On today’s show host and accredited family law specialist Benjamin Bryant chats with family law barrister Rhys O’Brien about the hazards of mixing social media and family law. Together they cover topics including:
The overriding outtake in this episode is that you should steer clear of social media throughout your separation and divorce proceedings!
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Benjamin Bryant: Welcome to episode eleven of the Family Matters show podcast. I’m your host, Benjamin Bryant, an accredited family law specialist with Bryant McKinnon Lawyers. My partner, Heather McKinnon is in court today. But we are very lucky to welcome our special guest, family law barrister Rhys O’Brien. Although he’s based in Sydney, at the prestigious Culwulla Chambers, Rhys spends a lot of his time in courtrooms up and down the north coast. And this week, he’s been in court in Coffs Harbour. We’ve persuaded him to come and talk to us between court sessions. Welcome Rhys and thank you so much for taking time to be on the show.
Rhys O’Brien: Thanks, Ben. It’s great to be here.
Benjamin Bryant: Today Rhys we’re going to be talking about a really interesting subject, and that is social media.
Rhys O’Brien: Indeed.
Benjamin Bryant: Facebook and Instagram might not be something you instantly associate with family law, but I can assure the listeners that what gets posted on social media can completely change how divorce and separation plays out at court. Rhys, I think we’ve both seen first hand how one little Insta post can affect family court proceedings. And that’s why we’re so glad to have you today. So let’s get started.
Rhys O’Brien: Let’s do it.
Benjamin Bryant: The first question Rhys is all about how can social media be used in court proceedings, so can photos and videos from social media be used as evidence?
Rhys O’Brien: When you want to look at what the court proceedings are, they are a forum where two parties in respect of parenting matters, come together and present their evidence to the court about who is the better parent or who has the better life plan for their kids. In coming to that conclusion, we use evidence. So there’s all sorts of pieces of evidence that are out there, which can be utilised for and against the client.
Benjamin Bryant: Otherwise, it’s he said she said.
Rhys O’Brien: Exactly right.
Rhys O’Brien: So unfortunately, the court is hamstrung by seeing what evidence is before them and then seeing that evidence tested by cross-examination of that witness in the witness box. So in that context, photos and videos from social media can come into play, because some people do very silly things. So, for instance, I can think of examples. Would you like to hear examples?
Benjamin Bryant: We’d love to hear examples.
Rhys O’Brien: One example was, there was a restraint on the party from bringing a child into contact with a particular person. In their affidavit evidence, they said, I haven’t been bringing the child into contact with that particular person. But of course, lo and behold, there was some Facebook posts that were dated post the affidavit, of that person being brought into contact with that child.
Benjamin Bryant: On a public forum?
Rhys O’Brien: On public forum.
Benjamin Bryant: Wow.
Rhys O’Brien: And that then, of course, leaves the deponent of the affidavit, which is a technical term for the person who makes the affidavit, open to an attack on credit and particularly in parenting proceedings credit is actually quite important, because the court needs to know that you’re a safe pair of hands in respect of what you’re proposing for that child.
Benjamin Bryant: So Rhys, from a family law practitioner point of view, we know in the Federal Circuit Court, at least, where most matters are heard, a lot of the time the matter’s progressed on the documents. People always come to me and say I’ve taken this video or I’ve taken this audio recording, can we play it to the judge. And of course, the answer is no, certainly in an interim setting in. So I’m sure litigants are very used to, seeing text messages or Facebook posts and the like attached to affidavits. But you’re involved a lot at the pointy end, where you do have the opportunity to get people in the witness box and cross-examine and the judge is there to make a decision. How can a litigant get a video put before the court?
Rhys O’Brien: In terms of video that they’ve taken on a phone or video that may have been posted up on social media?
Benjamin Bryant: Well, probably both, but let’s go with on their phone.
Rhys O’Brien: Well, first of all, you need to assess whether the other person knew that that was.. We’re veering slightly off from social media… but what I will say is that there are certain laws in place that prohibit you from making recordings without… basically without a reasonable legal excuse. So you need to cross that first hurdle: have they broken the law?
Rhys O’Brien: The court has a discretion to allow evidence which is illegally or improperly obtained to be admitted.
Benjamin Bryant: If it’s worth it.
Rhys O’Brien: In effect, if it’s worth it. If the probity value (is the term) outweighs the prejudicial effect, and mostly it’s always prejudicial. Otherwise, you wouldn’t be seeking to have it entered into evidence. But if it’s relevant and it’s important, then you need to have a good hard think about whether you put that evidence before the court.
Benjamin Bryant: And if there was a video or there was a post of some sort on Facebook or Instagram or some other social media platform, and it may have been effectively removed or moved to a person that you don’t have communication with or something like that. However, it works. Is it possible to issue a subpoena? So onto Facebook, Instagram or the like for them to provide a recording or provide the post or something like that? If you can’t get it yourself.
Rhys O’Brien: I think the technical answer is yes, but the practical answer is no. So sure you can try and issue a subpoena to that particular entity in whatever country it’s operating out of. But that’s one heck of a problematic thing to engage in and can be quite expensive. So at the end of the day, you can say in theory yes, but practically no.
Benjamin Bryant: And you’ve given us an example before about just what damage social media can do in the litigation system. I just have some questions for you about the damage. Can you stop your ex-partner from making denigrating social media posts about you on social media?
Rhys O’Brien: Look, you can always go to court and seek an injunction. In a scenario where there were children who had access to the Facebook page, which happens. Then you could say to the court, this is what’s being put on there, the child has access to the Facebook post, this has to stop. In those circumstances, I think you could get a restraint. In circumstances where that wasn’t the case, and they were just blowing off steam about their partner online, you could definitely approach court and ask for that to stop. But the problem with family law is that you need to take each case as it comes. And I would say, yes, technically you could stop that, particularly in circumstances where you were involved in active proceedings, because it’s likely going to be, “this has happened in court” or “so and so said this” or “a psychologist said this about them” and blah, blah, blah. Those sort of things they can’t talk about. And those are the types of things which get spruiked on social media, because it’s not just about the private war to them, it’s about making the other partner look bad to their former circle of friends and family.
Benjamin Bryant: And I said on this show many, many times that when a court is making an assessment, on what are the future parenting arrangements for children. the primary goal is to make an order that is in the children’s best interests. And a lot of people think that’s a general kind of assessment. But it’s not. Section 66 that clearly sets out what things the court has to take into account when making an assessment as to what’s in a child’s best interests. So with that being said, if someone was to post something denigrating about their ex or someone involved in the children’s lives, how can that be used against them, especially in the context of that best interest assessment?
Rhys O’Brien: Well, again, it depends on what order is being sought by either party. So what parenting regime you want to be in place for your child or children. And then, what parenting regime they’re trying to put in place. So if they’re making the case that they should have equal shared parental responsibility, and they are consistently writing off the other parent publicly although that might not be the nail in the coffin on that argument, that would not be helpful for them and could be used against them in respect of their case. For instance, you could say, “Look, you don’t have a very high opinion of the mother’s parenting abilities or the father’s parenting abilities, do you?” And they might say, “Oh, yes, I do.” And then you turn around and say, “Well hang on a second, you said all these horrible things about them and all these nasty things about their parenting capacities.” You can get little small hits like that on people, and it’s just not helpful for your case to be on social media posting about your case or the other party. In this culture where everyone seems to want to share too much on social media.
Benjamin Bryant: Like never actually happened if it’s not shared on social media.
Rhys O’Brien: Yes, maybe. What you find is these people, when they’re hurting and when they’re stressed and anxious as they are in family law proceedings, they go to social media and they want people to gather around and they want people to know the injustices that they perceive have been inflicted upon them by the other spouse. And it….it’s unhelpful. I’ve seen many cases in family law proceedings where that’s very much what people are doing. I remember one guy I was going on a huge rant in respect of how he couldn’t see his children. And he also included videos of him speaking to his children to show that he had such a great relationship with his kids, to everyone. And, of course, that was used against him.
Rhys O’Brien: So my one comment before you get into specifics, is that if you’re in family law proceedings, don’t post. Don’t post, put your page on private. But also know that you have friends on your Facebook pages, who are also still friends with your ex or the mother or father of your children…
Benjamin Bryant: Six degrees of separation.
Rhys O’Brien: And they will be spying on you. They’ll be taking photo screenshots. They’ll be sending it to the other person to be used against you. So I would keep yourself well away from social media in family law disputes, and to be honest, it’s not an appropriate forum for you to be discussing these things.
Benjamin Bryant: Because I get asked a lot by clients whether they should delete their Facebook profile or their social media profile. Well, how much do you trust yourself?
Rhys O’Brien: I think that’s right.
Benjamin Bryant: Can you control yourself. Is it possible?
Benjamin Bryant: Because, of course, there’s some really good things about the great benefits of being able to use social media, especially in the context of families as well, if you have many families or friends abroad. Everyone’s lives getting more busy, just a single post can reach a lot of people. Of course, children themselves are communicating on the social media platforms as well. So there’s some real benefits to them but you just have to be so careful.
Rhys O’Brien: Look, I’ve just got a swag of examples that I could waddle out. Social media is something that people use as an evidence gathering tool. If you want to expose yourself to that, then by all means, post to your heart’s content. But if you want to run a bit more of a tight ship, knowing that you’re in the season of…
Benjamin Bryant: Scrutiny.
Rhys O’Brien: Yup, that’s one way of putting it. I would avoid posting on social media in respect of your life in general.
Benjamin Bryant: And Rhys, we’re talking about negative posts. But I know some people feel quite strongly about any posts about children being on social media, whether it’s denigrating or not. In fact, I had a matter this week. we were discussing the digital footprint of a child. So there is this growing thing of trying to minimise a child’s digital footprint. Is there a way that we could stop parents from posting about their children or pictures of their children at all on social media?
Rhys O’Brien: I’ve never done it. I think it’s interesting though, thinking about this new dimension of parental dispute, that you have to actually have an argument in court about what gets posted online about your child. It’s quite a remarkable thing to have an argument about. One would have thought that if one parent wasn’t comfortable with images of the child being posted online, the other parent would just respect it.
Benjamin Bryant: Because other parents are being unreasonable Rhys. You know that.
Rhys O’Brien: That’s right, they want to bless the world with pictures of their child and why should they let the other parent stand in the way of that? Look, I think the technical answer is yes you could again, you could stop them. But of course, you could also argue against it. So, “Why do I need this restraint on me? I’m only posting up nice, wholesome pictures of my child.”
Rhys O’Brien: Again, the technical answer is yes you can, but it’s always based on the actual circumstances of the case in family law. Because family law is broad, and the judge has discretion. You might come up against a judge who says, “Why are you even posting pictures of your kid online? What’s wrong with you?” Another judge might go, “Who cares. I post pictures of my grandchildren up on private account with my family.”
Benjamin Bryant: We have a lot of situations where we have blended families. We have new partners, we have step parents and things. I imagine it would be harder to seek an order from the court, perhaps restraining them from posting something about the children or something denigrating about the other parents.
Rhys O’Brien: Well, you can’t stop them because they’re not a party. If they’re a party you could. If they’re not a party to the proceedings, then the court can’t make rulings against them.
Rhys O’Brien: If you’ve got people posting on your page about the other parent, then you probably need to be seen to be shutting that down because that will likely come back to bite you in the backside. It might not lose your case, but it might not be helpful.
Benjamin Bryant: When you’re trying to get points on the board?
Rhys O’Brien: Absolutely.
Benjamin Bryant: It’s not going to help.
Rhys O’Brien: Well, look, I mean, when you come to family law, you need to be shown to be (and I say this in the most gender, non-specific way I can), you need to be the white knight, so you need to be the “good” person who comes in saying, “Look, this is the best plan for the child or children. This is how I’m engaging with the other parent to make it happen now we’re no longer together.” And all of these small things can add up against you to make you appear to be the less favourable option. So you need to think about that.
Benjamin Bryant: To try to rise above the conflict.
Rhys O’Brien: Absolutely.
Benjamin Bryant: And Rhys, previously you also touched on whether people actually mentioned their court proceedings or something published in the court proceedings. A lot of the time, we have a lot of family reports, we have psychologists reports and the like. And you might come across the post that says, “I knew the court psychologist was going to say that” or “I knew the judge was going to give them a serve” or something. In those circumstances? Why is there a particular offence.
Rhys O’Brien: Well, you got section 121 of the Family Law Act, which prohibits people from publishing the details of a party or publishing details that would enable the identification of a party to the public. So I’m sure everyone knows in your circle that you’re going through family law disputes. Some might not. And by hopping online and publishing a post, you may well be falling foul of Section 121, which is a criminal act.
Benjamin Bryant: And finally Rhys, I just want to end this on a positive note. What ways can social media be used, in the context of family law, in a positive way. Can you think of any examples whereby social media has been used to prove that a parent is facilitating a relationship with the other parent rather than disproving it?
Rhys O’Brien: The only way that I would have seen that is via messaging. I have yet to come across a family law dispute where someone’s playing positive about the other on their social media. That could be proven wrong in the future, I just haven’t seen it. I think a positive use of social media…. that’s a tough question.
Benjamin Bryant: And, you’re always at the pointy end, you’re at the acrimonious couple that absolutely can’t reach an agreement.
Rhys O’Brien: Look, I’ve never seen a post where they’re in family law, in a family dispute, where they say, “Kids came back from spending time with the ex. They had a great time. I’m so thankful that they’re in the children’s lives.” I have never seen that. Now that might happen after the dispute. But it’s not going to happen during the dispute because, of course, people are in scrutiny, evidence-gathering phase, because they want to win.
Benjamin Bryant: I’ve seen social media used really positive settings, especially communication with significant family members at a long distance. But you’re in the box, you’ve got competing proposals, and this is the day before the judge, this is the evidence, this is your affidavit, this is confined to the dispute. So I appreciate that was a hard question for you to answer. Because with those couples, like the 3 percent of people that actually need a decision from the judge, they’re not posting positive things. So thanks for having a crack at answering that anyway.
Rhys O’Brien: That’s alright. My pleasure.
Benjamin Bryant: And thank you so much Rhys, for taking the time out of your hectic schedule to be on today’s program.
Rhys O’Brien: My pleasure.
Benjamin Bryant: And thank you to all our listeners. We hope you have found this podcast helpful and that everyone out there involved in family law matters will now think carefully about what they post on social media.
Benjamin Bryant: Next month, Heather and I are going to have a conversation about divorce and the blended family. When people separate, it’s natural and healthy that they want to move on to new relationships. So it’s not surprising that the number of blended and step families are rapidly increasing. New partners, new children, new families. All of these things can raise unexpected disputes or concerns between a couple that has separated or divorced. So Heather and I are going to talk about when to expect concerns to arise, how best to handle them, and most importantly, what’s best for your children. If you have a blended family situation and have questions that you would like Heather and I to answer, please send them via Facebook Messenger or e-mail us on familymatters@bryantmckinnon.com.au.
Benjamin Bryant: Before we go, I want to mention that links to any resources mentioned on today’s show, plus a full transcript will be available in the show notes on our website: bryantmckinnon.com.au
Benjamin Bryant: Goodbye for now and thank you for listening and I hope I’ll see you again next month.