Social media and family law – Just don’t do it!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life. Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones. But what happens when people going through a relationship breakdown take to social media? Usually little good comes of it, and sometimes quite a lot of bad can result.

Social media as evidence

Many people separate and are able to resolve parenting and financial issues amicably. We actively encourage this here at West Family Lawyers and work with clients to achieve a negotiated settlement. Sometimes however, a family law dispute can be heated, unpleasant and protracted before eventually being resolved – either by consent or by the Family Court. Regardless, we advise all our clients to be careful using social media. Sometimes, the other partner will become aware of (or actively search for) unhelpful or vitriolic comments on social media. Such comments inevitably end up attached to an Affidavit or canvassed in correspondence. For example, if parties are involved in a financial dispute and one person might be claiming that they cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of the latest holiday or new car.

Similarly, when involved in a parenting dispute, it might be best for parties not to post on Facebook about what a “deadbeat” the other parent is or indeed, photos of a “big night out” surrounded by empty bottles of alcohol. The reality is that what may have been acceptable, and even the norm during the relationship, rapidly becomes unacceptable post separation.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another. So, it is unlikely to be helpful if the Court is shown evidence of abusive or derogatory posts one parent has made about the other on social media or indeed, posts asking for people’s views on the other parent’s alleged behaviour.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. We advise family law clients not to rely upon that and simply refrain from posting anything at all about their former partner and any disputes. In short; if in doubt, leave it out.

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has unfortunately not prevented some people involved in family law proceedings from using social media as a weapon against their former partner by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

Conclusion

Unless parties can find a way to privately use electronic communication to help co-parent their children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

If you or someone you know wants more information or needs help or advice on family law issues, please contact us on (08) 9380 9111 or email mark@westfamilylawyers.com.au