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Social Media and the Duty of Disclosure

Before the Family Court or Federal Circuit Court can decide how best to finalise the financial arrangements between parties following the breakdown of a relationship, it must have all relevant information as to the parties’ financial circumstances. Each party to a Family Court proceeding is required to provide the other parties with all documents which may be relevant to any issue between them. This extends to all documents which are in the party’s possession or control. In recent years, it has become important and routine to include any relevant material from social media. This may be material involving one of the parties or communications between the parties.   

Pre-action procedures

Under what are known as the pre-action procedures of the court, the parties are required to make a genuine attempt to resolve the issues between them before filing an application for property orders. These procedures are described in Schedule 1 of the Family Law Rules. The pre-action procedures include the duty to disclose relevant documents as well as to explore settlement options and participate in dispute resolution. There are certain exceptions where these procedures do not need to be followed.

In a financial case, the court would consider what documents are necessary to provide. This may include include tax returns, tax assessment notices for the last three years, current superannuation statements, documents evidencing sources of income such as pay slips, bank statements for the last twelve months and documents about property which has been disposed of twelve months prior to the separation or since the separation.

Social media

Social media are forms of electronic communications on websites and through applications, which allow users to create online communities to share information, personal messages and other material such as photos and videos. Material posted by a party on social media would be seen by a court as being in their possession or control and would fall within the very broad definition of “document” under either the Commonwealth or Western Australian Evidence Act for the purposes of family law proceedings. However it is important to appreciate that it is only relevant material from social media which must be disclosed. Parties are not required to give access to their social media accounts to the other party.

Prejudicial material

It is usual for parties seeking property orders following the breakdown of a marriage or de facto relationship to be advised to exercise care when posting material on social media such as Facebook, Instagram or Twitter as such posts have the potential to adversely affect their case. An example would be posts relating to how funds have been disposed of since the separation.  

However, relevant material may already have been posted on social media before the parties separated or before proceedings were commenced. If that is the case, the material will need to be disclosed to the extent that it is relevant to the proceedings.  

It may be that the other party already has access to the material because the parties have been in communication with each other and there are no issues in obtaining access to it. In some cases, parties may have access to material posted by the other party simply from knowing their password information but parties should not obtain relevant material directly from the other party’s social media accounts. It is essential that a party to family law proceedings not act in any way which the court may view as improper. Parties should always go through the proper channels when obtaining disclosure.

Unauthorised access

There may also be criminal consequences arising from the misappropriation of information from the other party’s social media accounts. There are Commonwealth offences relating to unauthorised access of computer information. Such offences may be committed where a party to family law proceedings obtains material from social media without the consent of the other party.

Discretion to admit evidence improperly obtained

If material has been obtained illegally the court retains a discretion as to whether to admit it into evidence. In relation to family law this was confirmed in a decision of the High Court of Australia in Miller v Miller (1978) 141 CLR 29. In exercising this discretion, the court must weigh up the value of the evidence in assisting the court to determine the issues in the proceedings against how the evidence was obtained and the need to discourage parties from obtain evidence improperly.

In conclusion, material available from the other party’s social media accounts can sometimes be very valuable and relevant to issues between parties in family law matters. In such circumstances it becomes necessary to provide it to the other party in accordance with the duty to disclose. It is important to obtain legal advice as to what material from social media accounts must be disclosed in any particular matter.

If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.

By Bruce Heathershaw, Senior Associate

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