Be Careful What You Post

By 30 November 2017Family Law

What you need to know about SOCIAL MEDIA AND FAMILY LAW

Social media has changed the way we communicate with each other.  Instead of having an audience of one or two through telephone or face to face communication, social media allows us to have an audience of potentially millions.

Social media is not limited to Facebook or Twitter.  It extends to all other social media platforms including blogs, websites, Instagram, LinkedIn, Snapchat, podcasts and social dating applications.

The increase in social media usage has impacted on family law in two fundamental respects:

  1. Firstly, there is more scope for what people publish on social media to be used as evidence against a party in family law proceedings;
  2. Secondly, social media users are at risk of breaching Section 121 of the Family Law Act 1975.

Social Media being used as evidence in family law proceedings

Through social media, it is now easier than ever to gather evidence which may be used against a party in family law proceedings.  Examples of the sort of posts that might be used against a party in family law proceedings are:

  • Posts containing references to drug use, hard partying or other anti-social behaviour that might impact on a court’s decision in a parenting case about what is in the best interests of the child;
  • Posts which showcase either inappropriate language or extreme views on certain issues, which again, may influence a judge’s decision in a parenting case;
  • Posts which suggest a party has more assets or income than otherwise disclosed may be relevant in either property and/or child support proceedings.

This is not to say that every post, blog, comment or photo that a person publishes on social media will be admissible in family law proceedings as the rules of evidence limit what can be used in evidence and what cannot be used in evidence.  However, it should be noted that the rules of evidence tend to be more ‘relaxed’ in parenting proceedings.  As such, it would be wise to assume that what you post etc may end up being used as evidence in a family law proceedings and may be detrimental to your case.  Even if the actual post, comments etc cannot be used in evidence, it may arm the other party with useful information which will help that party to run their case against you!

Section 121 of the Family Law Act

Section 121 of the Family Law Act prohibits the publication of any account of family law proceedings which identifies a participant to the proceedings.

A breach of Section 121 is a criminal offence, punishable by imprisonment for up to 1 year.  It is important to note that Section 121 applies to everyone, not just those who are parties to family law proceedings.

There are 3 elements to the offence:

  1. Publication;
  2. An account; and
  3. identification

Publication:

You may think, “I do not work in television, radio or newspapers so there is no risk that I will breach Section 121 of the Family Law Act”.  Wrong.  In the world of social media, we all have the power to spread information to a wide group of people.  This means that while a conversation between a party to a family law proceeding and a close personal friend would not constitute a breach of Section 121, a post on Facebook, comment on a website or tweet could well as truly fall foul of section 121.  In Longford & Byrne [2015] FCCA 2504, a party to a family law proceeding was held to have breached section 121 after he had posted personal information about the other party to the proceedings and their children on Facebook.

Account:

What an ‘account’ is for the purpose of section 121 is not defined in the Family Law Act however in Hinchcliffe v Commission of Australian Federal Police [2001] FCA 1747 an ‘account’ was said to be “a narrative, description, retelling or recital of such proceedings.”  Applying this, a post on Facebook describing what happened at your most recent court event, would probably breach section 121.

Identification:

To breach section 121 of the Family Law Act, the account which is published must identify a party to the proceedings, a witness in the proceedings or a person who is related to or associated with a party to the proceedings or who is otherwise connected to the proceedings.

Summary

It is not always easy to work out whether what you, or what someone else has done, amounts to a breach of section 121 of the Family Law Act.  Similarly, it is not always clear whether a post or comment made on social media can be used in evidence in a family law proceeding.  My advice in dealing with this curly issue is simple.  If in doubt, assume that the information you are about to post will be used against you and/or will breach section 121 of the Family Law Act.  Avoid the temptation to vent your frustrations or otherwise share with the world the ins and outs of your (or someone else’s) family law matter and just don’t do it.