With social media so entwined in our day-to-day lives, separating couples may not think twice about taking out their frustrations of divorce proceedings on Instagram or Facebook. But those remarks made in the heat of the moment may come back to bite you. Here, Carlu Booth, Family Law Senior Associate and Laura Dolan, Family Law Associate at Attwood Marshall Lawyers, look at how the court considers evidence from social media and the repercussions that may flow from ill-judged posts.
Introduction
In this day and age of easy access to addictive social media platforms, it’s crucial to be aware of the potential pitfalls of using them during divorce proceedings when the temptation to overshare or vent personal emotions is very high.
Social media is inescapable for most of our society. According to the 2023 Global Digital Report, active social media users account for 81 per cent of Australia’s 26 million population. The report, by creative agency We Are Social and media monitoring company Meltwater, also found that the average time a person aged 16 to 64 spends on social media each day has increased by 6 per cent to 2 hours and four minutes.
However, whether using Twitter, Facebook, Instagram, TikTok, or similar social apps, any posts and comments are often fair game as evidence against you in court proceedings.
Every post, comment or photo can easily be shared and saved. Even if your accounts are private, one of your followers may be friends with your former spouse and pass on any incriminating comments you post while embroiled in contested family law proceedings.
Ill-considered and emotional posts could have far-reaching consequences for child custody battles and the mental health of those involved in the family dispute.
Social media evidence in divorce cases: The court’s approach
According to Family Law Review research, the Australian court system accepted evidence from social media in 81 per cent of family cases in 2015. Of that evidence, 80 per cent was text-based, compared to 65 per cent being a photo or video.
Interestingly, only 36 per cent of all the evidence was weighted highly by the judge in the cases. Although the court has broad judicial discretion in the family law arena, particularly in parenting disputes, it can be challenging to predict how a court may consider and weigh incriminating social media evidence produced by the other party in any given case.
If the evidence is relevant to a fact or issue in dispute, then it can be expected that a court will have regard to the social media evidence.
This evidence could relate to:
- Proof of the existence of a relationship,
- Contact between parties,
- Likelihood (or proof) of family violence or harm,
- A home not being a suitable environment for children,
- Suitability of a parent to care for children (i.e. additional issues or engaging in dangerous or illegal behaviour),
- One party’s intention or knowledge,
- The financial position of one of the parties,
- Whether court documents have been served, or
- The credibility of a party or a witness.
Potential consequences of inappropriate social media use
It is not uncommon for parties caught up in an acrimonious parenting or property dispute to turn to a social media platform to share their grief, anger, and woes in raw and unfiltered posts.
At times, those posts may involve threatening, profane or derogatory language aimed at that person’s former spouse or family circumstances. Although the poster of such comments may only have been venting without any intention to follow through with any statement made, once the post is out there, it may become damning evidence used by the former spouse to advance their position in a court battle over children or to support an argument about the suitability of the poster to care for the children.
If the court proceedings involve an acrimonious battle over the living arrangements for children, any inappropriate social media use could significantly impact parenting orders made by the court for children.
The paramount consideration for the court when making any orders relating to children is what is in the best interests of a child, with the court giving particular attention to the need to protect children from physical or psychological harm and being subjected to family violence. Another overlooked factor is that children are making their way onto social media younger and are generally much more skilled than their parents in navigating the platforms. Any inappropriate post could be seen by the children at the centre of the dispute and greatly impact them and their relationship with the parent making the post.
Each case will turn on its own circumstances, and a family lawyer will be able to assess whether, in a particular case, any social media posts should be used as evidence in a court case.
Emotional spouses should resist the temptation to overshare their lives on social media if they are going through a stressful and acrimonious family breakdown. Speaking to family or friends outside of the social media arena or a professional may be a more appropriate option to seek support needed during a difficult time in their life.
The public should be aware that social media is a treasure trove of potential evidence for court cases. Legal professionals regularly use such platforms to secure evidence supporting a case.
Practical tips for navigating social media during separation or divorce
Ideally, it is best not to post on social media about the breakdown of a relationship.
However, in today’s day and age, where our lives are more connected with the digital world than ever before, we know that putting a blanket ban on social media usage during separation or divorce proceedings is a difficult ask, particularly when a dispute can drag out for several years, depending on the acrimony that has reared since the split.
There are strategies you can follow for responsible social media use during a separation or divorce. Some top tips include:
- Setting all your profiles to private,
- Unfollowing your spouse or your spouse’s family and friends,
- Changing all your passwords in case your spouse can access your accounts and goes fishing through your private messages,
- Taking any action necessary to remove your accounts from any linked devices (such as Apple Mac, iPad and iPhone),
- Having online discretion – avoid controversial content being posted.
As with all complex family law matters, seeking legal advice before posting or sharing anything related to the separation or divorce is best. When in doubt, ask your lawyer!
Attwood Marshall Lawyers – helping families face contentious issues with a strong emphasis on dispute resolution and negotiation
Our devoted team of lawyers practice exclusively in family law matters. Our family lawyers understand the sensitive nature of family disputes. We aim to provide clear and practical advice that gives you confidence and minimizes stress.
The family law team is experienced in children and parenting matters, helping people navigate divorce and separation, negotiate property settlements and draft binding financial agreements.
If you need assistance with a family law matter, please don’t hesitate to get in touch with our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241 or email dtolley@attwoodmarshall.com.au. Our team are available at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
