Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life. Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones. But what happens when people going through a relationship breakdown take to social media? Usually little good comes of it, and sometimes quite a lot of bad can result.
Social media as evidence
Separation causes anxiety and tension and you do not need to give rise to unnecessary additional stress or embarrassment. It is important to know that social media postings can be a breach of the law if they harass or bully another person, so do not ever post a negative rant against your former partner.
If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer might search social media to see if they can find out anything damaging about you that could be used as evidence.
When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another. So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.
In a similar way when involved in a parenting dispute, you really should not post to social media anything which might unnecessarily cause you a problem. For example avoid posting photos of your ‘celebratory night out’, especially if the children were in your care at that time. Of course, you should not have ‘a big night out’ when the children are in your care unless you have made appropriately safe arrangements for their care. Even if the children were staying overnight with grandparents on that night, it would be wiser not to post anything on social media which might at the very least require you to explain and justify your actions.
Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you really should do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.
Even if a friend or relative in ‘support’ of you posts a reply to you with a ‘negative rant’ against your ex that could also cause you problems.
The decision of the Australian High Court in September 2021 in the case of Fairfax Media Publications v Voller [2021] HCA 27, made it clear that Australians who maintain a social media page may be exposed to defamation liability for defamatory posts that others make on their page – even if they are not aware of the posts.
This has caused the federal government to investigate the need for legislated intervention around social media and it is currently reviewing a draft Social Media (Anti-Trolling) Bill .
Social media and prosecution
While you may think no one is going to pursue you for defaming your ex in a family law case, or giving out information about your family law case on social media, think again.
The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.
That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.
In two cases involving such unlawful social media publication, the Court focused primarily on two things.
Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.
Secondly, the Court held that it is in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, and so it is not acceptable for litigants to make attacks through social media which generally are made from a somewhat one sided perspective and rarely would be likely to outline all the issues of the dispute in a balanced way.
In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one- off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.
In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.
Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.
Can social media be good?
The cases referred to above involved ongoing bitterness and acrimony between the separated couples. Happily, most separating parents can and do respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.
Separated parents may often feel a certain tension dealing with their ex even if they are co-operative around parenting: In such case they might consider setting up an ‘app’ communication specifically to exchange information about the children without the need to text each other directly [which sometimes causes friction]. A dedicated parenting app space restricted to arrangements about the children could be the answer.
Common apps for private communications include ‘What’s app.’ But there is also a useful app which separated parents might like to explore through the organization ‘Our Family Wizard’ https://www.ourfamilywizard.com.au.
Conclusion
The general guideline when it comes to social media and family law disputes is to not post on any public forum. You and your former partner should find a way to use electronic communication in a private space to help you co-parent your children after separation.
Not only would you not want to find your Facebook and Instagram or group chat messenger posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings.
If you or someone you know wants more information or needs help or advice, please contact us on 02 9699 9877 or email [email protected].