Social Media and Family Law

How many Facebook ‘likes’ will you get for being held in contempt of Court?

We live in a society entrenched in technology. Recently, a survey found that over 1 billion people checked their Facebook feed over the course of one day. That’s roughly 1 in every 7 people in the world!

Interestingly, social media plays an important role in Family Law matters. On the one hand, social media can help parents to stay connected with their children through instant messages, photos, status updates and the like. A Parenting Order may even include a provision allowing children to communicate with their parents through Facebook, Instagram, Twitter and other social media platforms when they are not spending time with them.

On the other hand, social media can be a dangerous tool. During Family Law proceedings, things can get particularly stressful and often parties will turn to social media to vent their frustration by posting nasty and offensive comments/statuses/pictures and the like. These posts are usually accompanied by a barrage of replies from family and friends supporting the party and cheering them on. While some people may do this without a second thought, it can have serious legal consequences. Very often, Family Lawyers will trawl through a party’s social media feed to find damaging material to include in their client’s Affidavit. This also extends to emails, text messages, letters and any other material the party has sent to their ex-spouse over the years which may be negative and derogatory in nature.  

More importantly, what a party may think is a harmless Facebook post sounding off about their ex-spouse’s affidavit material or an expert witness’s recommendations can actually be a crime punishable by up to 1 year imprisonment. Section 121 of the Family Law Act 1975 makes it an offence to publish any account of proceedings or images which identifies a party and/or child involved in Family Law proceedings. Suddenly, a Facebook status that was written in a 20 second bout of frustration could lead to jail time!

In the recent case of Lackey and Mae [2013] FMCAfam 284, the Father in Family Law proceedings posted negative and derogatory comments about the Court, the Independent Children’s Lawyer, expert witnesses and the Mother on his Facebook account. The Court accepted that these posts were a form of cyber bullying and in breach of Section 121 of the Family Law Act. The Court ordered that the Father immediately remove all offending material and that he and his family be restrained from publishing or otherwise distributing any material, by electronic means or otherwise, relating to the Family Law proceedings, the children, the Mother or any member of the Mother’s immediate family including, but not limited to, publication on Facebook or other social media sites. The Judge noted that any further breach of the Order would incur a penalty of a bond, or other “more severe penalty”. The Marshal of the Court and the Australian Federal Police were provided with copies of all material filed in the proceedings. They were requested by the Judge to monitor the Father and the paternal family's' social media accounts for a period of two years for breaches of the Order and, if necessary, to refer the matter to the Australian Federal Police for possible prosecution.

It is clear then that the Family Courts are increasingly willing to impose their jurisdiction across all social media platforms and hold parties accountable for their bad ‘netiquette’. Once a status is posted or a picture is uploaded, it is considered public and cannot be retracted. It is therefore very important for parties in Family Law proceedings to be mindful of what they post and to think twice before they turn to social media to blow off steam.

As many would say, “If you have a problem - face it, don’t Facebook it”.

This article is intended as information only.