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Family law disputes can be very difficult for all parties involved with disputes often taking an emotional toll on parties. It is normal for people to want to talk about their experiences, explain their feelings and express their pain, anguish or even anger.

Many people will use social media to communicate their feelings and experiences with their friends, family and strangers alike. However, by posting about their Family Court matter on social media, it can have legal implications.

Section 121 of the Family Law Act 1975 (Cth) restricts the publication of Court proceedings. Publication involves posting on social media. The maximum penalty that publishers can face is a prison sentence. 

What is not allowed? 

The Act says – 

You cannot publish, by any means, anything that would identify a party to Family law proceedings, or a person who is related to a party, or a witness. 

This would include things such as the names of people, their titles, pseudonyms, nicknames, aliases, or anything that is sufficient to identify that person to a member of the public, or to a member of the section of the public. 

An example of this can be seen in this case of Xuarez & Vitela

In this case, one of the parties created a website, listing the names of the other party, the solicitors, barristers, the Judge, and Court officials. The website went on to accuse the Judge and Court officials of being bias as well as attacking the integrity the solicitors and barristers of both sides, including the Independent Children’s Lawyer. 

 The Court found that the manner and type of publication was “deliberately intended to intimidate” the lawyers and to stop them from acting, as well as being an attack on the proper administration of justice. 

It is also important to highlight that the Court is also very concerned about children being identified. Either directly or through their association with a named person. This is done to protect the children from victimisation.

The party was ordered to remove the website and he was referred to the Australian Federal Police for investigation. 

In the case of Lackey & Mae the Court noted that social media was an “unfortunate and increasing feature of modern litigation… [and] often it is used as a weapon”.

In these proceedings the family of the Father made multiple posts on Facebook that denigrated the Court and the Independent Children’s Lawyer’s Witness (as well as the investigation undertaken by the Department of Child Services and Police). The Father’s family members also published specific details about the proceeding that came from recently filed affidavits.

The Judge referred to the case of Xuarez,  and stated that s 121 applies equally to social media as it does to any other form of publication. The Father, as well as those persons who made the posts, were referred for investigation by the Director of Public Prosecutions.

“Publishing” does not have to go as far as posting on social media or making a website. Sharing an affidavit (whether it is yours or someone else’s) with someone who is not apart of the proceedings is a direct breach of s121. It is important that you do not share any Court documents (including Orders, Reports and other material) with any person who is not directly involved in your matter.

Conclusion

Emotions run high during family law proceedings. However, it is important to remember that a post on a social media platform can negatively impact on your matter and can lead to prosecution and imprisonment.