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The Law and You: Social media during Christmas holidays

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Social media, including Facebook, Twitter and Instagram, are fabulous ways for separated families to stay in touch.

So is Skype, including on special days when children can’t be with both parents. However, technology is only wonderful when used in the right way. Technology can quickly become problematic when couples who are separating say or do things on social media that are inappropriate — things they may later regret.

Here are tips on how to handle social media when you’re going through an emotional separation.

Can I use social media to negotiate childcare arrangements?

It’s best not to. Excitement levels rise at Christmas and during holidays. Emotions can run high and disagreements over child arrangements are common. Negotiating through social media is problematic because it’s easy to let off steam and vent your feelings by posting content you’ll later wish you hadn’t.

It’s best to discuss child arrangements by email or by text, always ensuring that your communication is respectful and child focused. Emails or texts are a good record of what was agreed if there is ever a dispute later on about what was arranged.

Can what I post on social media be used in Court?

Yes, it can. Be careful. Don’t vent your feelings through social media.

Negative comments posted on the spur of the moment, where one party in a relationship has a knee-jerk reaction and vents about the other party, can have long-lasting and negative effects on your Family Law case. The same applies to photos posted.

What if I regret what I’ve posted? Should I just delete it?

You can delete content, but remember that the post, photo or comment may have already been read, printed and/or saved by another party. This can be used as documentary evidence in the Family Law Courts and in the Magistrates Court in any domestic violence proceedings. Judges usually pay close attention to texts, emails and social media comments when reviewing material for a case.

Can I use a social media post to apply for a Protection Order?

You can apply for a Protection Order from a Magistrate in Domestic Violence Court if you’ve received threatening, abusive or harassing messages by text, email, Facebook, Twitter or Instagram. Never make any negative comments about an ex-partner on social media.

What is the time limit on a social media post being used in Court?

There isn’t a time limit. Social media content can be used in Court proceedings even years later.

Can I comment on my Court proceedings on social media?

It’s an offence to do so and you can be punished by up to one year in prison. You might think you’re posting something harmless about Court proceedings or about evidence your ex-partner gave in the witness box, but Section 121 of the Family Law Act makes it an offence to publish contents of Court proceedings that identify a party or any child involved in Family Law cases that are before the Court.

Can a Judge order references to Court proceedings to be removed from social media?

Definitely. There have been cases in Australia where Judges have ordered a parent to remove all references to Court proceedings made on Facebook, and made additional Orders preventing that parent from publishing other details about the Court case on any social media platform. In some cases, Judges have referred the parent who posted to the Australian Federal Police for investigation and possible prosecution.

Should I just double check my post before hitting send?

The primary rule is to avoid posting anything about your ex-partner or your Court case on any social media platform. And never post anything derogatory, abusive or harassing about your ex-partner or their family or friends. Avoid a public brawl with your partner at all costs, remembering that what you say and do can be used in Court.

Counselling with an expert, such as a trained child psychologist or social worker, is a great way to seek a compromise. Always try to ensure that your communication is respectful and polite and that it is a balanced compromise that takes everyone’s needs into consideration. 

Always feel free to source expert Family Law advice from your family lawyers. This will help you better understand your rights and where you stand during a relationship breakdown.

This expert column was prepared by Debra Parker, Partner, Watts McCray Lawyers Canberra.


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