Social media has become a daily part of our lives. Our online profile can include information, thoughts and photographs about who we are, the events of our lives, where we are travelling and those we love. However, in the context of a marital breakdown and parenting disputes, there is often the temptation to communicate, or to vent on our social media. This is why you shouldn’t:
- Subject to the overriding test of relevance, what you publish online can be used as evidence in your Family Court proceedings.
- You should keep in mind that it is not only what you author on your online profile that can be used. ‘Sharing’, ‘liking’, ‘re-posting or re-tweeting’ or allowing third parties to publish to your online profile, become part of your online profile and can similarly be used as evidence.
- What your family or cyber-friends publish online in support of you or against an opposing party, witness, lawyer or Court can be used as evidence.
- Pursuant to Section 121 of the Family Law Act, it is an offence to publish any information which would identify a party, a person associated with a party, or a witness in any proceedings. This extends to publishing information which would allow an ordinary member of the public to ascertain the identity of a person involved in the proceedings. A breach of Section 121 is an indictable offence, which if found guilty, carries a penalty of a fine or imprisonment.
In the matter of Lackey & Mae  FMCAfam 284, the father and his family made a number of derogatory comments online not only about the Mother, but also of the Independent Children’s Lawyer and the Court. The father and his family had also breached Section 121 of the Family Law Act by publishing details of the proceedings.
The posts were found to be a ‘form of cyber-bullying, cowardly, derogatory, cruel and nasty’ by the presiding Magistrate. Quite apart from destroying the father and his families’ credibility in that matter, the father’s online profile was ordered to be monitored for a period of 2 years to ensure that he or his family did not engage in conduct of that kind again.
Tips on how to use social media during your family law matter
You should never use social media to disclose any aspect of the proceedings in which you are involved, the identity of the persons involved or any information which would be sufficient for the public to ascertain the identity of a person involved in your proceedings.
It is important to remember that removing or deleting your online profile or previous posts doesn’t work; social media leaves a digital footprint.
Notwithstanding the various privacy settings that you may have on your online profile, you should assume the information is public.
The best advice we can give is to not post anything on social media that concerns your family, your estranged partner or your family law matter. By doing so, you are simply providing evidence which could affect your family law matter in a negative way.
We quote Magistrate Melville (as he then was) who said it best in Lackey & Mae: “Social media is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore (for invariably incriminating) evidence to be used in litigation”.
If you would like more information about social media and family law, please contact our office on 4929 3995