A quick search of any legal database will bring up dozens of recent cases where the family law system has grappled with social media evidence. For lawyers, this is a clear sign to sharpen their digital know-how to ensure their clients are on the right side of the law.
From rambling Facebook posts, indecent images, and ambiguous emojis, social media has become such a fixture in the Federal Circuit and Family Court of Australia (FCFCOA) that practitioners have reported seeing the digital material in the majority of their cases.
For Hayder Shkara, principal of Justice Family Lawyers, social media has come up in more than half of his matters. While years ago it may have been more scarce, Shkara said lawyers are now used to advising their clients to be “cautious or wary” of their online activity.
“There’s more education out there because lawyers have seen it come up in cases, and they don’t want to be there with their clients when it comes to cross-examination and pictures from social media are being put to them,” Shkara said in conversation with Lawyers Weekly.
Shkara explained he has seen some “pretty crazy things” – including videos shared over platforms like Snapchat and WhatsApp – which have “definitely led to a complete change in outcome for a case because, as you can imagine, it’s such high-quality evidence”.
A study from the Family Law Review found social media-related evidence was used in around 82 per cent of cases. Former NSW chief justice Tom Bathurst also reflected on the frequency with which lawyers have been asked about disclosure of social media accounts.
In the “Handbook for Judicial Officers”, posted on the Judicial Commission of NSW’s website, Justice Bathurst pointed to the parenting dispute issue in Marbow v Marbow, where private Facebook messages “were examined to determine whether, and in what circumstances, children should spend time with their mother”.
“Social media evidence may also be relevant in family law proceedings, to prove infidelity or misconduct,” the judge added.
A quick search of AustLII revealed just how frequently social media evidence has played a part in family disputes, addressing everything from credibility determinations to family violence accusations.
In a de facto settlement matter in Irwin & May, the court was taken to a Facebook post that referenced “partners” and included photographs of two people “leaning against each other”. On that evidence, Judge Terry Betts rejected the idea that they were just friends.
In August, Judge Sandy Street went so far as to make orders prohibiting one of the parties from posting “on any electronic platform or on Facebook” about the other. It followed the evidence of an “intimidatory or manipulative” Facebook video recording.
A number of other crucial findings have been made recently based on the way parties have used social media, including the posting of a sexually explicit image in Sutton & Barclay, a Snapchat video featuring abuse of a family pet in Rivett & Lamore, and information shared over social media posts in Tanner & Reed.
With the advent of social media, courts have also needed to grapple with the translation of emojis and other text-based language. In 2023, a Canadian judge found the thumbs-up emoji, and the context it was sent in, was sufficient to validate a binding contract.
In that judgment, Justice Timothy Keene said “the tide of technology” has appeared to be the “new reality” and courtrooms must be “ready to meet the new challenges that may arise” from this material.
Closer to home, in Danniell & Letty, published in April, the judge was told two definitions for the peach emoji: on one hand, it was a “visual reference to anal sex”, and on the other, the “female genital area”. It was not in dispute that the eggplant emoji was for a man’s genitals.
Paired with other text messages – including one that contained a long list of emojis, including a tongue and taco – and a report, Judge Carew made credibility findings against the messages’ sender.
In an FCFCOA judgment published in May, Osborne & Rivers, Judge Amanda Humphreys was asked to impose a condition on one of the parties to restrain them from using emojis. An expert claimed the use of emojis brought “inherent ambiguity” to the communication.
Shkara said it was important that family lawyers have some understanding of the different platforms and how to navigate them because “it is going to come up in proceedings undoubtedly”.
“They will need to have an understanding as to what they are and what the case of it is, how it will work, [and] how the information gets disseminated through the public. They need to have a basic understanding of how it all works,” Shkara said.
As for the advice he passes on to clients, Shkara said the golden rule is: “Don’t post unless you’re ready for a judge to read it.”
“Elon Musk is a prime example of somebody [who] tweets frequently, and he just does it without a filter, and as a result, he’s gotten himself into a lot of trouble. You will be doing the same thing if you take an unfiltered approach to what you’re posting,” he said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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