The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Facebook brings your life to Family Court

Facebook brings your life to Family Court

All too often you will see someone venting on Facebook — especially when when they are experiencing difficult and emotional times1. After separation is not the time to turn to Facebook to share your thoughts as such posts can have dreadful ramifications.

It is not uncommon for Affidavits filed in Family Law proceedings to have voluminous pages of Facebook posts annexed to them:

  • photos posted on Facebook of their former partners out drinking alcohol when the children are in their care as proof that a parent is not child focussed or does not have the capacity to meet their children’s needs
  • photos of a party on a holiday or with a new purchase might point to money not disclosed or an understatement of their ability to support themselves
  • A Facebook post of a parent denigrating their former partner as evidence that a parent is not encouraging the relationship between that parent and the children

In a recent reported case, a father’s Application to have his children returned to him from Australia to New Zealand was not successful as the Judge accepted Facebook evidence from the mother in which the father had told her that he wanted the children to live with her.

Another interesting matter was where Facebook posts of the father and children at the beach was accepted by the court as proof that the father had contravened an order that his time with the children was to be only at the child’s grandparent’s home. A friend of the father, obviously also a accessed the photo, printed it and provided it to the mother. The Court took into account that evidence when finding that the father had breached the Order. The father had also denied taking the child to the beach, so the evidence also negatively affected his credibility.

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".

The mother was found to have deliberately prolonged the proceedings. This status was used as one part of evidence. The presiding Judge concluded 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.

It is also important that parties in Family Law proceedings are aware that Section 121 of the Family Law Act makes it an offence, punishable by jail for up to a year, to publish information in a public forum about Family Law proceedings — this includes publishing on Facebook.

In a 2013 case known as Lackey & Mae (Family law reported cases are pseudonyms) the father and his family members had posted comments and statuses on Facebook in which they criticised and denigrated the Court, the Judge, the mother, the Independent Children’s Lawyer and experts in the proceedings. The Court ordered that the father and his family members remove all references to the proceedings from their Facebook pages. An Order was also made for a Marshall of the Court to monitor the father and his family’s Facebook pages for the following 2 years to ensure they complied with the Order. If they didn’t, then the matter was to be referred to the Australian Federal Police.

It is important that upon separation and during Family Law proceedings you should:

  • 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. Check that you have to first approve any “tagging” of yourself in photos. Also check whether others can find out your location through Facebook.
  • 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.

  1. For the dangers of this our related post titled How to defame someone in 2 minutes or less.