Not so long ago it might have been the case that the greatest risk associated with a big night out, or a verbal barrage towards your ex, was the later regret when shown the photos or reminded of what you said the next day. But a ‘dancing on the table’ photo or a reminder about what you said to your ex-partner can be a lot less damaging than giving evidence in the witness box in the Family Court, particularly if you were caring for your children at the time.
However, with an increase towards online and electronic forms of communication, the material can easily become available to a party to family law proceedings. If that person is upset, angry, or intoxicated, new forms of evidence are now being taken seriously in the Family Court. Potential litigants need to be more careful than ever not to do serious prejudice to their case.
A number of recent Family Court decisions have dealt with evidence from Facebook. In one recent decision, the Father sought that the mother and child be returned from New Zealand to Australia. However, because the Father had said to the Mother on Facebook that he agreed the child should live with her, the Court refused the Application.
In another case, the Father was ordered to keep the child at home during contact visits. He took the child to the beach. He was then photographed with the child at the beach, and the photo was immediately uploaded to Facebook. A mutual friend (but evidently a better friend of the mother’s) printed the photo and the Father was later found to have breached those Orders.
It is becoming increasingly common for one or both parties to abuse or denigrate the other using their Facebook ‘status’, or ‘Tweet’ their frustration about the other’s lack of parenting skills or unwillingness to be reasonable. As family lawyers, we welcome such errors of judgement if made by the other side but lament such decisions by our own client.
In parenting matters, the Court takes into account the extent to which each parent is able to promote and encourage the other parent. Comments like, ‘OMG he is such a loser’ and ‘LOL what an idiot’ are not indicative of positive and co-operative parenting relationships. It can be very difficult to ‘undo’ the damage of posts like that. The ease and speed with which Facebook, Twitter, SMS and e-mail can be accessed mean that correspondence is exchanged rapidly and in times when parents may have a high degree of conflict and acrimony.
Often the party who can compose themselves and resist the urge to criticise the other in the initial period of separation or disagreement finds themselves with a head start.
There are some upsides as well. The other use of Facebook to date is as a vehicle of service. In numerous recent Child Support disputes, parties who have no fixed address, or may be fleeing a violent partner, were also avid Facebook users. If satisfied that a person is very likely to see the documents, the Court can make Orders that instead of that person being served via Process Server, electronic transmission of the documents or a notification to the Facebook account is sufficient. This is particularly relevant when a party disputes paternity or where one party is ‘hiding’ and avoiding service.
In cases where one party wants to relocate with a child to live interstate or overseas, one significant hindrance previously was that the only method of communication available to the other parent was telephone. For young children, visual communication is considered particularly important. The prevalence and increased mainstream use of webcam and Skype has led Courts to determine that a relationship between a young child and the non-relocating parent can be maintained notwithstanding they will have little face to face contact. As such, it is now possible for some parents of young children to move away from the other parent, when they previously might not have been able to.
The emergence of online communication and its extension to online posts of photos and videos presents both traps and opportunities in family law proceedings. Giving consideration to the risks and benefits of new technology can be vital.
BTW, so u r not stuck in an ‘omg’ situation, c Ann or 1 of the other lawyers at FGD for gr8 advice about Facebook and ur other family law issues.
Published in B2B Canberra, issue 61 2011
