Trending Now: Social media evidence used in The Family Law Courts

The use of evidence obtained through social media (including Facebook, Instagram and Twitter) has become a regular occurrence in family law courts around Australia.

Evidence of private conversations between parties, public posts, photos and videos have all been adduced in courts with a variety of success in admissibility and probative value.  It has been used for countless reasons, including evidence of character and suitability to parent, evidence of the intentions of a party, evidence of knowledge or consent, to show evidence of a relationship, and evidence of family violence.

What does the law say?

In family law cases, the rules of evidence have been relaxed from the Western Australian evidentiary requirements to be more flexible and discretionary.  Judicial officers decide: how to weigh evidence that has been admitted; whether to give any weight to normally inadmissible material; and whether to direct the parties to provide particular evidence.1    

Attacks on a party’s credibility, especially their suitability to parent, are generally permissible in family law cases, and are easily displayed through social media.  As such, this kind of evidence is produced regularly.2

This evidence could be challenged on the grounds that:

  1. There must be a logical connection between evidence and facts;3  and
  2. The evidence ultimately must bear on a matter in issue in trial.4

However, the wide discretion awarded to judicial officers, and their ability to deduce from character evidence a party’s suitability to parent, means social media evidence regarding the character and creditability of the parties is regularly admitted.

But Facebook is not the real world, right?

Even if “all the world’s a stage” on social media, parties should not think that overdramatic behaviour will be disregarded in the courtroom.  In Lackey v Mae,5  Neville J described the use of social media evidence for the purpose of denigrating another party as “an unfortunate and increasing feature of modern litigation”.6  Increasingly, parties are offering evidence by way of public and private Facebook posts that intends to demonstrate the character of the person who posted.

In Kester v Schultz,7  the mother adduced evidence of a public Facebook status posted by the father’s new partner, “who wants to go on a killing spree, Mr Schultz’s ex is pissing me off” in reference to the mother.8

In Longsdorf v Granger,9  the father attempted to assert evidence from Facebook of a relationship between the mother and a new partner.  Despite the mother’s assertion that “what is on Facebook is not real”, Harman FM found the contrary.  He made the comment that the cross-examination of the mother in relation to the Facebook comments “caused more embarrassment and a look of dread and being caught out than I have ever seen on a witness’ face”.10

Judicial acceptance and weighting

The wide judicial discretion in family law decision-making makes predicting the admissibility of social media evidence very difficult.  In a recent study by Blakeley, Easteal, Fitch and Kennedy (the study),11  evidence from social media was accepted in 82 percent cases.  Of the cases in which social media evidence was accepted for the purpose for which it was offered, the evidence in 36 percent was weighted highly by the judicial officer.  There was neither a significant difference in weighting between evidence adduced by self-represented parties and parties with legal representation, nor where the evidence was adduced to positively, negatively or neutrally prove a fact in issue.  The study did note that judicial officers appear to give strong weight to evidence that “is indicative of a party endeavouring to mislead the court”.12  In one example a father drew the court’s attention to a mother’s post on Facebook which implied she was “forcing the father to incur large legal bills trying to present his case”.13  Barry J ruled that the mother had not acted in good faith.14

Lavan comment

Parties are advised to protect themselves by not posting anything on social media that may be relevant to their proceedings.  It is important to be aware that online actions can have real life consequences.

Parties are recommended to change the passwords to email accounts and social media accounts after a relationship breakdown.  Note though that while this may help to stop an ex partner from accessing your accounts, this does not stop them from adducing evidence that is public on social media, or was a private conversation to which they were a party.

Parties should also note that the relevant family law legislation makes it an offence to publish any account of proceedings or images which identifies a party or child involved in family law proceedings.15  If found guilty of such an offence, a person may be fined or imprisoned for up to one year.  It is therefore important that parties refrain from posting information about their cases on social media.

25 July 2017
Family Law Updates
AUTHOR
Framy Anne Browne
Partner
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FOOTNOTES

[1] Family Law Act 1997 (WA) s 202H; Family Law Act 1975 (Cth) s 69ZT

[2] Lackey v Mae [2013] FMCAfam 284; Smith v the Queen (2001) 206 CLR 650

[3] Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424

[4] Smith v the Queen (2001) 206 CLR 650

[5] Lackey v Mae [2013] FMCAfam 284

[6] Lackey v Mae [2013] FMCAfam 284

[7] Kester v Schultz [2014] FCCA 174

[8] Kester v Schultz [2014] FCCA 174 [53]

[9] Longsdorf v Granger [2010] FMCAfam 1423

[10] Longsdorf v Granger [2010] FMCAfam 1423 [28]

[11] Victoria Blakeley, Patricia Easteal, Emma Fitch and Jessica Kennedy, “Social media evidence in family law: What can be used and its probative value” (2015) 5 Family Law Review 81

[12] Victoria Blakeley, Patricia Easteal, Emma Fitch and Jessica Kennedy, “Social media evidence in family law: What can be used and its probative value” (2015) 5 Family Law Review 81, 93

[13] Rose v Barwon (No 2) [2010] FamCA 738 [7]

[14] Rose v Barwon (No 2) [2010] FamCA 738 [6]

[15] Family Law Act 1997 (WA) s 243; Family Law Act 1975 (Cth) s 121