CLAIRE OSBORNE is a member of the Family & Relationships Law Division at RMB Lawyers. In this column, she examines the pitfalls posed by social media in Family Law disputes.
With the increase in use of electronic forms of communication, it is becoming common for material to be produced in Court which has been obtained from Facebook, Twitter or other social media forums.
This material can often be relevant to family law matters, particularly child custody disputes. Due to the accessibility of the material, it can be easily seen by former spouses or partners so people involved in such Family Law disputes need to be extremely careful about what they post online because it may seriously affect the outcome of their case.
There have been many recent Court decisions that have dealt with evidence obtained from Facebook. In one case, a father sought orders for a child and his former spouse to be returned to Australia from New Zealand, but because the father had said to the mother on Facebook that the child should live with her, the Court refused his application for their return.
In another case, the Court ordered a father to keep a child at home during contact visits. Subsequently the father took the child to the beach on a contact visit and was photographed with the child at the beach. The father then uploaded the photo to Facebook before a mutual friend printed the photo and gave it to the child’s mother. The father was found to have breached the orders of the Court.
Whilst it may be tempting for people to access their former spouse’s social media or email accounts without their knowledge or consent, where they know their former spouse’s password, they should be aware that it is an offence to do so under the Telecommunications Act.
Information obtained in this way could be referred to the Australian Federal Police for investigation and possible prosecution.
However the information may be used, even if it was obtained illegally, if the Court grants a Certificate which prevents the party who obtained the information from being prosecuted. This Certificate must be granted before the evidence is provided to the Court.
We advise clients that upon separation they change all passwords for their social media sites and use Facebook and similar sites discreetly, especially avoiding posting comments on their former spouse or denigrating their former spouse. They also should not discuss any Court proceedings they may be involved with, as it is also an offence to publish anything that identifies the parties to the proceedings, under the Family Law Act.
Clients should consider the risks associated with being on Facebook and other social media sites when separating from their spouse because there often is a high degree of emotion, conflict and acrimony involved. This can be extremely damaging to their case, if later produced in Court.