
A guide to using social media in family law disputes
18 September 2024
By OSD
Written by Alex Mondia and Amy Baltzer.
Social media is intertwined with our daily lives.
When going through a separation or divorce, it can be a convenient tool for staying in touch, seeking support from, or updating loved ones.
However, it is essential to exercise caution when using social media during this tumultuous time as it can end up having significant consequences on your family law dispute.
What the law says
For married couples in Western Australia, it is an offence to communicate an account of proceedings under the Act to the public, where that account identifies certain people involved in the proceedings, including your former spouse, their friends and family, their legal representatives, or any other person concerned in the proceedings.[1]
In the context, “communicate” includes “communications using a social media service”.[2]
Identifying a person is not restricted to using that person’s name, it includes any material which is capable of identifying them. This may include:
- physical descriptions, photos or recordings of that person;
- their address (home or work);
- details of their employment;
- detailing a relationship or connection between the person and another identified person;
- their political, philosophical or religious beliefs; or
- any personal property associated with that person.
Importantly, you will not be committing an offence when privately messaging with your family and friends.
Similar legislative provisions apply for de-facto couples,[3] but currently these provisions do not provide an express exception for private messages.
Consequences of contravening these sections can be significant, including imprisonment and/or fines of up to $5,500.
These provisions are intended to protect the privacy of individuals involved in family law matters. They are broad enough that even where you do not intend to reveal identifying information, discussing your case online can inadvertently lead to legal trouble.
Social media as evidence
If your dispute finds its way to court, your social media activity (both past and present) may be used as evidence against you.
In parenting matters, social media activity is often used as evidence in relation to a person’s parenting ability or risk factors. For instance, what you may think is an innocent post about drinks with friends on the weekend when your children are not in your care could be misconstrued or used to suggest excessive alcohol use.
Even in financial proceedings, photos of holidays, new vehicles or of other expensive assets can be used as evidence of your financial position.
Though not all evidence from social media will be treated equally, it is crucial to remember that anything you post online may end up before the Court and be used against you. This includes not only your own posts, but also those of your family and friends.
Best practices
Here are some practical tips to manage your online presence responsibly during a family law dispute:
Consider a social media break
It might be wise to temporarily deactivate your social media activity until your legal matter is resolved. If this is not possible, try to maintain a low profile online and limit your activity as much as possible.
Post with caution
If you opt to be active on social media do not mention your ex-partner, your case, or any other related details. Remember that even seemingly benign posts may be taken out of context and just because you delete a post, does not mean it is gone for good.
As a general rule of thumb, post as if a judge is watching!
Don’t be misled by privacy settings
Privacy settlings offer limited protection and adjusting your settings will not necessarily keep your posts hidden from the public. Remember that friends and acquaintances may unintentionally share your posts, comments or private messages, expanding their reach beyond your control.
If in doubt, our team at O’Sullivan Davies can discuss strategies for managing your digital presence to help minimise the effects of social media use.
At O’Sullivan Davies, our experienced family lawyers can guide you through the property settlement process and ensure your rights are protected.
Contact us today to arrange an initial consultation.
[1] Family Law Act 1975 (Cth), s114Q.
[2] Family Law Act 1975 (Cth), s114P.
[3] Family Court Act 1997 (WA), s243.