When Family Law & Social Media Don’t Mix

Social media is part of our daily lives. So, it is not surprising that many separating couples turn to that platform to express thoughts about their family law matter, whether resentment at their ex-partner’s parenting style or their unhappiness at the course their matter has taken through the court system.

While this might feel like a release and you may think that you are doing so privately, there can be consequences if it is found to be a breach of section 121 of the Family Law Act 1975 (Cth) (Act).

Many people involved in these matters would have experienced a situation where their ex-partner takes exception to their use of social media and instructs a solicitor to send a letter complaining about it, or even to include examples of such use in court documents as evidence of poor parenting or a poor attitude to settlement.

You may be surprised to learn that the Act prohibits the publication of the identity of a party to a family law proceeding and even makes doing so punishable by up to one year in gaol. You may be especially surprised because this sort of behaviour occurs continuously without punishment… but not always.

In the 2013 case of Lackey & Mae [2013] FMCAfam 284, the father posted several status updates on Facebook in which he abused the mother and described the Independent Children’s Lawyer and the Judge as inept and ineffectual. In the course of his judgment, the Judge said that:

“An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of social media… While it can be used for good, often it is used as a weapon, either by one or both of the parties, and or by their respective supporters.”

The Judge ordered the father to remove all references to the proceedings from social media. He also ordered the father not to publish further material relating to the proceedings and even directed the Marshal of the Court to monitor the father’s social media accounts and censure any updates relating the proceedings. Although comprehensive, some have said that this penalty seems relatively minor, in view of the maximum penalty available to the Court.

Parties to family law proceedings should obviously be careful of using social media in this way. They could show themselves to a Judge to be insensitive to relevant matters, such as the children’s best interests. They could also inadvertently contradict something they have said in sworn evidence. They may even provide evidence to an opponent of absentee-parenting which is not child-focused and would not otherwise be available. Or provide evidence of an inability to facilitate a meaningful relationship between the child and the other parent.

Stop and think before you post family related issues on social media. Ask yourself, ‘If this was shown in court, could it be looked upon poorly?’ If the answer is ‘yes’, then don’t post.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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