceedings unless a Publication Order has been made or another s 121 exemption applies.
Section 97 of the Family Law Act provides that all proceedings are held in open court unless the Court decides otherwise.
Penalties of up to one-year imprisonment can apply for breaches of s 121.
Even Private Information May Not Be Private
Even what we think is private can be acquired by the law in certain circumstances. According to the Australian Federal Police, everything you type in a text or an email can be accessed by authorities if your phone company or ISP has kept the records. The AFP requires the approval of a judge or a telecommunications warrant to access the records and many providers keep records from when you started the account. What we think is private, may not be so.
Dating sites. Creating a profile before your divorce is finalised may land you in hot water – especially depending on how you present yourself.
Email and text messages can be used in court. Something that one spouse reveals about their financial situation may be used as evidence that they’re not being forthcoming about their true financial position.
Finances can be revealed through social media posting, even though someone doesn’t believe they’re being explicit.
Child custody arrangements can be finalised based on social media posting. If one party says that they are looking for a job, but their social media posts suggest that they are playing video games all day, then a judge is more likely to view that spouse harshly. One parent may have photos posted online that show they were drunk when they were supposed to be looking after children.
Other evidence that may be used in court during family law proceedings include emails, text messages and any other form of modern communications system.