Can social media be used as evidence in family law? 

Family law legislation in Australia prioritises the welfare of children as the ultimate consideration. This means that generally, social media posts that relate to the issue of a child’s welfare are likely to be accepted as evidence in court proceedings. 

The role of social media 

Social media posts are increasingly being used as evidence in family law proceedings. Sometimes such posts can be used as evidence which can be useful, particularly as proceedings are generally one parties’ word against another’s. 

One study found that 82% of social media evidence was accepted when it was raised in Court. 

Posts on social media, as well as comments, videos, and photographs are all potential sources of evidence in court proceedings. One study done on the admissibility of such evidence found that in the Federal Circuit and Family Court of Australia, 82% of social media evidence was accepted when it was raised in Court. 

Examples of social media posts in family proceedings

Some examples of social media posts that may be used as evidence in court include: 

• Social media posts referencing court proceedings, a children’s lawyer, or police (which could be used to prove breach of section 121 of the Family Law Act by one party)
• Defamatory or belittling posts about an ex partner
• Screenshots of private messages on Instagram or Facebook, or other messaging platforms
• Other posts that may raise concern about a child’s welfare. 

The purpose of using social media posts as evidence in family court proceedings are varied and depend on the issue being disputed in the proceeding. For example, social media posts can be used to: 

• Evidence of infidelity or misconduct of one party 
• Evidence that a party partakes in a certain activity 
• Evidence that a party experiences mental health problems
• Evidence that a de facto relationship existed or did not exist 
• Evidence that there is a history of domestic violence in the family and therefore that the child would not be safe in the relevant party’s custody
• Raise doubt as to whether a party is able to adequately care for a child properly
• Support a party’s claim regarding habits that would be detrimental to a child’s welfare, such as drug use or excessive alcohol use

Such posts could even be used to more generally prove a party’s character and integrity. All this could be extremely relevant to a family law proceeding and could dictate the outcome of a case. For example, evidence of a post degrading an ex partner may go against the assertion that co-parenting is in the best interests of a child. 

Key take away lessons

Because of the increasing reliance on social media posts as evidence, it is important to remember that any picture, video, or other media posted on social media could prove detrimental to a case. Hence, if an individual is experiencing a relationship breakdown they should abstain from making any negative comments about their partner or disclosing any personal matters related to their family or child online. 

This also extends to parties that are currently in the midst of court proceedings. Section 121 of the Family Law Act makes clear that publishing ‘to the public or a section of the public’ any media that would identify a party to court proceedings, or someone related to a party, is prohibited. 

Breaching section 121 of the Family Law Act means that a court may refer a party to the Australian Federal Police. Being convicted of a crime under section 121 means that a party could be imprisoned for up to twelve months. 

If you need any assistance regarding evidence for a family dispute please feel free to reach us via the contact form.