Family Law and Social Media Postings

Divorce is one of the most onerous and traumatic procedures in our lives. As a result, it is common to see cases in which a party to a divorce proceeding jumps on social media and talks about their disappointment or anger, which ultimately gives rise to regret about the posting.

There is a significant increase in the number of cases in which posts on social media such as Instagram, Facebook and Twitter are used as evidence, especially for determining eligibility or entitlements as a parent in divorce or parenting proceedings. With this in mind, circumstances parties to the proceeding need to take into account are set out below.     

1. Prevent derogatory comments or messages (including email or SMS) - it may give the court a negative impression that a party lacks responsibilities as a parent.     
2. Be cautious about posting or posting by third party any photo which may deteriorate their reputation – it may trigger a suspicion as to eligibility as a parent.     
3. Bear in mind that the other party or third party may use your post on social media as evidence.     
4. Do not post any comment on social media when you are emotional.               
5. Consider any impact on your children when they read your post.     
6. Do not publish your private information.     
7. Do not publish any account of any proceedings on social media – it is an offence under section 121 of the Family Law Act 1975 (Cth).

The example below illustrates how a post on social media can be used in court proceedings. 

1. Husband A sent a message to his 10 year-old son stating, “I want to separate you from my incompetent wife B” after taking his child from Wife B without her consent. A few years later, as the proceeding was commenced, Husband A posted the comment ‘What a **** joke!’ and published contents relevant to the proceeding on his Facebook page. Such posts were used as evidence to support his incapability of taking care of children. 
2. Mr C posted several defamatory statements about the court on his Facebook account such as “Worst family law court system - who imprisons a person due to meeting with his daughter?” As a result, such posts were presented before the court as evidence proving lack of responsibility as a parent.
3. A Facebook post that was posted by D who took a picture of a prisoner during a supervised visit was used to prove that she is a thoughtless mother in her proceeding.