Shepherds Family Law | Social media and family law proceedings
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22 Aug Social media and family law proceedings

Posted at 14:25h in Uncategorized by

Family law court disputes can be challenging for separating spouses. Many feel anxious, scared, and isolated. Some feel it necessary to explain the proceedings to their family, friends, and beyond. This sometimes includes discussing proceedings online and on social media. However, it is crucial to consider the implications before using social media to discuss these matters. Commencing on 1 May 2024, the new s114P of the Family Law Act will make it a criminal offence to publish details of family law proceedings online.

Separated spouses and their family and friends need to be careful not to put themselves at risk of prosecution and imprisonment by communicating any details that might identify a party to family law proceedings or their family and friends. Other spouses, worried by the online behaviour of the other, might consider the following remedies to stop it.

Commencing 1 May 2024, the new s114P of the Family Law Act will make it a criminal offence (punishable by up to 12 months imprisonment) to communicate by any means to the public (or a section of the public) an account of proceedings under the Family Law Act which identifies:

  • a party or a witness to the proceedings or
  • a person who is related to or associated with a party to the proceedings or is in any other way concerned in the matter to which the proceedings relate. This would include children of the party, doctors or counsellors of the party, and experts who are engaged to provide reports in the proceedings.

Communicate includes:

  • broadcast or publication or other communication by means of the internet. This could include:
    • social media
    • websites
    • school portals etc
  • publication in a book, newspaper, magazine or other written publication;
  • broadcast by radio or television;
  • public exhibition.

The prohibited communications do not include private communication between a party to proceedings and one or more persons who are members of the party’s family or friends of the party. An email between such people, and not going beyond them, is not an offence.

An account of proceedings identifies a person if it includes:

  1. their picture, recording, or physical description
  2. their name or title;
  3. the address or location of their home or work;
  4. details of their employment, paid or voluntary;
  5. the relationship between the person and an identified person or business;
  6. the person’s political, philosophical or religious beliefs;
  7. any property associated with the person.

Anyone can be charged under this offence – not just a party to the proceedings. Not knowing such communications is an offence does not avoid liability.

Less stringent restrictions have been in place for many years under Section 121 of the Family Law Act. This has caused Family Law Court judges to refer parties to the Australian Federal Police to consider laying charges.  The new s114P is much broader, and therefore, it is likely it will be breached more often as of 1 May 2024.

Section 68B of the Act also allows the Court to make orders (injunctions) to restrict what parties can say about proceedings. A breach of such an order would be punishable by the family law court making the Order.

Parties have also been successful in getting awards of damages that the other party must pay for posting online false or derogatory claims.

Online communications (and text messages) can be used as evidence in court.  Inappropriate communication and publication of details of family law proceedings are looked at dimly by judges being asked to make orders about children or finances. They do not help the case of the person making the communications.

Online conflict can distract separating spouses from reaching a sensible agreement. Avoiding it can help separating spouses reach sensible agreements through mediation and avoid court or get out of court as quickly as possible.

A party finding it challenging to cope with the stress, anxiety and loneliness of family law proceedings should speak confidentially with a counsellor – and avoid the temptation of “letting off steam” online. Other parties feeling harassed by online communications and reporting about their proceedings should discuss the above remedies with their family lawyer.