Stay clear of social media in family law

By 9 November 2022Family Law
social media in family law

Many of us have given in to the temptation to hop onto social media and voice a complaint. But when you have family law proceedings on foot, it’s best to steer clear of the socials.

Social media posts can be admitted in court

Firstly, you should be aware that posts you make on the internet can be admitted in court. This can work against you in a few ways.

If there is a parenting matter before the court, and one party is posting vitriol against the other, the judge can take that into account. It may affect the orders they make for time with each parent if the posts indicate an unwillingness to co-parent.

In Lackey & Mae [2013] FMCAfam 284, full parental responsibility was awarded to the mother in part because of the incessant vitriol levelled at her by the father on social media. Neville FM found that “the evidence makes plain that it is not in the children’s best interests that their parents have equal shared parental responsibility. Among other things, the parental relationship is nigh on unworkable. It is hostile in the extreme. The Mother should have sole parental responsibility for all of the children.”

Divisions of property can also be affected. If one party claims to have no money and no assets, but then posts about their new luxury car or a lavish holiday that they’ve gone on with a new spouse, that can be admitted as evidence. Judges take a dim view of people who are obfuscating the truth.

Moreover, it’s worth bearing in mind that no matter how you feel now, your focus should be on creating a sustainable co-parenting relationship for the future. Negative social media posts can derail your negotiations and make that more difficult to achieve.

Social media posts may breach the Family Law Act

Secondly, some social media posts may breach section 121 of the Family Law Act. This section states that:

(1)  A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)  a party to the proceedings;

(b)  a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)  a witness in the proceedings;

commits an offence.

The section is very broad. While we may think of ‘publishing’ as something done by newspapers or TV stations, it also extends to social media posts. At the same time, to ‘identify’ a party, related person or witness to the proceedings does not require you to name them. It’s enough to refer to their relationship with other identified persons, name their occupation or address.

A Facebook post updating friends on the progress of your court case, which refers to the involvement of “the kids’ Dad” is very likely to breach section 121. So, too, would an Instagram story about how family courts are biased — if it references your current court proceedings as an example and names the judge.

What remedies are available?

If you’re a party to a current court proceeding, you have the option to seek an order that stops the other side from making further publications. Typically, a judge will make orders that a post or posts should be removed, or that the parties must refrain from making such posts.

In Longford & Byrne [2015] FCCA 2504, the father in family court proceedings posted photographs of his ex and his children with captions such as ‘My name is Ms Longford. I’m a child thief’ and ‘This is Ms Longford and my two girls they live behind [an identifiable location].’

Orders were granted preventing the father from posting any further photographs, comments or references to the mother or children, and requiring the father to immediately remove any posts that were already made.

If the posts are extremely derogatory, the presiding judge may refer the matter on to the AFP, which will consider if it is appropriate to impose a heavier penalty, or even imprisonment.

Going to court can be stressful and costly. In many cases, simply instructing us to contact the other side and warn them against making further posts will fix the problem. If they do it again, it strengthens your case to obtain the order you want.

Don’t assume that what you post is private

You may believe that your social media posts are only viewable by a select group of people. However, it is very common for those posts to be shared outside of that group. When you’re in the middle of court proceedings, the safest path is to assume that everything you post will end up in front of a judge.

For more information on how social media can affect your family law proceedings, get in touch with our Family lawyers Toowoomba for advice or call us at 1300 068 736.

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