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13 October 2015 Social media in family law proceedings - how is it used?

By Annette Wilson, Partner and Adam Zwi, Solicitor

In Brief

Social media goes far beyond cat videos (although it might not always seem like it). We use it to broadcast our joys, fears, grudges, homes and daily routines. We use it to communicate with each other, both publically and privately. A recent paper published in the Family Law Review shows how much of that content is used in family law proceedings. In this article, we have summarised some of the main findings of this paper, and provided some comments about what they mean for litigants.


Methodology


The authors analysed 136 cases in first instance family law proceedings between mid-2009 and mid-2014. They searched for references to Facebook, Twitter, Youtube, Linkedin and Myspace.

Of all the social media evidence offered in the cases, 97% came from Facebook. Evidence of private Facebook messages were weighted above  public status updates or comments, and text  was weighted above photos. Furthermore, 79% of social media evidence was offered in parenting proceedings – leaving only 21% in property, interlocutory and child abduction proceedings. 

Much of the study related to the different purposes for which social media evidence is offered.

  1. Suitability: In most cases, social media is offered to provide evidence of a party's suitability to competently parent. Usually, it is offered for a negative purpose (i.e. to show that the other party is not competent to parent). People who used social media to make denigrating or derogatory comments about the other party's ability to parent tended to shoot themselves in the foot – this evidence was frequently used to show that the they themselves were unsuitable to parent. In other cases, social media was used to show that a party was engaging in drug or alcohol abuse, or to support an argument that the other party's home is unsuitable for children.
  2. Intention/knowledge: Social media was often used to show that a party intended to relocate the child/children, or that the other party had provided consent to such relocation.
  3. Relationship: in In three cases, social media evidence was offered to show that a parent had a good relationship with a  child. In one case, a father offered evidence that he and his son were 'Facebook friends' (the judge commented 'that struck me as a strange definition of a good relationship between father and son'.The authors suggest that in the future, social media evidence might be useful in shedding light on the strength of a relationship by showing the frequency and nature of contact between individuals.
  4. Violence: Social media has been adduced to provide evidence of family violence or threats by an ex-partner (or their family).
  5. Children: In some cases social media was adduced in relation to the welfare of the child – for instance, where a child's Facebook post suggested that he/she considered self-harm, or that he/she missed his/her school friends.
  6. Credibility: Social media evidence was adduced to cast doubt on the credibility of a witness or party – for instance, by revealing an alias or supporting an alibi. In one case, a father who said he had not gambled for some time posted a Facebook picture of a pile of casino chips with the caption 'Robbing Star Casino 2011'.   
What does this mean for you?
 

If you are involved in family law proceedings, it is important to know that evidence of your social media activity can be admissible, and may be weighted highly in certain circumstances.  In some cases, the other party's social media may support your application. For instance, if your ex makes denigrating or derogatory remarks about your ability to look after the children, this might be admissible as evidence of their unsuitability to parent. Conversely, if you have used social media negatively – for instance, to denigrate your ex (or their new partner) - tell your lawyer so that they can prepare rebuttal arguments (for instance, challenging the relevance of that evidence). Finally, stick to sharing cat videos – take preventative measures to avoid any issues arising in the first place!

For further information, please contact:

 

Annette Wilson, Partner  |  Phone: +61 2 9233 5544  |  Email: amw@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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