This would include posting on social media about a dispute involving an ex-partner where their identity is apparent to people in their network, even without names.
‘Don’t be tempted to join separated parents’ pages.’
Legal expert Jodylee Bartal
In a 2013 decision, a federal magistrate described a parenting dispute between a former couple as “a form of tribal warfare” and said the father and his family had “waged a relentless battle against the mother for many years”. The father faced potential criminal sanction over his Facebook posts.
“An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of social media,” the magistrate said.
“While it can be used for good, often it is used as a weapon, either by one or both of the parties … It is a veritable Aladdin’s Cave which parties (and lawyers) readily and regularly explore for (invariably incriminating) ‘evidence’ to be used in litigation. As a weapon, it has particularly insidious features.”
‘Liking’ or sharing posts
Bartal said she had acted for a woman whose former partner had liked and shared a purportedly “funny” meme online titled How to Kill Your Wife. This was particularly sinister because the woman had an intervention order against her ex, known as an apprehended violence order in NSW.
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The woman reported the post as a breach of the order. The post was also used in evidence in a dispute over the division of property because courts can take into account the impact of family violence on a partner’s ability to contribute to the joint pool of assets as well as on their future needs.
Among advice Bartal gives separated parents is: “don’t post disparaging comments [and] don’t ‘vent’ online” and don’t “‘like’ negative comments made by others or post or like ‘memes’.”
“Don’t be tempted to join separated parents’ pages. Some of that content, even if not posted by the client themselves, can be damaging by association,” Bartal said.
Posts about purchases
In disputes over property and finances, Bartal said posting on social media about “expensive holidays and purchases … can be used in maintenance proceedings to demonstrate capacity to pay, or to justify a reduction of support”.
Justice Family Lawyers director Hayder Shkara said social media posts had “been used as evidence in family law disputes for a long time”. He had “regularly seen Facebook posts, Snapchat videos, WhatsApp messages and images, Instagram stories and even comments forming part of the court record”.
“In a property dispute, we had a matter where one party filmed themselves in a new car which led to an investigation into the source of those funds for the car, and increased the asset pool, meaning more money for the other party,” Shkara said.
He said his advice was straightforward: “Before posting, assume that it will one day be read by a judge in court”, and “never post about your case, the court, or about your ex-partner”.
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He said the imminent ban in Australia on children under 16 using social media was one of the areas to watch.
“Discussions have started between separated parents about the social media ban for children under 16. There are concerns about how parents will enforce such restrictions, especially when separated households have different views on social media,” he said.
“I have also seen this year the first dispute about the authenticity of a photograph, with one party stating that it was AI-generated. I foresee this as a major issue as the authenticity of photographs and videos was previously never really challenged.”
Safety risks
Bartal said digital safety and privacy was also an important consideration in cases involving domestic violence.
“If a client is considering or planning a separation and there has been any domestic violence, I might suggest they check their phones, iPads and laptops for location sharing, and we go through how to turn this off,” she said.
She also suggested clients set up a new Apple ID, if they had Apple devices, because their old ID might allow “text messages, phone calls, and voicemails to be seen and accessed across several devices”.
“Making sure they sign out of email and social media accounts every time and change their passwords [is also important],” she said.
“If worried, you can create an entirely new email address for communication with your lawyer.”
As for social media accounts, such as Facebook, Bartal said she might recommend clients “limit who can see posts and change privacy settings” as well as “asking friends, especially new partners, not to ‘tag’ them in posts”.
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