Social Media and Family Law Litigation

Rarely are family law cases decided purely in Court. Most of them rely intimately upon the evidence of the behaviour of the parties well before the trial begins. It surprises many litigants to discover that as a party to family law litigation, the entirety of their conduct will often be considered by the Court.

In cases relating to children the following are some important considerations for the Court:

• The ability to provide appropriate care for the children;
• Whether the parties take parental cooperation seriously;
• The capacity of a parent to foster a positive relationship between the child and the other parent;
• The amount of conflict between the parents;
• The extent to which the parents are able to communicate with each other.

Court experience has shown that parents achieve better outcomes in family law litigation when they can do the following:

• Demonstrate by their actions that they can be child focussed;
• Make decisions based around the needs of the child, rather than their own needs;
• Rise above the conflict between the parties;
• Remain calm and centred;
• Demonstrate stability in their personal circumstances and parenting decisions;
• Provide a safe, secure and stable environment for their children;
• Be honest in their dealings with the Court and others;
• Demonstrate generosity of spirit and flexibility;
• Develop a child-focussed parenting plan; and
• Demonstrate an understanding of the position of others.

Most people involved in family law litigation initially concern themselves with the behaviour of the relevant parties once the litigation has commenced.  Parties publicly airing their dirty laundry at that time is not uncommon. Some of that airing occurs on social media, such as Facebook, Twitter, YouTube, Instagram, Pinterest, MySpace, Skype, blogs and forums, and the parties may seek to use that material as part of their evidence in the litigation. Frequently litigants monitor the activities of the other party via what they post on social media. Extracts from social media, acquired by a `friend’ and provided to the other parent are routinely annexed to affidavits as evidence and submitted to the Court.  The Court is then usually asked to infer something negative about the publishing parent.  Courts exercising family law jurisdiction are now taking seriously this evidence from social media.  Accordingly social media posts made without forethought can have serious adverse consequences if they become part of the litigation.

When someone posts to social media they are participating in a social conversation in a public forum. By allowing other people to read what they have written, they are effectively publishing to the world at large.  That social media conversation may well be considered serious and used in subsequent legal proceedings as evidence against the person who posted the conversation.

People reveal information on social media directly, indirectly, deliberately and inadvertently.  It is possible to collate quite a dossier on a person based on what they post on social media.  That task is made easier when the following information is posted:

• The identity of family, friends, acquaintances and work colleagues;
• Where they go to school;
• Where they work;
• The company they keep;
• What they do for recreation;
• Where they shop;
• What they eat;
• What they do and where and when they do it;
• Parts of their personality.

What people may not realise is that material posted to social media, including photographs and location updates, during the relationship and before the dispute commenced in earnest can also have a significant impact on how the case before the Court is decided.  Earlier social media posts inconsistent with the position the litigant wishes to take at trial can be used to diminish the credibility of the litigant.  What may seem innocuous initially can become something significant when seen in the greater context of the trial.

A litigant whose credibility has become compromised can also find themselves in a less comfortable position than they would prefer when it comes time to negotiate any settlement.

Social media users need to think carefully about what they post or reveal on social media and what information they provide about themselves, their family and their friends. A reckless or poorly considered social media post can significantly prejudice a subsequent Court case.
It can be very difficult to undo the damage of such a reckless or poorly considered social media post.

Some lawyers advise that if you post on social media sites, you need to assume that what you post may be used against you. The profile a litigant portrays on social media may not be the profile that litigant ultimately wants to portray to the Court. Accordingly, if you do not want the Court to read your social media post, perhaps it is best that you do not post it.