Social media in the family law sphere: friend or foe?
Advocates of these social media platforms champion the benefits of such online tools for facilitating parties to communicate in a more convenient way, and allowing the instant exchange of news, pictures and conversations.
However, there are difficulties in regulating this industry, particularly where the appropriate jurisdiction for enforcement is impossible to identify, as it often is in the context of online entities. The difficulties in regulating the content on social media sites is abundantly apparent in family law proceedings, where relationships between parties are inevitably strained and dirty laundry aired publicly.
Diana Bryant, the Chief Justice of the Family Court of Australia, spoke of the need for more stringent government controls on social media, whilst addressing the 15th Annual Family Law Conference in Hobart last month. Ms Bryant noted that there are YouTube videos, available online right now for anyone to view, depicting parents manipulating their children. It is obvious that such use of social media is contrary to any child’s best interests. Unfortunately, without further intervention, there is little that can be done to prevent this kind of interaction ending up in the online stratosphere.
It is therefore important for parties to family law proceedings to consider any detrimental impact their social media footprint will have, not only on other parties within their family relationships, particularly children, but also their interests in any matter before the Court. The courts are now more willing than ever to allow social media communications to be put forward as evidence in family proceedings.
For example, in the matter of Gilkes & Lenton1, Federal Magistrate Phipps reviewed evidence of Myspace communications between parents and concluded that the mother’s communications did not reflect a relationship of mutual respect and minimal conflict. This evidence contributed to the Federal Magistrate’s reasons for refusing to grant an order for the child to spend equal time with each of the parents.
In Bolton & Whittaker and Anor2 , a mother’s unwillingness to identify her child with the correct paternal surname was made clear to the court when her Facebook activities were revealed. The court considered that this type of behaviour was not encouraging a positive relationship between the parties.
Further, in the recent decision of Xuarez v Vitela3, a mandatory injunction was issued that required a father to remove material from his website that referred to family law proceedings he was involved in, including the names of parties and other identifying material. The father also published the names, and in some instances photographs, of legal representatives under a list of so-called “corrupt legal professionals”. In granting the injunction, Forrest J noted the “particularly insidious” nature of the material, given that it was published on the internet and remained accessible to anyone, anywhere at anytime. Forrest J noted that publication of material online is quite different to publication of material in a one-off publication.
In response to increased concerns about the regulation of social media platforms, a working group has also been established by the state Attorney-Generals to examine the impact of social medal on a person’s ability to have a fair trial. Issues of regulating the industry will inevitably be canvassed in this review and may assist the family law community to develop appropriate mechanisms to deal with this issue.
We recommend that parties involved in any type of family law dispute carefully consider what their online identity may reveal about them, as it is likely that evidence of social media communications will continue to take on even more importance in the Court, as the public continues to embrace modern communication platforms.
Barry.Nilsson. Lawyers has embraced these social networking programs and we encourage you to contact us if we can assist you navigate the online landscape in your family law matter.
Apart from the obvious risks associated with social media in a family law environment, there is also a number of other legal risks associated with using social media in our everyday lives.
Barry.Nilsson. Lawyers Special Counsel and resident social media risk expert, Megan O’Rourke, says that despite its many virtues, social media has opened the door to a wide range of legal risks. “As the numbers of people who share information and work online increases, so do the number of incidents involving significant personal and financial damage”, O’Rourke says. Those examples include reputation damage, defamation, copyright infringement, workplace disputes (including wrongful dismissal claims for ill-advised posts), breaches of confidentiality and regulatory infringements and fines. There have been a number of cases in the last 12 months for instance where employees have been sacked for posting inappropriate comments about their jobs, even when those comments were made from home. “One of the keys to mitigating your exposure is to take the time to understand that once you post your information is out of your control no matter what your privacy settings. Social media is a tool that remains largely unregulated and controlled by companies such as Facebook and Google. So once you put your information out there, it’s almost impossible to get it back”.
1  FMCAfam 775
2  FaamCA 286
3  FamCA 574