Facebook In Family Law Matters

The use of social media platforms such as Facebook, Twitter, Instagram and LinkedIn has created traps and opportunities in family law proceedings. Courts have been increasingly willing to accept social media content as evidence. This includes negative and damaging posts, text messages, photos , videos and emails. Such content can heavily influence a court’s decision making when it is considering family law orders such as those for parenting, child support and spousal maintenance. It can also leave a party open to prosecution for identifying a person involved in a family law matter.

Facebook content as evidence

Parties in a family law matter often turn to social media to air grievances and frustrations. However, a simple post or comment can have a serious impact on the outcome of a matter.

The Family Law Act 1975 relaxes some rules of evidence in order to determine what is in the best interests of the child, its paramount consideration. This means evidence that would normally fall foul of the “hearsay” rule (which prevents a person from giving evidence about something another person has told them) can be admissible. If evidence from social media goes to the welfare of a child, it will likely be accepted as evidence.

Circumstances where social media evidence may be used include where:

• the conduct of parties is an issue. e.g. there may be derogatory comments about the other party or about a child;
• the child is at risk of neglect. e.g. there may be photographs of parents behaving irresponsibly;
• the financial situation of a party is in question. e.g. a party claiming financial hardship or not meeting spousal maintenance or child support payments may have posted photos of expensive holidays or assets;
• use of illicit drugs is suspected;
• there are threats or admissions of violence;
• a party’s employment history is in question. e.g. a LinkedIn account may show evidence of employment which has not been disclosed;
• a de facto relationship exists where a party has claimed one does not.

Publication of proceedings

A party “venting” on Facebook or a similar forum can leave the party open to prosecution under Section 121 of the Act. This section makes ii an offence to publish information which identifies parties to family law proceedings.

Section 121(3) states a person will be identified if the account of proceedings contains any particulars of the person’s:

• name, title, pseudonym or alias;
• home or work address;
• physical appearance or dress style;
• job, occupation, official or honorary position;
• relationship with identified relatives, friends, or business or official associates;
• recreational, political, philosophical or religious beliefs;
• real or personal property.

The section also prohibits identification of a person via use of their picture or their voice.

Family law judges do not have authority to deal with such breaches, so breaches are referred to the Australian Federal Police (AFP) for investigation. If the AFP believes it has enough evidence for a prosecution, it must have written consent from the Director of Public Prosecutions before it can commence proceedings.

Lackey and Mae [2013]

This case is an excellent example of how family law and social media interact.

The father and his family made derogatory comments on social media about the court, the Independent Children’s Lawyer, expert witnesses and the mother of his children. On Facebook, the mother was characterised as a “liar, manipulator, dad hater, child neglecter, child abuser and stalker”. The father also published the mother’s photo and personal details. He referred to the children as “young prisoners of war, the mother as their cruel dictator and her home as the enemy compound”. His new partner posted on Facebook: “who wants to go on a killing spree, Mr Schultz’s ex is pissing me off” in reference to the mother.

Judge Warwick Neville stated that social media was an “unfortunate and increasing feature of modern litigation”. He went further to state:

“It is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore for (invariably incriminating) ‘evidence’ to be used in litigation. As a weapon, it has particularly insidious features. Unfortunately, in the context of this matter, ‘netiquette’ was not on display, and in fact, it could only be a nothing more than a euphemism for outlandish electronically-fomented conduct.”

The court ruled the mother have sole parental responsibility for the couple’s four children and that the children live with her. The father was granted supervised contact with three of the four children once a fortnight.

The court found the father had breached Section 121 of the Act and ordered that he and his family remove all Facebook references to the court proceedings and refrain from publishing anything further about the proceedings. The AFP was asked to monitor the social media activity of the father and his family for two years to ensure compliance with the order.

For advice or representation in any legal matter, please contact Armstrong Legal.