Can the Court Look at My Social Media Posts?

What you say behind the screen surely won’t impact the outcome of your family law proceedings, right? That may not be true.

A person’s actions on social media, whether their accounts are public or private, whether they post or direct message, can be used as evidence in family law proceedings to their detriment. For example, posts can be used as evidence of infidelity or of drug and alcohol abuse. They can also be used to show that the person enjoys a luxurious lifestyle which can be relevant to a dispute over spousal maintenance. Social media activity can also be used to show inconsistencies between what the party claims in their evidence and their reality, for example, if they claim that they are unemployed in order to lower their child support obligations but their LinkedIn shows otherwise.

Social media can also be used for evidence of contraventions of court orders from family law proceedings. For example, an order may specify that a child cannot see certain people or go certain places and yet, there are Instagram posts showing the child doing this. Such images could be used as evidence to the detriment of the posting parent.

Social media activity can be assessed by the court, even if the account holder’s settings are private. This is because courts have the power to order for discovery of evidence under Part 21 of the Uniform Civil Procedure Rules.

The following cases provide examples of how social media can be used as evidence in family law proceedings:

Reiby v Meadowbank

Ms T Meadowbank and Ms S Meadowbank were de facto partners and the mothers to a two-year-old child. The child was conceived via artificial insemination, using the genetic material of Mr Reiby. In these proceedings, Mr Reiby sought equal shared parental responsibility and an order than he could spend time with the child. However, the Meadowbanks expressed concern around Mr Reiby’s use of drugs and alcohol and used social media as evidence to support this. The court considered Mr Reiby’s various text messages and posts on Facebook and Twitter (now ‘X’) which were included in the Meadowbank’s joint initial affidavit. This included social media statements such as:

• “ … at SplendourInTheGrass … wicked music and atmosphere and of access to the performers only area which led to free drugs and a clean toilet! NB: Splendr or Dys&MisEliza do not endorse drugs taking”
• “Coke is always good after a big night of drinking. I agree. Both the powder and the liquid”
• “Don’t #drinkuntilyoudrop” I vomited before sleeping and continued when I woke up. My body hates me … But I’m happy it pulled through for me”

The court used these social media posts and messages to conclude that Mr Reiby had a “certain recklessness and immaturity”, leading to an order that Mr Reiby be banned from “using illicit drugs, or alcohol to excess, for a period prior to and during all times when [the child] is in his care.”

Cygnis and Cygnis

In this case, Mr Cygnis and Ms Cygnis had two children. Ms Cygnis had sole parental responsibility, but Mr Cygnis sought time with the children. Social media was part of the evidence in this case as screenshots from Mr Cygnis’ posts were included in Ms Cygnis’ affidavit. Mr Cygnis’ actions on online, including politically and religiously controversial posts and messages, were taken into account (among other factors) when determining whether the children should be allowed time with him.

Marbow v Marbow

This was a case in which the parties agreed that the children would live with the father, but have time to visit their mother. The main question for the court was the time and circumstances in which the mother should be allowed this time. Facebook activity and messages were used by the father as evidence of the mother’s alcohol abuse, which factored into the decision on the terms on which the mother would get to spend time with the children.