Social media, in its various platforms, including Facebook, Instagram and Snapchat has pervaded and arguably intruded in all facets of modern life in Australia.
Indicative of this, a recent report by social media tracking website SocialMediaNews.com.au finds that, out of an estimated population of 25 million, 60% of the population are active Facebook users with 9 million active users of Instagram and 6.4 million Snapchat users.
While these platforms provide users with an incredible ability to network, share stories and keep in touch with one another in real time, social media has also both empowered and provided a platform for those with ‘an axe to grind’, allowing them to vent to a wide audience easily and quickly.
Social media posts as evidence
In the context of Family Court proceedings social media is now a key source of evidence, providing an insight as to the nature of relationships with everything posted or sent by an individual, including private messages on platforms such as WhatsApp, the subject of close scrutiny.
Furthermore, posts and messages containing negative and critical comments about a spouse during the course of Family Court proceedings can not only be used against a party in court but can be detrimental to progressing a matter towards resolution.
In Lackey & Mae [2013] FMCAfam 284 Federal Magistrate Neville, as he then was, referenced social media use finding that:
“An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of ‘social media’. While it can be used for good, often it is used as a weapon, either by one or both of the parties, and or by their respective supporters. It is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore for (invariably incriminating) “evidence” to be used in litigation…”
and that some posts are:
“Often, they are very cowardly, because those who ‘post’ such derogatory, cruel and nasty comments (regularly peppered with disgusting language and equally vile photographs) appear to feel a degree of immunity; they think they are beyond the purview or accountability of the law…”
Think carefully before posting
Social media and messaging platforms have brought everyone closer together and are an excellent way to engage with friends and family; however, it is important to remember that anything you post on these platforms can be retrieved and is potentially there forever and could be used against you.
In light of the observations of Federal Magistrate Neville and subsequent case law, if you have any doubts about the material you intend to post or the message you want to send, and if doing so could have negative consequences in Family Court proceedings, perhaps you should reconsider or seek the advice of a family lawyer first.
Contact Culshaw Miller Lawyers today for more information.
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Want to travel with the children overseas?  If you have or are seeking parenting orders however, you might want to double-check a few things before making any sure-fire plans, otherwise you could find yourself in hot water and potentially facing a criminal charge. Section 65Y of the Family Law Act 1975 makes it an offence to take or send a child from Australia if that child is subject to a parenting order dealing with: where a child lives; when a child spends time with a person; when a child communicates with a person; or when a person has parental responsibility … Continued

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With the recent amendments to the Marriage Act 1961 (Cth) which see same sex marriage legalised in Australia, it is an opportune time for same sex couples to review and update their Wills or make a Will if they do not already have one in place. In Western Australia, sections 14 and 14A of the Wills Act 1970 (WA) provide that: 1. marriage revokes your Will; and 2. a divorce order or annulment granted after 9 February 2008 revokes your Will unless your Will is specifically drafted in contemplation of that marriage or divorce. As the law in Australia has … Continued

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Wills predominantly deal with the financial side of your affairs, but did you know your Will can also make provision for the care of your child or children upon your death? In Western Australia, a parent or legal guardian of a child may by Will appoint a testamentary guardian for a child or children under the age of 18 years. Children under 18 are often referred to in Wills as ‘minor’ or ‘infant’ children. The guardian is a ‘testamentary’ guardian because the guardian is appointed by Will which is a testamentary document. The appointment of a testamentary guardian only takes … Continued

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Thorne & Kennedy [2017] HCA 49 is a decision of the High Court of Australia whereby a Binding Financial Agreement, or ‘pre-nup’, was set aside. So what good are pre-nups if they can be set aside? To answer this question, it is important to understand the background to Thorne & Kennedy. In this case, the parties met on the internet in 2006. Ms Thorne was 36 years old, with no substantial assets, and at the time lived in the Middle East. By contrast, Mr Kennedy was 67 years old and held assets with a value of approximately $18 million. In February 2007 Ms … Continued

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The child’s best interests Cases in which the Family Court has to determine whether a parent can move away with a child are referred to as ‘relocation cases’. However, there is no specific class of case or any law which specifically deals with relocation issues. Like all parenting orders, the paramount consideration for the Family Court in considering a parent’s application to relocate with a child is the child’s best interest in all the circumstances. In determining same, the Family Court must have reference to the principles and objects of the Family Law Act 1975 (Cth) (and/or Family Court Act … Continued

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Parenting Plans It is often a priority for separating parents to resolve the future care arrangements of their children. Parenting plans are documents that record the care arrangements of children, which parents will often sign and date. They are useful documents, and for many are enough to allow them to move forward with their lives. What most people do not realise however is that parenting plans are not legally binding documents. So what does this mean? The reality is parties of parenting plans are not bound by law to follow them in the same way that they are obligated to … Continued

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You have separated from your partner, and discovered the property you resided in together and purchased during your relationship is registered in your former partner’s sole name. Can lodging a caveat protect your interest in the property and prevent your ex from selling it? What is a caveat? In Western Australia, caveats may be registered against a property’s Certificate of Title to prevent certain dealings in the land. It may also notify members of the public of the caveator’s interest in the land. The individual, company or entity lodging it is called a caveator. What does it do? A caveat … Continued

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The Attorney-General for Australia announced on 25 October 2018 that the Federal government will be amending the Family Law Act 1975 to enable de facto couples in Western Australia to ‘split’ their superannuation entitlements in property settlements following a separation. This is welcome news to the Family Law Team at Culshaw Miller Lawyers who have long been concerned about the inequity of the current legislation to separated de facto couples in WA. Currently, unlike separated de facto couples in other States, separated de facto couples in WA are unable to split their superannuation entitlements to achieve a fair and equitable property … Continued

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Can video recordings be treated as wills? The Supreme Court of Queensland recently ruled that a video recording can be a valid will within the meaning of S18(2) of the Succession Act 1981 (QLD). It has long been established that a valid will needs to be in writing, signed by the will maker and two witnesses at the time of making the will. The will maker must also have the mental capacity at the time of making the will to understand the nature and effect of the will.  The will maker and witnesses must be over the age of 18. … Continued

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Statements made by a party to third parties or government organisations (most commonly Centrelink, the Australian Taxation Office and the Department of Immigration) which contradict their evidence to the Family Court may not be fatal to their application for a finding of de facto relationship status. Put simply, telling someone you’re in a de facto relationship doesn’t mean you are (and vice versa). This situation arose in Benedict v Peake [2013] FCCA 332 when a de facto wife who had previously asserted to Centrelink and the Australian Taxation Office she was not in a de facto relationship now sought to … Continued

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