It has never been easier for people to send their private thoughts and feelings out into the public arena. Increasingly, parties involved in disputes over property settlements and the care of children are turning to social media to vent their frustrations or to attack the other party. You may come across a particularly nasty post or message from an ex, and have no idea what to do about it- or even if you can do anything about it!
An increasingly large amount of social media material is making its way before the Family Court of Australia, with Neville J of the Family Court of Australia remarking in the matter of Lackey v Mae:
“It never ceases to astound me how many litigants in [the Family Court of Australia] publish material through social media such as Facebook without consideration as to how poorly it might reflect upon them if adduced in evidence”.
As such, the Family Court has shown a tendency to allow such content to be tendered into evidence in Family Law proceedings. But what is ‘evidence,’ and why is social media often deemed to fall within the definition?
What is “Evidence”?
The law of evidence is highly complicated; however, simply put, evidence is the material that can be brought before a court to prove a matter.
In Family Law proceedings, evidence is typically presented as “documents” to a judicial officer. These are usually by way of Affidavits, which is a sworn statement from a party or other person. However, other forms of documents are often tendered as annexures, or in addition, to Affidavits.
Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including:
- anything on which there is writing; and
- anything from which sounds, images or writings can be reproduced with or without the aid of anything else.
Under this definition, content from social media such as Facebook, Instagram, Snapchat, LinkedIn, Twitter, and WhatsApp could be regarded as a document, and, as such, possibly admissible.
However, three further factors are considered to determine whether a document is admissible for the purpose of providing evidence. These are:
- Judicial Discretion; and
- Weight given to the evidence.
Determining the relevance of Evidence
Firstly, a Court must consider whether the social media content relates to a fact or matter in the case. Generally speaking, evidence that is deemed relevant will relate to an issue in dispute, the facts of the case, or it will support your claim.
Some examples of social media posts that have been held to be relevant by a Court include:
- Content that refers to the Court proceedings, the other party or even the Court itself;
- Private messages from a party containing threats, abuse or derogatory comments;
- Photographs displaying a parties’ behaviour, such as excessive drinking, drug use or other non-social behaviour.
The examples mentioned above have been held as relevant on some of the following grounds:
- To call into question a parent’s capacity to care for a child or children;
- To show the level of risk posed by a parent to a child’s welfare;
- Wastage of joint assets; and
- A person’s attitude towards proceedings or indeed their character and credibility
Determining the admissibility and weight of Evidence
Under Section 69ZT(1) of the Family Law Act 1975 (Cth), a judge in a Family Law matter can exercise broad discretion to allow social media posts and excerpts to be admitted. While posts or other material from social media might be considered hearsay or opinion in other matters, the Family Court has previously shown it is willing to admit such evidence as they can have value in proceedings.
That said, the Family Court is typically quite reluctant to attribute significant weight to social media evidence. This means that while such evidence may be admitted, a judge will be cautious in relying heavily on that evidence when making a decision or determination.
In 2015, a study published in the Family Law Review journal found that 82% of social media evidence was accepted in proceedings before the Family Court. However, only 36% of the accepted content was attributed any significant weight by the presiding judge. Heavy weight was particularly given to evidence that proved a party was deliberately delaying proceedings or misleading the court.
Conclusions and Advice
The best advice that can be provided in these matters is simply not posting or sharing anything to do with your matter and completely avoid any issues arising.
It would be wise to check your privacy settings on your accounts to ensure they cannot be accessed by your former spouse or any other person. If you used a joint account, it is best to either delete the account or cease using the account entirely.
If you feel the need to “debrief” and speak to some of your frustrations or feelings, it is good to write them down and send them to your lawyer first. Your lawyer can proofread the same, and incorporate them into correspondence or court documents without risking damage to your case.
If you see a post or receive a message that may be relevant to your matter, it is best to simply “screenshot” the content and save it. Do not respond or be baited into an argument.
It is also worth noting that under s243 of the Family Law Act 1975 (Cth), a person can be found guilty of an offence if they publish details of proceedings, including identifying the parties involved. The maximum penalty is imprisonment for one year or a large fine.
If you are undergoing a separation or divorce and need legal counsel, our specialised Family Law Team are here to assist you in the process.