LawTalk Blog

Is your social media account discoverable in your Family Court proceedings?

Family Law and social media

In order for a Family Law Court to make a fair and equitable determination of any matter, it needs all relevant evidence to be put before it. In order to ensure this is done, the Rules of Court provide that all parties to proceedings must make full and frank disclosure. This is referred to as the ‘duty to disclosure’.  

Under this duty of disclosure parties are required to provide to the other, all information relevant to any issue in the case. To be relevant in legal proceedings the information must be able to rationally affect the assessment of a fact in issue in the proceedings. This includes information in the form of documents such as those recorded on paper but also those stored by other means, such as computer storage. The duty of disclosure even extends to information and documents that the other party does not know about.

The type of disclosure required in parenting cases and property settlement cases will vary due to the different issues being considered in both cases and the difference in the application of the rules relating to evidence in either case. Despite those differences, the principle behind the duty of disclosure remains the same; that is, it must be full and frank and is ongoing.

In financial cases parties must disclose all information relevant to their financial circumstances. This includes disclosing documents which show all sources of their earnings, interest, income, property and other financial resources. Parties must also disclose information about any property that has been disposed of by them within the 12 months prior to separation or since separation.  

In children’s matters the information required by the Court is to assist in determining what arrangements are in the best interests of the child. This can cover the care and welfare of a child in each parent’s care and their capacity to parent that child, both emotionally and physically. The types of documentation that would be produced in these cases generally includes school reports, documentation regarding financial support of a child, photographs, drawings done by the child, medical records of the child or parents and any letters written by the child.

Therefore it may be argued that information posted on social media could be discoverable if it is relevant to an issue in the case.

In practice, parties are not ordinarily required to disclose their social media accounts to one another. That is not to say that this will not eventuate in the future given the ever increasing impact of social media on the law in all areas, not just family law. If information from your social media account is relevant, such as photos of you inappropriately parenting your child, then it may well be argued to be discoverable to the other side.  If so you will be required to provide it.

It is important to note that although parties are not being required to disclose their social media account information at this point in time, information from your social media account can still be presented to the Court as evidence. It is extremely common nowadays for parties to obtain information from the other party’s social media account and present that information as evidence to support their case.

This calls for a great need for all parties to proceedings to be aware that their online actions can have real life consequences. This commonly occurs in matters regarding the care and living arrangements of children but does and has occurred in property matters.

In order to deal with this issue the family lawyers at Andersons Solicitors advise their clients at the commencement of each matter about securing online accounts and the potential damage that could be caused to their case if they publish inappropriate content on their social media account and it is obtained and presented to the Court by the other party.

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Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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