#SocialMedia and Family Law: The Pitfalls of Posting
By Aaron van der Heyden
20 September 2016
The use of social media is prolific in Australian society. As of January 2016, approximately 15 million Australians have Facebook accounts from a total population of 24 million people. Instagram has 5 million monthly active users, and 3.7 million Australians are members of LinkedIn.¹ Social media use has become part of our routine; whether a quick scroll through your news feed whilst on the morning commute, or checking in on your buddy’s activities when winding down at night. It is the forum through which we announce most things, from where we dined for dinner, to life milestones such as engagements, birthdays, and new relationships.
Inevitably, social media may also play a role at the end of a relationship, in our increasingly modern world. There can be serious implications from posting every aspect of your life following a separation, which is often not experienced until the material is well and truly in the hands of the Court.
In the case of Dautry & Wemple², the Federal Circuit Court noted that:
“the Court regularly warns litigants about the use of social media and the ready access by others to it…Making information available through social media necessarily involves, if not invites, others having access to it.”
Accordingly, there will be many adjustments that you will need to make in your life following separation. Lawyers will advise you about such changes pertaining to your property holdings, bank balances, or the time that you spend with your children. We will also advise you about the changes that may need to be made to the way in which you communicate with your former partner; and use of social media is no exception.
Your social media activity in the period following separation and prior to finalising your matters with your former partner should be carefully considered. In most circumstances, posts relating to your former partner, family, relationships, finances or your separation will no longer be appropriate. Otherwise, you may find that the post about your new expensive handbag, five star trip to Europe, or recent big night out, will be attached to an Affidavit and filed with the Court. As set out in the case of Dautry, social media posts are a widely used and accepted form of evidence.
Further, the way in which you communicate information to your former partner deserves careful thought during this emotional period. Updating your relationship status and posting a cute picture with your new partner may not be best the way to inform your former spouse that you are in a new relationship. The way in which you communicate information can have an enormous indirect impact on the resolution of your financial matters and parenting matters.
You will also need to contemplate whether uploading posts about your children are appropriate. Is this something that you and your former partner were formerly comfortable to post, or will such posts and references to children on the internet be an issue, giving rise to further dispute? The Family Court has demonstrated that it will readily make an Order to prohibit parties from posting about issues arising in the proceedings or uploading photos of children who are the subject of proceedings.³
²  FCCA 943
³ Hermann v Hermann  FamCA 213