Family Law, Facebook and Social Media

Blog post by Daniel Sampson

Social Media has become part of our daily lives and is often taken for granted. Facebook in particular can be a source of evidence and tool for conducting legal proceedings. It can also get parties to proceedings into trouble if they do not know the law and its implications.

Service of Documents

In the matter of Byrne & Howard [2010] FMCAfam 509, an Order was made for the substituted service of documents to the Respondent’s Facebook page. This was in circumstances where all other avenues of service had been exhausted and where the Court had evidence to believe that there was a reasonable chance that service would be effected by Facebook. The Federal Magistrates Rules at the time allowed for electronic service of a document. This could be seen as the natural evolution and acknowledgement of Facebook as a frequently used communication medium akin to email.

Evidence

Documents may be annexed to support a fact that is stated in your affidavit. Affidavits can therefore provide the Court with evidence of the credibility of a party to the proceedings.

A party’s Facebook (and other social media) account may be a goldmine for the other party seeking to discredit them.

In the matter of Everett & Everett [2014] FamCAFC 152, the mother was given Orders for Adult Child Maintenance for the father to pay for their daughter who had Cystic Fibrosis and was offered a place at University. The father annexed copies of the daughter’s Facebook and Instagram pages to support his contention that the daughter did not require maintenance. The Court did not accept the evidence on this occasion but granted the appeal on other evidence.

Publication of Court Proceedings and Identifying Parties

Pursuant to Section 121 of the Family Law Act 1975, the electronic publication or dissemination of Family Court proceedings and identifying parties to the proceedings or witnesses is prohibited. The Court when publishing reportable judgments available to the public will anonymise the parties prior to their publication.

In the matter of Lackey & Mae [2013] FMCAfam 284, the paternal family made multiple false reports to the child protection authorities with respect to the mother’s care of the child. In addition to the false reports, the paternal family and the father also made a number of denigrating online ‘posts’ with respect to the Court, the Independent Children’s Lawyer and the mother.

The Court had a copy of the postings. Federal Magistrate Neville viewed the posts as a ‘form of cyber-bullying, cowardly, derogatory, cruel and nasty’. The Court ordered that the posts be removed and the matter was referred to the Marshal of the Court for further investigation of the breach of section 121, the penalties for which are fines and possible imprisonment.

For more information, view our earlier blog on this topic or contact Daniel Sampson from Culshaw Miller Lawyers.