Can your SMS Text messages and Social Media Posts be used as Evidence in Family Law proceedings?

We all love to share our lives on different social media platforms. It’s not uncommon for people to post revealing information or photographs on these public forums. Unfortunately, depending on what information you share, posting on social media can potentially do more harm than good. It can be used as evidence against you during court proceedings and adversely affect your Family Law matter outcome. Reliance on text messages and social media posts as evidence in family law Court proceedings is not new. However, if you think that your social media posts will not be used against you by your former partner and their solicitor, then frankly you are mistaken.

Not only are SMS text messages admissible as evidence in the Family Court (and all other family law jurisdictions), but so are emails, Facebook posts, Twitter tweets, skype transcripts, and any other electronic messaging.

The impact of social media on a future Family Law Dispute is not something contemplated at the time of posting to social media. If we all had the ability to turn back time, there would definitely be things from our youth we would probably remove from social media. Historical social media posts can become an issue in a Family Law Dispute years after they are posted. Even more impactful can be social media interaction during your family law matter. A reactive post can seriously impact the outcome of your matter.

It is normal to feel overwhelmed, anxious and angry when going through separation or divorce. The process takes a toll on everyone involved. Unfortunately, parties to a family law matter often turn to social media to air their grievances and frustrations. Posting to social media may be the only option they see available to achieve any type of justice or feel that they have a voice.

What Evidence can be sourced from Social Media posts
Evidence from social media can be relevant to a wide range of family law disputes and proceedings including those relating to parenting matters, financial disputes, spousal maintenance and child support. Some examples of what could be used against you in family law proceedings include:

• an album on Facebook of your lavish holiday or new car could be relied upon as evidence of your capacity to pay your former partner spousal maintenance;
• your previous employment history or your side business listed on LinkedIn that you forgot to disclose could be evidence of your failure to provide full and frank disclosure in financial proceedings;
• photos on Instagram of your drunken night last Friday when your solicitor previously wrote a letter to your former partner’s solicitor stating that you were unable to care for the children that night;
• your derogatory twitter tirade about your former partner from 2006 could be evidence of your attitude to parenting or your character generally; or
• your dating profile which states that you drink and do drugs casually could be used as evidence as to your parenting ability.

What to Remember when using Social Media?

1. Think before you post. Consider how an objective person who is not familiar with your case or the parties involved will view the post. If emotions are high at the moment, it’s better to rest on the post/comment and decide later if you still want to share it.
2. Check your email and computer security. Make sure that your former spouse cannot access social media networks such as Facebook or Instagram. We recommend that you make your profile private.
3. Hide your location and whereabouts when posting if your safety is an issue. It poses a great danger, particularly if you are at risk of domestic violence if you are posting your location on your profile.
4. Be mindful on what you post. Your behaviour via social media posts may give rise to assumptions of your behaviour during your marriage or relationship. Ensure that what you post is always of a tasteful nature. Avoid:-
   
   a. Sharing negative comments about your former partner on social media are regularly annexed to affidavits filed in a Family Law parenting matter. Negative social media posts don’t support both parents being able to co-parent the children and support the other parent’s relationship with the children.
   b. Sharing explicit images and videos. Never post disparaging comments about the judge, the Court and the legal process as this information will be available to the Courts.
   
   

If you have any questions or require any assistance in relation to any family law matters please contact the Family Law team on (02) 8525 2700. or click here to request an appointment.

Article written by Nikita Ward
Photo by William Iven on Unsplash