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Family law and the internet

by | Sep 9, 2021 | Family Law

Internet technologies have had a significant impact on the area of Family Law. The use of smartphones, social media platforms, and internet websites have expanded the types of evidence that parties seek to rely on in Family Law proceedings and the avenues in which evidence is obtained and stored by individuals.

Parties in Family Law proceedings may be able to utilise social media content as evidence in Court. Family Lawyers may also check social media content to check what has been said by their client or by other parties in the proceedings.[1]

This article will explore the practical effects of smartphone devices and social media on the conduct of Family Law cases.

Key Points:

  1. Inform clients involved in litigation that the content on their social media profiles should not contradict the evidence they have put before the Court. Likewise, if possible check the other party’s social media profiles for inconsistencies.
  2. Be careful to identify fraudulent text message screenshots. Ask your client to check that the dates and times match the original texts and look for any breaks between messages that could indicate tampering.
  3. Explain to your client that they are not permitted to post any content on social media referring to their Family Law proceedings.
  4. If your client has an Intervention Order (“IVO”) against them advise them that any provision in the IVO prohibiting stalking also extends to cyberstalking.

Social Media – help or hindrance?

Section 121 of the Family Law Act 1975 restricts the publication of Court proceedings. A person who publishes by any means or discloses to the public any account of proceedings which identifies a party to the proceedings may be guilty of an offence. Upon conviction, a party may be imprisoned for a period of not exceeding one year. The operational efficacy and reach of the provision are increasingly relevant as social media continues to feature in modern litigation. In accordance with section 55 of the Evidence Act 1995, social media’s relevance to a proceeding is determined by its ability to rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.

In Lackey and Mae [2013] FM CA Fam 284, it was found that the Father had denigrated the Court and the Mother by making comments about the proceedings on Facebook. The Father had commented on Facebook posts and provided information to his family and friend via Facebook. The Court deemed that the Mother and children “be protected as much as possible from further insidious and corrosive attacks.” Orders directed the Father and his relative to remove all reference to the proceedings from Facebook. The Father and his relative were also restrained from publishing or otherwise distributing material relating to the proceedings. The Court also referred the matter to the Australian Federal Police for investigation.

In the Family Court, impressions of character and credibility are everything. In most cases, the party who published on social media caused significant damage to their case. Therefore, the Court concluded that the person had failed to consider the children’s best interests or is unwilling to promote a meaningful relationship between the children and the other parent.

In contrast, there are scenarios where social media can act as a helpful tool to verify whether parties are being truthful to the Court or abiding by Court Orders. For example, social media posting can be analysed to work out business relationships, where assets are kept, and what each party has been up to.

The following instances are common:

  • A party is seeking Spousal Maintenance and claiming that they are enduring financial hardship. However, on their social media account the person is posting content of them travelling, dining out regularly, purchasing luxury items, and living a lifestyle that does not reflect that deposed by them on Affidavit.
  • A party is restrained from allowing the children to come into contact with a particular individual and they post pictures on social media which show the child in the presence of the forbidden individual.
  • A party is restricted from travelling with a child without first seeking permission from the other parent, and they then post pictures of the child on social media that evidence the child’s whereabouts.
  • A party advises the Court or the Child Support agency that they are currently unemployed to avoid paying spousal maintenance, child support or to increase their entitlements in property negotiations. However, their LinkedIn profile suggest they are employed and earning an income.[2]
  • A party contends that certain items of property have been misplaced or they are no longer in their possession, and the other party discovers adverts for the sale of the property on “Facebook Market Place” or similar websites.
  • A party advises the Court that their company is no longer operating or making a profit. The other party locates adverts for services on social media and LinkedIn which suggest that the company is still operating.
  • A party fails to attend a Court Hearing and provides an excuse to the Court for non-attendance but then posts their whereabouts on social media which do not reflect the reasons for non-attendance provided to the Court.
  • A party to parenting proceedings denies they are living a dangerous and unsavoury lifestyle. However, their social media content suggests otherwise—for example, pictures taken at a party with drug paraphernalia or alcohol in the background.[3]

In Reiby v Medowbank [2013] FCCA 2040, social media evidence was used to challenge the suitability of a person to parent. Posts on a biological father’s social media accounts, stating that “Coke is always good after a big night of drinking… both the powder and the liquid”[4], were introduced as evidence pertaining to bad behaviour involving alcohol and/or drugs or sex. The Judge made Orders prohibiting the Father from using drugs and alcohol before and during time spent with his daughter. This was on the basis that the posts “indicate a certain recklessness and immaturity on the part of the Applicant”[5].

The child support payment liabilities of a father, being nothing, was investigated against adduced evidence from his LinkedIn profile in Skinner v Cluny [2013] FamCA 301. The Court found that it was irrelevant that the Father was undertaking unpaid voluntary work because his LinkedIn profile indicated his earning capacity was at least $250,000 per annum as a CEO and other employment.[6] The Father’s capacity to meet child support and spousal maintenance was therefore assessed on that income. While high weight was placed on this evidence, it should be noted that lower amounts of money in a dispute may not carry such probative value[7].

In all of the above circumstances, social media can act as a fact-finding tool to verify the information provided by parties to the Court and the other party’s Lawyers. However, parties must be careful in circumstances where a Family Violence Intervention Order (IVO) is in place. Often, IVO’s include provisions that restrict parties from ‘stalking’ the protected person. Monitoring the protected person’s social media accounts may constitute a breach of the IVO, and in more severe cases, it may constitute cyberstalking. Although, whilst this sort of breach may have criminal repercussions (for example the Police may charge the individual with breaching the IVO) in most cases, this will not affect the admissibility of the evidence in the Family Court proceedings.

Smartphones – the invention of the screenshot

Internet-compatible smartphones allow text messages to be archived and saved to ‘the cloud.’ Archived material means parties can access records of conversations that occurred years prior.  For example, screenshots of conversations relating to parenting matters provide the Court with insight into the party’s ability to communicate and co-parent productively. Likewise, screenshots of threats from one party to another or screenshots of parties discussing financial decisions in which they alleged they never knew about or consented to or screenshots between parties agreeing to certain aspects of a property settlement can be very helpful in establishing credibility to a client’s case. It is almost guaranteed that an Affidavit filed in Family Court proceedings will contain annexure screenshots of text messages between the parties.

While screenshots can be helpful, they are not always the most reliable form of evidence.

Screenshots may have the following issues:

  • “They can be easily faked. A screenshot is just a picture: anyone can alter a picture and put some text on it.
  • It may take many screenshots to adequately show a complete messaging history, and there is no clarity as to whether there are gaps between those screenshots.
  • Messaging apps do not show explicit timezone or daylight saving(DST) information.
  • Messaging apps tend to obscure dates. A phone might say a message was sent “yesterday” which is not helpful if it is printed out and shown to someone a week later.
  • Messaging apps tend to group messages together. If several iMessages are sent closely together, an iPhone will only show you when the first one was sent”[8]

Internet Valuations and Financial Disclosure – thank you Google!

The availability of data on the internet has greatly assisted lawyers in researching the current value of certain assets subject to property negotiations. For example, there are a plethora of real estate websites such as realestate.com and onthehouse.com, which provide details of the estimated property value (as of the current date), estimated rental income value, the date that the property was last sold, and comparable sales for properties in the surrounding areas.  As a starting point, it is common practice for a Family Lawyer to do a quick Google search of the client’s properties to ascertain an average value. However, in circumstances where the parties either elect to forgo or cannot afford to obtain a formal valuation, an internet valuation from a reputable website may be instead relied upon for the purposes of negotiations if both parties agreed to do so.

Likewise, when determining the current value of a client’s motor vehicles, websites such as Redbook.com can provide an estimated market value for the exact make, year, and model of a vehicle. Online car valuations are often relied upon by parties engaging in property negotiations or proceedings. Although in circumstances where the vehicle is a luxury car or a rare collector’s item it is best for a formal professional valuation to be obtained.

Internet technologies have expanded the types of evidence relied upon in Family Law proceedings. For example, parties now benefit from utilising social media as an investigative resource, test messages as records of conversations, and online valuations to ascertain real-time market values of assets. However, while these types of technologies can be helpful to support a party’s cases, they can also be highly detrimental to a client in circumstances where they use Social media platforms to vent their grievances about the Court and the other party. Inevitably, the internet will be regularly and readily explored by parties and lawyers for invariably incriminating evidence in litigation.

[1] Simon Creek, www.familylawexpress.com.au  – 26 December 2019

[2] Provis v Wharton [2013] FCCA 1854 at [42]; Skinner v Cluny [2013] FamCA 301 at [15].

[3] Reiby v Medowbank [2012] FCCA 2030; Haddock v Haddock [2013] FCCA 936.

[4] Reiby v Medowbank [2013] FCCA 2040 at [84].

[5] Reiby v Medowbank [2013] FCCA 2040 at [200].

[6] Skinner v Cluny [2013] FamCA 301 at [15].

[7] Provis v Wharton [2013] FCCA 1854 AT [42].

[8] Aiden Fitzpatrick, www.familylawexpress.com.au  – May 30 2020