Can social media posts be used as evidence in the family law courts?

Can social media posts be used as evidence in the family law courts? 12 January 2021

Increasingly, people are living their lives on their chosen social media platform, be it Facebook, Twitter or Instagram. Given that many people choose to take to social media to vent about their lives, it is little surprise that social media posts are increasingly being used as evidence in family law proceedings.

The family law legislation in Australia takes a relaxed approach to the strict rules of evidence that you otherwise see in court proceedings. For example, evidence that goes to the welfare of a child that would otherwise be barred by the “hearsay” rule will generally be permitted. In family law, the best interests of the child are considered to be paramount, so that the content of social media posts that arguably relate to the welfare of a child are more likely than not to be accepted as evidence.

Family law proceedings are, in general, often a battle of “he said, she said”, and social media posts are being used increasingly to support or refute matters in dispute between the parties. Social media posts, comments, photographs and videos are all potential sources of evidence in family law proceedings. A recent study into the admissibility of social media evidence in the family law courts has found that social media evidence was accepted in 82% of the cases in which it was raised.

Social media content that has been used in recent family court proceedings includes:

  1. derogatory or defamatory posts or comments made about an ex-partner;
  2. posts or comments referring to the court proceedings, the Judge, the independent children’s lawyer, DOCS/FACS or police;
  3. screenshots of private messages on Facebook or Instagram; and
  4. photographs depicting a party’s excessive drinking or use of illegal drugs.

The above social media content has been used in a wide variety of ways including:

  1. to raise doubt as to a party’s ability to provide adequate care for their children;
  2. to support claims regarding a party’s excessive alcohol use or illicit drug use;
  3. to support claims about a party’s relationship status; and
  4. to provide supporting evidence about a party’s character and credibility.

If you are going through a separation, it is important that you stop and think before you post about your most recent frustration with your ex-partner or ongoing court matter, as this may impact your case.

If you have concerns about something you have posted on social media, or about something your ex-partner has posted, contact us on (02) 4943 3988 to speak to one of our family lawyers. We have years of experience helping people with their family law needs throughout the Newcastle, Lake Macquarie and Hunter region.

We are here to help you! Contact us now.