Platforms such as Facebook, Twitter, Instagram and Snapchat have provided society with the ability to communicate and publish information instantaneously.
With over 18 million users in Australia with social media accounts, we are spending more time than ever before liking, commenting, sharing, tweeting and snapping. But have you ever considered how these posts might impact the outcome of your family law matter?
Reliance on text messages and emails as evidence in family law disputes is nothing new and there are various cases now which indicate a willingness by the Family Court to adopt and use social media where necessary.
To avoid damaging your case with your online presence, consider the following do’s and don’ts.
1. DO: GET ADVICE
Social media and how it is used in Family Court proceedings is rising, which is why it is imperative that you receive legal advice from a Family lawyer who understands the implications social media can have on your case.
2. DO: CONSIDER WHO CAN SEE YOUR ACCOUNT AND POSTS
After a separation, you should review your social media settings and ensure your former partner cannot access your Facebook or Instagram accounts. This means both changing your passwords as well as making your profile private.
Restricting your ex from viewing your accounts should not be the only step you take, as this may not be enough. You should still be very conscious about the things you post including the posts your friends or family tag you in.
It is common for former partners to have mutual friends and connections, which in a social media context, can be problematic.
You may find out the hard way that some of your connections have more loyalty to your former partner than they do to you. For example, they may share your private messages or screen shot your drunken photos from the night you said you were unable to care for the children – your ex will certainly ‘like’ that.
3. DO: THINK BEFORE YOU CLICK
Think before you click and always proceed with caution. Litigants in the Family Court must exercise a great deal of restraint.
Ask yourself if you would want a judge to read what you have posted. If the answer is no, don’t post it.
4. DO: TAKE A LOOK AT YOUR EX’S POSTS
Reviewing your partner’s posts (particularly before they have had the chance to “clean it up”) can prove to be helpful.
You should look for anything which may go to their character or behaviour, especially if you are involved in parenting proceedings.
If you are going to take screenshots of posts, be sure to include the date and time of the post, as these details can be important.
5. DON’T: MENTION YOUR FAMILY COURT PROCEEDINGS
Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence to publish or disseminate the identity of litigants or information gathered during proceeding.
“Publication” does not only relate to newspapers, radio and television. Publishing a post on any platform including Facebook, Twitter and Instagram could fall foul of section 121.
The section is aimed at giving litigants in Family Court proceedings privacy protection and the penalties, if you are found to have breached this provision, include fines and even imprisonment for up to 12 months.
You should also never post disparaging comments about the judge, the Court or any other solicitors or experts involved in your case. In the matter of Xuarez and Vitela [2012] FAM CA 574, the father created a website and identified his Family Court proceedings. He named the parties and even went so far as to upload the photos of the lawyers and experts involved in the proceedings which he considered to be “corrupt legal professionals”.
The father was found to have been in breach of s 121 and injunctive restraint was ordered.
6. DON’T: SHOW OFF YOUR PURCHASES ON SOCIAL MEDIA
We all have a temptation to show off our overseas holidays or luxurious purchases on social media. However, your ex may use these photos as evidence that you are in a stronger financial position than you claim.
Similarly, you must be equally as cautious if you have been selling assets without your former partner’s knowledge or without providing adequate disclosure. Suddenly your posts on gumtree or Facebook market place will become evidence which can be used against you.
7. DON’T: MAKE DISPARAGING COMMENTS ABOUT YOUR EX, OR ANYONE
Ensure that your posts are always tasteful in nature as airing dirty laundry publicly is almost never going to assist.
It is not uncommon to see negative comments made about a former partner on social media annexed to affidavits in a Family Court parenting matters. These posts don’t support an argument that you are able to co-parent the children and support the other parent’s relationship with the children, which is a factor the Court will consider.
If you require advice from one of our team concerning parenting matters or any other matter arising from the breakdown of your relationship, call or email us now.