Social media, surveillance, and privacy: what is admissible evidence in my family law case?
Queenslanders are increasingly spending time on social media, updating our friends and followers with every detail of our lives.
When it comes to a relationship breakdown, or divorce, it’s important to remember to be very careful about what you say or post online.
Anything you post on social media can be used in court, and if you and your ex are in dispute over property, or custody of any children, your late-night Facebook rant could be held against you.
Screenshots of text messages, WhatsApp messages, or social media posts are routinely appearing now in affidavits.
The key issue is context. A single screenshot of an abusive text from your ex-partner is not going to prove anything. Instead, provide the entire conversation as well as additional evidence such as alerts from your bank, or emails you have received.
Social media evidence that could be provided to a court include:
- Derogatory comments or posts made about or to your ex
- Sharing private and personal information about a family law matter online
- Screenshots of private messages exchanged through Instagram messages, Facebook Messenger and WhatsApp
- Photos of holidays, new expensive assets or other images
- Posts and photos about excessive alcohol consumption, drug use or other criminal activity
- Sharing or posting explicit images.
The judge will decide how much weight to give a particular piece of evidence, so not all social media evidence will be treated equally.
Another danger of using social media in an inappropriate way during family law proceedings, is that you may delete a post, but that doesn’t mean the post is gone. By the time you delete a post, it may have already been recorded by someone and can still be used as evidence even if it is no longer live on the internet.
Outside of court, venting on social media can also damage your relationships with family and friends, and it could hurt your relationship with your children. Your reputation and public image could also be damaged, which may impact your career.
It may also be important to consider your own safety and privacy and check to see whether your location is visible on any social media apps, and think about changing your passwords, particularly if you and your ex shared access to any apps.
If you’re looking to communicate successfully about arrangements for children, there are several apps designed to help separated parents including: 2houses, Our Family Wizard, and Cozi.
What about surveillance?
Some admissible types of surveillance evidence could include CCTV footage, “nanny cams”, doorbell footage, or geotagged photos. In Queensland, you can record a conversation you are a part of, even without the other person’s consent.
However, you cannot record a conversation you are not participating in, and recording someone in a private place without consent is a criminal offence.
Admissibility will depend on how the recording was made, what it proves, and whether any unlawfulness is outweighed by the need to decide the real issue. If there are matters of child safety at stake, the court may look at recordings differently, but presenting this kind of evidence is still risky.
What’s private and what’s not?
Anyone involved in a family law proceeding could be required to disclose information they consider to be personal or private. This includes bank statements, emails and personal diaries. Parenting disputes often require you to provide school records, medical reports and evidence of issues such as substance abuse.
Failure to provide this information could severely impact your case.
Increasingly, perpetrators of domestic violence are using technology – including social media – to stalk or harass victims, which can be raised as a safety concern in parenting orders.
Some tips for using digital evidence include:
- Preserve the Metadata – this helps prove the authenticity of photos or videos
- Use affidavits – if you’re presenting screenshots, put them into an affidavit and be honest about how you obtained them
- Avoid cherry-picking – provide the full context of any messages or emails you have received.
This is a complex area of family law, and you need an expert to guide you through this process. Here at Michael Lynch Family Lawyers, we are experienced in every aspect of family law, and we are up to date with issues including social media use, coercive control, and surveillance and privacy.
Contact Us
To make an appointment with one of our expert solicitors, contact our office today on: (07) 3221 4300 or email: [email protected]
