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Social Media and Family Law

July 25, 2023

Social Media and Family Law

Whilst social media is a fantastic tool for connection and support, particularly when people are going through difficult times, posting about your separation can be very problematic.


Nowadays, rarely do we come across a matter in Court that does not involve screenshots of Facebook and Instagram posts, copies of messages exchanged through apps such as Messenger or WhatsApp or videos of posts on Snapchat which the user assumed would have disappeared in five seconds. Whilst on the surface these kinds of interactions may seem harmless, they are often used in family law as evidence of things such as drug and alcohol use, mental ill-health or extravagant spending despite claims in court of financial hardship which can often impact decisions about parental responsibility, your ability to co-parent and facilitate a relationship between your children and the other parent, spousal maintenance and whether or not a de facto relationship existed.


The best way to protect yourself against this is to be mindful of what you’re posting in the first place – even if you think you have blocked your ex and any allies they may have! Although posts can be deleted after the event, you never know who has taken a cheeky screenshot “just in case”. Furthermore, the act of deleting a post itself can be considered tampering with evidence and/or be interpreted as a sign of guilt.


If you are involved in family law proceedings, Section 121 of the Family Law Act makes it an offence to publish information about the proceedings that enables a party or a witness to be identified. This includes information such as names, addresses and the like but also descriptions of people, their employment, their relationships with others and property they own or are associated with.


Publishing information about family law proceedings (whether online, on the radio or TV or by other means) is a serious offence and carries a penalty of up to 12 months imprisonment. Importantly, it must be noted that ignorance of the existence of the law against publishing information is not a defence and people can be charged even if they believed they were acting in good faith.


Recent examples of matters which have been referred to the Australian Federal Police for prosecution include:

  1. In a matter decided in 2021, a father had a camera man attend various court events with him, including his psychiatric assessment, recorded the family report interviews and later aired the “documentary” he had commissioned about the matter at a public cinema event. The father had also made concerning posts on social media, including a picture of him holding a photograph of the children, copies of text messages the children had sent to him and participated in a podcast where he discussed the proceedings and the opinions of the experts involved in the matter.  The Court found that the father demonstrated a complete lack of insight into the damaging impact on the children of being exposed to parental conflict and an inability to prioritise the best interests of the children over his war against their mother, considered the father’s actions to be a serious breach of Section 121 and referred the father for criminal prosecution. In terms of the parenting matter, the mother was awarded sole parental responsibility and the father as restrained from having any contact or communication with the children unless initiated by them; and
  2. In 2020, a father’s new wife (who was not a party to the proceedings herself) was referred to the AFP after uploading videos of one of the children saying negative things about their mother and step-father in an attempt to entice people to donate money to fund the father’s legal costs. The wife also sent complaints to a number of people and media outlets including hers, the father’s and the children’s full names and dates of birth. In this matter, the Court found that the toxic nature of the parents’ relationship (evidenced in part by the new wife’s conduct) would make joint parental responsibility impossible.


If you want further information about what can and cannot be used against you as evidence in Court or if you think your ex has breached Section 121, contact Umbrella Family Law today via phone (03) 9279 6800 or email at theteam@umbrellafamilylaw.com.au.

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