People use social media for many reasons like making more social connections, learning new information and expressing themselves. Given the relative ease of both using and accessing social media, it is not surprising that information from these platforms is increasingly introduced as evidence in family law proceedings. However, it is perhaps this very issue that makes us take our own behaviour for granted.
When it comes to using social media as evidence in your court case, we always recommend proceeding with extra care and caution. On one hand, it does indeed the potential to be helpful to your case. On the other hand however, it can also affect you in unexpected ways. This make it really important to weigh up all of the “pros and cons” first, before going any further.
Introducing social media and online communication as “evidence”
In family law proceedings parties may present “documents” as evidence to a judicial officer by annexing (i.e. adding them) them to an affidavit or tendering them in a Family Court hearing.
Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including (amongst other examples):
- anything on which there is writing; and
- anything from which sounds, images or writings can be reproduced with or without the aid of anything else.
Naturally, any content from social media – such as Facebook, Instagram, Snapchat, LinkedIn, Twitter, WhatsApp, Youtube and Pinterest – can easily fall within this definition.
Note that the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth) each set out their own ways that social media can be used as evidence. While they contain slightly differently wording from one another, they are not substantially different. Even so, this is not the only issue you need to consider when deciding whether to use social media as evidence in your family law matter.
1. All evidence must be relevant
For “social media” content to be admitted as evidence, it must be considered by the Court. Generally this means that the content in question must be something that relates to the probable existence of a fact in your case.
Because of this it is important to remember your overarching case theme when considering the introduction of any evidence. Always ask yourself:
- Does the evidence relate to the issues in dispute?;
- Does the evidence support your claim?; and
- Is the evidence persuasive enough to advance your claim?
If the answer to these any of these questions is “no”, the evidence is not sufficiently relevant.
2. The Family Court has a broad discretion
Pursuant to Section 69ZT(1) of the Family Law Act 1975 (Cth), the Family Court has a broad discretion to exclude the effect of standard rules of evidence in child related proceedings.
Much of social media is hearsay and opinion. This would render social media material into objectionable evidence were it not for the existence of this broad discretion.
Therefore, the Family Court may or may not decide that it is appropriate to apply and enforce these standard rules of evidence where:
- It is satisfied that the circumstances are exceptional; and
- It has considered any relevant matters, such as:
3. The weight given to evidence may vary
Pursuant to Section 69ZT(2) of the Family Law Act 1975 (Cth), the Family Court may assign appropriate weight to evidence that is now “in” as a consequence of the standard rules of evidence not applying. Case law demonstrates several instances where otherwise objectionable evidence is admitted. Despite these instances, the Family Court will still be cautious about how much weight to attribute to any given piece of evidence.
If you are still considering using social media as evidence in your matter, then we also recommend keeping some of the following things in mind during your decision making process.
i) Less is more
Isolate and adduce the most effective evidence. The Family Court should not have to search for the needle in the haystack. Compelling evidence should not be buried in a bundle of unsorted printouts. Judges do not appreciate reading reams of text messages or Facebook posts, only to find them irrelevant.
ii) How did you get it?
The source of the information can be just as important as the information itself. Illegal or improper access of information can lead to criminal sanctions. For example, any social media material that you obtain in a questionable manner may leave you open to serious allegations that can undermine your case. These include stalking, cyber hacking and/or harassment.
That being said, the Family Court has discretion to allow evidence which has been illegally or improperly obtained. This is in cases where the desirability of the evidence outweighs the undesirability of the manner in which it was obtained. A common example is a covert voice recording that contradicts carefully groomed social media posts.
iii) Nothing is private
Do not say or do anything that you wouldn’t want tendered into evidence and viewed by a judge. Privacy settings on your social media are of little consequence to family law proceedings – you should expect all activity to enter the public domain.
iv) Check yourself
If you don’t have anything nice to say, don’t say anything at all. It is important to keep in mind that material posted on social media platforms can result in other proceedings. These can include defamation proceedings or violence restraining order proceedings.
You should also be aware of any confidentiality surrounding your proceedings. This is because family law legislation imposes a restriction on the publication of court proceedings. In short, there’s no upside in blogging about your court hearing!
v) Be mindful of your supporters’ activity
The online conduct of your family, friends and supporters can play a significant role in family law proceedings. If your friend or family member is a witness, their behaviour can impact your case too. For example, they may become less credible if their social media posts reveal any information that could bias their tendered evidence for your case.
vi) Respect for authority
The Family Court is protective of its own processes, judicial officers, support and administrative staff. Criticism of the Family Court or boasting about how to beat the system is a disastrous strategy for family law litigants.
vii) Fix it
If any there is any existing social media that could have a potentially adverse inference against you, you should make efforts to mitigate them. Some ways to do this includes:
- refraining from such behaviour in the future;
- acknowledging that you have learnt a lesson; and/or
- apologising and reconciling with the other party.
The Court generally encourages parties to rectify any of their unfavourable behaviour. However, we still recommend seeking legal advice before deleting any social media material. This is because major issues can arise from the destruction of any material that could be classed as evidence.
viii) To disclose or not to disclose?
It is important to consider and seek legal advice as to whether your disclosure obligations extend to social media material. Remember rules in relation to relevance apply.