Family Court, Facebook & social media – Avoiding trouble

Troll On LaptopTom had decided that enough was enough. Feeling hard done by in his parenting matter before the courts, he decided to take to social media and attack all and sundry. No one was safe in his tirade as post after post criticised his ex-partner, the Judge and even the lawyers on both sides.
“I’d pretty much had a gut full of the family court and all the game playing and long winded rubbish that comes with it”. For Tom, venting on Facebook was his way of letting off steam to his friends about not being able to see his kids for many months. “Don’t get me wrong, I’m not some internet troll, I just wanted to let my mates and family know that what was happening to me and the kids was shitty”.

Unfortunately, Tom’s approach is an absolute no no when it comes to the court. When dabbling in social media you really have to be careful about what you post, regardless of whether you’ve got a family law matter in the courts or even a simple property dispute. Yesterday’s angry posts can come back to haunt you tomorrow!

Five Ways to Avoid a Family Law Disaster on Social Media

The Family Law Act is the law that guides the courts when it is making decisions about your matter. One thing it prohibits is publication of the details of family law proceedings.  And by publication that doesn’t just mean mentions of your matter in newspapers, television and radio. Publicising anything about your matters before the court on Facebook, Twitter, Instagram or any other social media site is strictly forbidden. In fact, even if your an amateur blogger writing to a limited audience it is still considered a violation of the law [Section 121, Family Law Act]. It doesn’t matter how minor the proceeding is, even the simple issuing of a subpoena can not be talked about to third parties.

facebook bad post2And while non-court-based family services, such as family counselling and family dispute resolution procedures, are not “proceedings” these services are subject to confidentiality  provisions so any communications made under these conditions should also not be disclosed to third parties.

In one case a father posted on his Facebook page photos of the mother and children and information identifying where they lived. The Judge regarded these postings as publishing, describing the father as having “caused to be placed in the public domain on a public Facebook page viewable by anybody who should choose to look upon them”. He concluded that the father’s actions were  in breach of s 121 and ordered that he remove the posts and be restrained from posting on the internet or publishing any photographs of the mother or the children or any reference to, or comment about, the mother or the children or the proceedings.
The thing is, Section 121 is aimed at giving privacy protection for people involved in family law proceedings. And the court takes this seriously with penalties that include fines  and even imprisonment for up to 12 months.  Yikes!

Posting on social media and is now affecting the outcome of family court cases on a daily basis. One Family Court Judge has stated that social media “is a veritable ‘Aladdin’s Cave’ which parties  readily and regularly explore for incriminating ‘evidence’ to be used in litigation”.Whether it’s a parenting or property dispute you need to be ultra careful what you put out on social media to a potentially wide audience, which may include the other parties’ lawyer.

Posting when your away with the birdies on drugs or alcohol 
A drunk night out with a mobile phone close at hand can lead to some inappropriate posting, but those morning after blues may hit you hard when your offensive ramblings or lewd pic posting is raised in court as evidence you’re an unfit parent.

fb post - dad and drinkingThreats – whether meant or not
This should go without saying … But don’t threaten your ex on social media. Don’t even jokingly threaten them. It’s illegal and it can be used against you in Family Court (if not criminal court).
In a 2015 case, a father’s Facebook posts were found to be a deliberate attempt to intimidate the mother where he posted a person holding a gun with an indirect reference to his ex-partner.
In another matter, the mother relied on the father’s Facebook post of an image of a man assassinating a woman by shooting her and making her fall off a cliff. The Judge noted that this demonstrated that the father has no contrition or insight as to how such image could affect the mother. 
So even indirect intimidation can highlight to the court problems with your character.
Posting about anything to do with an ongoing family court matter
In another reported case 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”.
Here mum was found to have deliberately prolonged the proceedings with the above status update used as evidence. The Judge concluding 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. A $15,000 costs order was made against the mother. Ouch!
Publicising your poor lifestyle choices
In another case, a dad’s Facebook posts about his larrikin drunk flatmates left the Judge with no doubt that the father could not be trusted with overnight stays with his child. Despite the fact that dad had arrangements for overnight and weekend stays the Judge overruled the original orders due to the evidence presented about his posts. The Judge made future overnight contact conditional upon the father having his own residence. The Judge noted that: “Put simply I do not trust his choice of friends. This is apparent from the Facebook exchange. He says that none of the people he currently lives with participated in that exchange. But that is not the point. He is plainly happy to have extremely undesirable people as friends and acquaintances.

“He is a hopeless father”, “She is such a loser”, “OMG I hate him so much”
One of the Courts obligations is to consider the relationship of the parents and their ability to facilitate and encourage a relationship between the other party and the child. These sorts of comments hardly give that impression.
If the matter is already in court, one of the most common orders that a court will make is a “non-denigration order”, that is that neither party shall denigrate the other in the presence or hearing of the children. If your child is your friend on Facebook (not recommended) then this would constitute a breach of that order.

Facebook Information can be shared very quickly. Even if you think your settings are totally private, another person can re-post photographs of you and make commentary about where and why the pic was taken. Other people are able to tag or identify you in photographs, even if you do not want to be tagged or identified. Reckless and irresponsible posts on social media can be used in court against you.
Your ex’s lawyer may be inclined to try to subpoena that information as part of the overall case, including any email sent to you as part of that Facebook account. They may also ask you in the discovery process (the pre-court stage where each party can demand information from the other) to disclose your Facebook account password and log in information, so they can see what is contained in those emails and the private parts of your Facebook account.  So nothing really is sacred when it comes to fighting a family dispute in the courts.

Another pertinent reason why you should watch what you post on social media is the impact it can have on your kids.
It is not unusual for children to view the texts, emails and photographs on your mobile or computer. And remember that in doing this they could  also discover things that might upset them, like stuff showing that your involved in an extra marital relationship or that you think their dad is an ass.  These social media postings may be embarrassing and confronting for them. Their school friends may also have access to your social media postings which could lead them to possible bullying and ridicule.  Don’t forget that in family law the primary concern of the court is whether something is in the best interests of the child.

Tips For Keeping Out of Social Media Trouble

  • If you have Facebook on your smart phone, delete the App before you leave home. This will remove the temptation to write anything about your former partner on Facebook and allow you some time to reconsider the photos that you post or comments you make.
  • Make sure you lock your social media accounts so your kids can’t see anything that might upset them. Plus if any of your content is potentially going to do this – remove it.
  • Tell your friends not to post any photos of you without your approval.
  • Change your password — Ensure 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.
  • Ask your friends that you have to first approve any “tagging” of yourself in photos. 
  • Review your “friends” list and remove people if necessary — People whom you considered “friends” during your relationship may not be post-separation. Such “friends” may be waiting to take a screen shot of your slip ups.
  • Think before you post — Remember that everything you post has the potential to find its way into evidence in your proceedings.
  • Do not post about your proceedings or your former partner. Be child focussed. If you would not want a Judge to read it, do not post it!
  • Consider going offline — It may be best for you to avoid using Facebook (and other social media) until your Family Law proceedings have concluded.
  • And finally, don’t over share – parents need to be careful regarding the overuse of social media to share content based on their children, especially where the other parent doesn’t agree.

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