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For many, social media is now an aspect of our daily lives. In the context of a relationship breakdown, it is important to manage your social media appropriately or there can be adverse consequences.

What are some possible consequences of posting inappropriate content?

Following separation, it is understandable that people may be emotional and want to seek support from their networks, but posting on social media about the other party or Family Court proceedings is generally not a good idea.

Even if the other party is not your friend on the platform or you have strong privacy settings, posts can still come back to bite you. It is easy for other contacts to print, screenshot or record what you have posted and forward this on without your knowledge. If you decide with the benefit of hindsight to delete a post later, this will not make copies made by other people go away.

Before posting anything, you should pause to carefully consider whether you would want the post to be seen by the other party, lawyers, the Family Court or even your child/ren. In Family Court proceedings, copies of relevant posts could be produced as evidence to the Court, through being annexed to an affidavit or tendered as an exhibit at trial.

There could be various consequences arising from posting inappropriate content in the context of a family law matter, including:

  1. It is a criminal offence under s 121 of the Family Law Act 1975 (Cth) or s 243 of the Family Court Act 1997 (WA) to publish or disseminate to the public any account of Family Court proceedings that identifies a party to the proceedings, a person associated with the proceedings or a witness in the proceedings.
  2. If you say something negative about the other party when parenting issues are in dispute, this may be relied upon in arguing that:
    1. you are not able to communicate effectively and respectfully with the other parent; and/or
    2. you are not likely to promote the child/ren having a meaningful relationship with the other parent.

These are both factors (amongst others) that the Family Court may consider in deciding what arrangement is in the best interests of a child.

  1. If you post anything to indicate what legal advice you have received, this could waive “legal professional privilege”, such that your communications between you and your lawyer are no longer treated as being confidential.
  2. If you post material that could damage the reputation of the other party and is untrue, you could open yourself up to a defamation claim.
  3. It could negatively impact your relationship with the other party, such that they become less willing to negotiate.
  4. If your post gets into the wrong hands, it could embarrass or emotionally harm your child/ren.

What do your posts say about your post-separation life?

Even if your post does not specifically relate to the other party or the proceedings, you should still be mindful what information you are sharing through social media about your post-separation life and how this could be used.

If you are concerned for your safety after separation, you should of course be careful about disclosing your location through social media.

You should also consider how posts might reflect on you generally and whether they are consistent with the case you are presenting in your family law matter. For example:

  • In parenting cases, it could damage your case to post content that may raise risk concerns, such as in relation to alcohol, drugs or violence.
  • In financial cases, there may be questions raised if your posts indicate that you are living a lavish lifestyle or have financial circumstances that you have not disclosed.

What can you post about your child/ren?

Parents sometimes have differing views in relation to social media use, including whether it is acceptable to post information about or photos of their child/ren. If this is an issue in dispute, you should initially try to resolve this by communicating as co-parents to agree the limits.

If necessary, the Family Court can make orders requiring a party to remove photographs of children or restraining a party from posting photographs of children. For example, in the case of Crisp v Clarence [2015] FAMCA 964, the judge made orders restraining the parties from posting information about the children on social media, except for uploading photographs of the children to a secure Facebook page that could only be viewed by family members. The judge commented that:

“It is hoped that all of the parties would understand that social media is not an appropriate venue to involve a child other than in the most benign and unobjectionable fashion … It is however a reality that involved persons sometimes feel the need to share their personal lives with others by way of Facebook and other social media sites. It would be naïve to consider that the parties should be restricted from doing so provided they are kept within the reasonable parameters as determined by the best interests of the child, that would not extend to a discussion of the proceedings or the merits of each parties’ case.”

What other role can social media play in family law matters?

In some respects, social media can also be a useful tool in family law matters. It can of course be used to communicate or share information with the other party or extended family in relation to your child/ren in a positive way.

There have also been cases where the Family Court has allowed social media to be used as a means of serving court documents by way of “substituted service” when it has not been possible to locate or serve the other party through other methods.

Should you follow advice on social media?

Social media can be a good resource for sharing information or ideas, but it can also be a source of misinformation. In the same way that it is recommended to see a doctor rather than self-diagnosing a medical condition from searching on the internet, you should obtain proper legal advice rather than following what may be said on social media.

Although other social media users may make comments about legal issues and processes based on their personal experience, this does not mean that they are qualified to give legal advice, otherwise have family law experience, are being honest about their own situation, or that their situation is comparable to yours.

If you want guidance or advice for a family law issue, please do not hesitate to contact Lynn & Brown Lawyers to discuss booking an appointment.

About the authors:

Kate Hesford is a Perth Lawyer and an Associate at Lynn & Brown Lawyers.  Kate is an experienced lawyer in the areas of Family Law and Criminal Law. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning.  Jacqui is also a Nationally Accredited Mediator and a Notary Public.

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