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Social Media and the Duty of Disclosure

When a relationship ends, there is often a need for property to be divided between the parties. When the Federal and Family Court of Australia (FCFCA) is asked to decide how best to finalise the financial arrangements between parties, it must have all relevant information about the parties’ financial circumstances. Each party to a family law proceeding must provide the other parties and the court with full and frank disclosure of all information which may be relevant to any issue before the court. This includes all documents which are in their possession or control. In recent years, it has become necessary and routine in family law matters to include disclosure of any relevant material from social media. This may be material involving one party or communications between the parties. This article deals with social media and the duty of disclosure.  

Pre-action procedures and the duty of disclosure

As part of the pre-action procedures of the court, the parties to a family law matter are required to make a genuine attempt to resolve the issues before filing an application for orders. The procedures for disclosure are outlined in Schedule 1 of the Family Law Rules. They include the duty to provide disclosure of relevant documents as well as to explore settlement options and participate in family law dispute resolution. There are certain exceptions where parties do not have to follow these procedures.

In a financial case, the court considers what documents are necessary for parties to provide. This may include tax returns, tax assessment notices, superannuation statements, documents evidencing income such as pay slips, bank statements for the last twelve months and documents about property which has been disposed of in the year prior to the separation or since the separation.

Social media and disclosure

Social media are electronic communications on websites and through online applications, which allow users to form online communities to share information, messages, photos and videos. Material posted by a party on social media is in the party’s possession or control and would fall within the broad definition of “document” under Commonwealth and Western Australian Evidence Act for the purposes of family law proceedings anywhere in Australia. However, it is important to remember that it is only the material from social media that is relevant to the proceedings that must be disclosed. Parties are not required to provide access to their social media accounts to other parties.

Prejudicial material from social media

Parties seeking property orders after separation are usually advised to exercise care when posting material on social media as such posts may adversely affect their case. An example would be posts relating to how money has been used since the separation. 

However, relevant material may already have been posted online before the parties separated or before proceedings began. If that is the case, the material will have to be disclosed if it is relevant to the proceedings. 

The other party may already have access to the material because they have been in communication with their ex-partner and there are no issues in accessing it. In some cases, a party may have access to material that was posted online posted by the other party simply because they know their password. However, parties should not obtain relevant material directly from each other’s social media accounts. It is essential that parties to family law proceedings do not act in any way which may be viewed as improper. Parties should always go through the proper channels when obtaining disclosure.

Unauthorised access

Misappropriating information from the other party’s social media accounts may also have criminal consequences. Commonwealth offences exist relating to the unauthorised access of computer information. These offences may be committed if a party to family law proceedings obtains material from social media accounts without the other party’s consent.

Discretion to admit evidence improperly obtained

Where material has been obtained illegally the court has a discretion as to whether to admit it as evidence. The existence of this discretion was confirmed in relation to family law in the 1978 decision of the High Court of Australia of Miller v Miller. When exercising this discretion, the court must weigh up the evidence’s value in assisting the court to determine the issues against the manner in which the evidence was obtained and the need to discourage future parties from obtaining evidence in an improper manner.

In conclusion, the material available from other parties’ social media accounts can be very valuable and relevant to family law issues. When this is the case, it becomes necessary to provide disclosure of this material to other parties in accordance with the duty to disclose. It is important to obtain legal advice from a family lawyer as to what social media material must be disclosed in any particular matter.

If you require legal advice or representation in relation to social media and the duty of disclosure or in any other legal matter, please contact Armstrong Legal.  

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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