The use of evidence obtained through various social media outlets has become a feature in many Family Court proceedings around Australia. Evidence of private conversations, photos, videos, shares and other social media activity we almost all engage in has found its way into the realm of admissible evidence.
Unfortunately, most people do not understand the potential repercussions of placing their life, private affairs and images in the public arena. We will explore the impact of social media as “evidence” and provide insight into the admissibility of this type of evidence in Western Australia.
Admissible Evidence in Family Law
Family law proceedings allow parties the opportunity to present “documents” as evidence to the judicial officer through tendering it to the Court. Judicial officers may then decide how to weigh evidence that has been admitted; whether to give any weight to normally inadmissible material; and whether to direct the parties to provide particular evidence.
Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including (amongst other examples):
- anything on which there is writing; and
- anything from which sounds, images or writings can be reproduced with or without the aid of anything else.
Given this interpretation, content from social media such as Facebook, Instagram, Snapchat, LinkedIn, Twitter and WhatsApp could be regarded to be within this definition.
Note that the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth) each set out their own ways that social media can be used as evidence. Beyond merely satisfying the definition of an admissible “document”, there are further limitations to the potential admissibility of evidence. They are:
- Judicial Discretion
- Varying weight given to the evidence
The starting point for any evidence is that it must be RELEVANT. That is, the social media content must be considered by the Court to be something that relates to the existence of a fact in your case. Broadly, relevant evidence will relate to the issue in dispute, support your claim and be able to advance your claim. If any of these fails, it is unlikely to be considered sufficiently relevant.
The Family Court has a broad DISCRETION, pursuant to Section 69ZT(1) of the Family Law Act 1975 (Cth), to exclude the provision of ordinary rules of evidence to child-related proceedings. This discretion essentially allows courts to render social media evidence, which would otherwise likely be deemed hearsay or opinion evidence, to be admissible.
Weight of Evidence
Despite being admitted, social media evidence may be attributed the WEIGHT a judicial officer sees fit pursuant to 69ZT(2) of the Family Law Act 1975 (Cth). Recent case authority has shown that it is likely that the Family Court will be cautious when attributing weight to social media content given the nature and reliability of this type of evidence.
Although social media may be considered admissible evidence, the ability of a party to admit this evidence may be limited by the varying rules of evidence and judicial discretion. Carter Dickens Lawyers would advise parties to protect themselves by limiting social media which may be relevant to their proceedings.
In addition, parties should note that it is an offence to publish any images or posts which identify a party or child to family law proceedings (Family Law Act 1997 (WA) s 243; Family Law Act 1975 (Cth) s 121).
If you have a Family Law matter and social media activity is of concern to you, please contact us on 08 9408 5212 for a free 15-minute phone consultation.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.