Venting on Facebook… We’ve all done it, right?

After separation is not the time to turn to Facebook to vent your frustrations – it can result in terrible consequences.

It is not unusual for Affidavits filed in Family Law proceedings to have pages worth of Facebook posts annexed to them to be included as evidence. These can include:

• Photos posted on Facebook of their former partner out drinking or partying when the children are in their care as proof that the parent is not child focused or does not have the capability to meet their children’s needs;
• Holiday snaps or photos of new purchases (such as cars, boats or homes) which may be used to point to money not disclosed in the proceedings;
• A Facebook post which shows a parent disparaging their former partner as evidence that a parent is not encouraging the relationship between that parent and the children.

There are some interesting cases that have been before the Court in recent times that have seen Facebook evidence bring matters unstuck. These include:

• A father’s Application to have his children returned to him from Australia to New Zealand was unsuccessful as the Judge accepted Facebook evidence from the mother in which the father had told her that he wanted the children to live with her.

• Facebook posts of a father and the children at the beach was accepted by the Court as proof that the father had contravened an Order that his time with the children was to be spent only at the grandparent’s home. A friend of the father printed the post, including the photo, and provided it to the mother. The Court took into account that evidence when finding that the father had breached the Order. The father had denied taking the child to the beach, so this evidence also damagingly affected his credibility.

• A status update from a mother was admitted as evidence in proceedings. The mother had posted on her Facebook profile:

           “I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000”.

The mother was found to have purposely drawn out the proceedings. This status was used as one part of evidence. The Judge determined that the mother had abused the Court process and had exploited the father by making him incur further legal costs and had wasted the Court’s time and resources. This resulted in the Court handing down a $15,000 Costs Order against the mother.

It is also important that parties in Family Law proceedings are aware that Section 121 of the Family Law Act makes it an offence to publish information in a public forum about Family Law proceedings — this includes publishing on Facebook, Twitter and other social media platforms. This offence is punishable by up to 12 months imprisonment.

In a 2013 Family Court matter, the father and his relatives had posted comments and statuses on Facebook in which they criticised and disparaged the Court, the Judge, the mother, the Independent Children’s Lawyer and the experts in the proceedings. The Court ordered that the father and his relatives remove all references to the proceedings from their Facebook pages. A further Order was made for a Marshall of the Court to monitor the father and his family’s Facebook pages for the following 2 years to ensure they were compliant with that Order. In the event that they did not adhere to this Order, the matter was to be referred to the Australian Federal Police.

So, what should you do following separation and during Family Law Proceedings?

• Change your password – Make sure that only you have the password to access your account.
• Check your privacy settings – Check who can see your profile and how much of your profile they can see.
• Review your “friends” and remove people if you feel it’s necessary — People you considered friends during your relationship may not be post-separation.
• Think before you post — Remember that everything you post on any social media platform has the potential to find its way into evidence in your proceedings.
• Do not post about your proceedings or your former partner.

Our best tip for social media – If you wouldn’t want a Judge to read it, don’t post it! It’s that simple.