News & Insights

It is rare these days for a person not to have some kind of online presence. With the rise in prevalence of platforms such as Facebook, Instagram, Twitter and LinkedIn, there are many opportunities for people to voice their opinions in real time, whether those opinions are good, bad or otherwise.

We are increasingly seeing parties who are participating in the family law process after a separation finding their online musings coming back to haunt them. Due to the “behind closed doors” nature of many of the issues in family law matters, the Family Law legislation takes a more relaxed view of the usual evidentiary requirements for the type of material which can be included in court documents. The use of text messages and emails as evidence in family law proceedings is therefore not a new concept; however we are seeing more often the use of social media posts to establish the truthfulness or veracity of a party’s claims or intentions and these posts could negatively affect the outcome of negotiations or litigation.

It is not only a person’s own social media posts which can get them in hot water, but the posts of third parties who “tag” them and indirectly implicate them in situations or conversations which will come under the scrutiny of the Family Court.

Evidence from social media can have relevance to a wide range of issues in a family law dispute including those relating to parenting matters and child support, spousal maintenance and financial disputes. For example, a party posting photos of an extravagant trip or purchase may find their application for spousal maintenance fails. Another example is a party who is prohibited from consuming alcohol prior to spending time with a child of the relationship after appearing in photos from a nightclub or bar. That Twitter outburst or angry Facebook status could also be used to attack a party’s character and their ability to effectively co-parent with their ex-partner.

Don’t make the mistake of thinking you can erase your past mistakes or bad decisions by deleting the offending post. In addition to being able to be seen and “screenshotted” by all of your loyal followers and your not so loyal ex-partner, deletion of the offending posts or accounts could be considered to be destroying evidence.

Three important tips:

• Take a step back from social media when you are going through a separation and emotions are running high.
• Ask friends or family to resist posting content which could incriminate you.
• If you need to have an active online presence due to other commitments, consider changing your privacy settings so your activities are not so visible.

Ultimately the words of wisdom to live by are that if you would not want a Judge to read it, then it’s probably best not to post it.

For further information or advice regarding your family law matter please contact our Family and Relationship Law team.

This article was written by Kate Barlow, Associate – Private Clients | Family Law.