By Briana Kotzapavlidis

9 August 2017

Social media is being used as evidence in Family Law cases, particularly in parenting cases with increasing frequency. The use of social media as evidence is particularly prevalent in high conflict cases.

Some judges have commented, “We’re not running a Facebook Court”, “This is not reality TV. This is real life and the best interest of the child are paramount[i], and “I really do not care what people post on their own Facebooks (sic), to be frank[ii], indicating that the Court would be likely to have little, if any regard, for what parties post on social media.

However, there is a significant (and increasing) number of cases in which social media has been adduced as evidence and successfully relied upon in parenting cases. For example, in one case in which a mother denied that she had re-partnered, her Facebook relationship status (“engaged”) and posts about her “fiancé” (endorsed with the mother’s “thumbs-up” symbol) were relied upon as evidence[iii]. The mother asserted that it was all a joke but in cross-examination, when presented with her Facebook post in which she wrote, “whatever looks better for me in Court”, the mother conceded that it was probably true that she would say things to make her case look better.

Facebook and Twitter posts have also been used in parenting cases about:-

  • Parenting responsibility and care arrangements; where a father’s post (although taken down after 12 minutes when he realised “the error of his ways”) was admitted as evidence which was relevant to his attitude toward the mother and what the mother asserted was the father’s “emotional immaturity”[iv].

 

  • Specific orders, including a restraint against the mother allowing the children referring to her new partner as “dad” or “daddy”. In that case, a large volume of Facebook entries (both by the mother and her new partner) were adduced as evidence. Noting that posts by the mother’s partner were “appalling” and “threatening”, the Court took a particularly dim view of “the offensive nature of (the mother’s) stupid Facebook posts”, which the Court found demonstrated the mother’s immaturity and lack of emotional self control[v];

 

  • Relocation, where an exchange on Facebook was used as evidence between the parties that there was agreement between them that one parent could relocate with the child[vi];

 

  • Contravention; where a posted photograph of a parent and child at the beach was used as evidence that the child’s time with the parent did not take place at the Court ordered location and with a supervisor present[vii];

 

  • Costs; where a mother’s Facebook posts were held to prove her intention to deliberately, by her conduct, “run up” the father’s legal costs and as a result a costs order was made against her[viii];

 

Social media, as well as other forms of electronic communication including FaceTime, Skype, Whats App, text and instant messaging, is often used successfully by parents as an efficient means of communication. However, parents should be aware of the broad reaching affect of social media and the extent to which a post, “like”, uploaded photograph or status update might be used as evidence in their case.

Whilst to date, most of the cases in which social media has been used as evidence relate to parenting, there is no reason why “posts” or “tweets” about a new car or boat, the sale of an asset for a great price, a new job or business venture might not be adduced as evidence in a property or financial case.

For more information on this and other family law matters, please contact a member of our Family Law Team.

 

[i] Per Baumann FM (as His Honour then was), “Facebook posts used as ammunition in Family Court Disputes”, The Courier-Mail, Sunday Mail, 13 May 2012
[ii] Per Brown FM (as His Honour then was), Vecchi & Vecchi (2009) FMCAfam (18 December 2009)
[iii] Mallery & London [2012] FMCAfam 145
[iv] Whitehouse & Whitehouse [2015] FCCA 3621
[v] Doonan & Bradshaw [2014] FCCA 2666
[vi] Department of Communities & Compton [2010] FamCA 711
[vii] Wadmal & Amrita (No.2) [2008] FamCA 1062
[viii] Rose & Barwon (No.2) [2010] FamCA 738

 

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