Facebook - She said what??
Are you one of the 17 million Australians using Facebook? Have you ever vented on Facebook in a moment of anger or frustration? Be warned - your electronic communications can be readily accessed and used to your detriment in the Family Court.
Social media platforms are public forums and, depending on privacy settings, whatever a person shares on social media forms part of the public domain and can often be accessed by anybody at any time.
Quite often, electronic materials such as phone records and Facebook posts are produced to the Family Court in an attempt to show a person’s pattern of behaviour or perhaps to prove or infer certain events have happened. In a recent parenting case, the Family Court accepted photographs posted on social media as evidence that the father had breached an Order of the Court. The father was ordered to keep his child at his home during his contact time with the child. The father thought he could get away with taking the child to the beach and (foolishly) posted a photograph on social media of him and his child enjoying the beach. A mutual friend of the mother and father saw the photograph online, printed it, and it was accepted by the Family Court as evidence of the father’s breach of the Orders.
More recently, a woman was granted a divorce in a Taiwanese Family Court after proving that her husband had read and ignored her text messages. The woman had sent her husband multiple messages through Line (a messenger application similar to WhatsApp) over a period of six months. Line sent the woman ‘Read’ indicators once the husband had received and opened the texts. The woman successfully relied on the ‘Read’ indicators as evidence that the husband had read the messages sent by the wife, and intentionally ignored them.
Fear not, there is an upside to using electronic communication means in Family Court proceedings. The Courts, in recent cases have allowed service of documents via Facebook, and other electronic means, in their willingness to keep up with commercial and technological developments. Typically, when you file a document in the Family Court, you will need to serve a copy of that document on the other party involved in the proceedings. Service is ordinarily done by hand, by post, by email or through a lawyer. However, in a recent case, the husband was avoiding all attempts by the wife to serve Family Court documents on him. The wife provided evidence to the Court showing the husband was active on Facebook. The Court ordered that the wife have permission to serve documents on the husband through his Facebook account.
In a similar case, a man successfully served a document on his former partner through WhatsApp. Once the man saw the ‘blue double tick’ on the chat, indicating that his message had been ‘Read’, the man took a printout of the chat, and submitted it to the Court as proof of service. The Court accepted it.
So it is clear that the use of electronic communications in family law proceedings presents both risks and opportunities. But what should you do to protect your privacy and prevent others from trawling your electronic communications?
We suggest the following:
- Passwords – make sure that you are the only one with access to your account/s.
- Privacy settings – have you checked to see who can see your profile on Facebook or other social media forums?
- Connected devices – is your device linked to another device? Can somebody else access your private electronic information?
- Presume that every communication you make will be admissible in Court.
- Do not send communications in a moment of anger or frustration.
- Consider going offline during Family Court proceedings or difficult times.