Use of social media and audio recordings in family law cases

Social Media

In a recent interview on ABC Radio, the Chief Justice of the Family Court of Australia accepted that in many cases, parties seek to rely upon Instagram and Facebook snapshots or printouts, and other forms of social media as evidence in Family Court proceedings. The reliance upon this type of evidence is becoming more popular and prevalent, especially in custody disputes.

This type of evidence can be relevant in a number of ways.  For example, Facebook posts showing where people are at any given time or whether they are in another relationship are examples of social media being used as evidence in Court. Serving people with court documents via Facebook has also been approved in limited circumstances.

Even if you keep your Facebook profile private, it has been ruled in the United States that the information can still be used against you, if you are involved in a legal dispute or get into trouble with the law. A judge in Westchester County in the State of New York ordered that a man involved in a custody battle with his ex-wife was allowed to access her private Facebook account and submit evidence from it to the court. It will only be a matter of time before that evidence is admissible in Australia.

Whilst people have a reasonable expectation and right to privacy, and the right to expect that any information they post on a private or closed social media network to remain private, this does not give you a guarantee of privacy, whether you store information in Facebook messages, Twitter Direct Messages, in your email or in a cloud service like DropBox or OneDrive.

A major aspect of a child custody dispute is the safety of the child and how a parent’s lifestyle may affect the child’s well-being.  How you conduct yourself on social media channels can hurt your case. Many lawyers and their clients will search your Facebook status or other social networking sites to try to obtain evidence in your case.  When people are on the internet, and no one is watching them, they have a false sense of anonymity that does not really exist; in reality they are posting their private life over the entire cyber-world.

Audio recordings

Each State and Territory in Australia has separate legislation relating to the legality and possible use of video and audio recordings.  Most State and Territory legislation is consistent in its wording. Ordinarily, it is unlawful to record private conversations without the consent of the parties to that conversation.  It is the exception to the general rule that is normally argued and is normally relevant when the Family Court is asked to admit evidence of that nature.  The exception provides for the use of listening devices to record a private conversation if it is reasonably necessary for the protection of the lawful interest of that party.  The Court is asked to determine the desirability of admitting the evidence if it outweighs the undesirability of the way it was obtained.  This is especially so when the issue of family violence is involved because it is notoriously difficult to obtain evidence of family violence which takes place behind closed doors.

The Court is often asked to weigh up the pros and cons of admitting such evidence when in some instances the environment may have been manipulated to induce various reactions from one party or another, which is then recorded in conversations.  The possible unfair prejudice, as a result of the emotional impact of recordings, is also to be taken into account.  The Court must determine the best available evidence and what weight is to be placed on that evidence.  This is especially so in child-related proceedings where the overriding principle is that the Court must make decisions that are in the child’s best interests and therefore, even if evidence has been unlawfully obtained, it may still be admitted into evidence if it has probative value.  It is often the case that the probative value of the evidence is significant especially if the admission of the evidence is not going to be unfairly prejudicial to the other party.

Ben Farmer