Pause Before You Post

By Gary Yan

In the digital era, it’s become common practice to share details about our personal lives online. Whether it's Instagram, Facebook, or TikTok, many of us engage daily with multiple social media platforms. While these tools are a great way to stay connected with family and friends, it's important to remain mindful of the potential consequences of oversharing online, especially during a separation.

What many people don’t realise is that in Australia social media content can be used as evidence in court. In other words, if your family matters end up in court for any reason what you have posted online can be used as evidence to support the other party’s case in court (and potentially influence any experts involved in the case or perhaps even the Judge).

Whether it’s content you’ve posted yourself, or something you’ve been tagged in, digital evidence can be used to demonstrate aspects of your character, activities you’ve engage in, or even your capacity as a parent, whether it is an accurate portrayal or not.

Let’s us now look at how social media can be used as evidence in two types of matters.

Spousal maintenance and child support:

After separation or divorce, one party may be required to pay spousal maintenance or child support to financially assist their ex-partner and/ or child. If that person fails to make a payment – or claims financial hardship – but posts to social media showing new assets acquired, or expensive holidays taken, this type of content can be used to challenge someone’s financial position.

Children’s arrangements:

When determining parenting orders, what’s deemed to be in the ‘best interests’ of the child is always the paramount consideration. Therefore, any type of post that could create questions around a party’s ability to adequately care for children or provide a safe living environment, could impact the determination of custody agreements and visitation privileges. It is also not uncommon for posts containing commentary about the separation to be used so parties should avoid venting their frustrations about the separation online.

Things can very easily be taken out of context on social media, so regardless of whether you’re experiencing a bitter breakup or an amicable au revoir, play it safe and keep your thoughts and feelings offline during a separation.

It is also important to note that under section 121 of the Family Law Act, it’s an offence to publish any account of your court proceedings that can identify a party to the proceedings. This is punishable by fines or even imprisonment.

If you have concerns around anything your ex is posting online, you should inform your family lawyer immediately.

Navigating separation or divorce is undoubtedly a complex and emotionally challenging time. While it can be tempting to turn to social media to vent, reflect and seek support, the digital realm should always be approached with caution.

Gary is an accomplished family lawyer and skilled litigator, dually qualified in Australia and the UK, and is a partner at Coote Family Lawyers.

www.cootefamilylawyers.com.au