Social media use is something that has become so normalised that for many people, it is their primary means of communication with others. Whether it be sharing photographs or reels on Instagram or comments on topical issues on Threads; social media provides us with the opportunity to connect with an abundance of likeminded individuals in a digital world.
A quick search of Facebook will show you a raft of ‘groups’ and ‘communities’ specifically designed to bring together people with similar likes, interests, or concerns. The ease of connection provided by these groups is however serious cause for concern when those groups involve sharing information related to family law proceedings.
The Law
For those that are involved in or are considering initiating Family Law proceedings, it is important to become familiar with Section 121 of the Family Law Act 1975 (Cth) ("the Act"). This section of the Act prohibits people from publishing information that identifies:
- A party to the proceedings;
- A witness in the proceedings;
- A person is who related to or associated with a party to the proceedings; or
- Is alleged to be concerned in the matter to which the proceedings relate.
This section of the Act was drafted in quite a broad manner which means that even a vague reference could be taken to be a breach of the Act. As Section 121 acts to criminalise the disclosure of information in relation to family law proceedings, upon conviction a person who has breached this provision can be imprisoned for up to one year.
Case Law Examples
In the 2013 case of Lackey & Mae [2013] FMCAfam 284, a father took to Facebook to express his frustrations about his family law case. He posted updates criticizing the mother, her lawyer, and the Independent Children’s Lawyer involved in their parenting proceedings. The Court found that these posts violated Section 121 of the Act. As a result, the father was instructed to delete all relevant Facebook posts and comments related to the case. Additionally, a Court Marshal was appointed to periodically check the father's social media accounts for any mentions of the ongoing court proceedings. If any such mentions were found, they were to be reported to the Australian Federal Police for investigation and possible legal action.
In the 2020 case of Yabon & Yabon (No4) [2020] FamCA 1001, the father's new partner posted video footage on her social media platforms showing her 12-year-old stepdaughter (the subject child of those family law proceedings) making derogatory comments about her mother and stepfather. In addition to posting those videos, the father’s new partner (unbeknownst to the father) also distributed a formal complaint letter regarding a judicial decision made in the proceedings to various individuals, media entities, and organizations. The Court unequivocally censured these actions by the father's spouse as egregiously inappropriate. The Court criticised the actions of the father’s new partner calling them “horrendously inappropriate". The issue was then referred to the Australian Federal Police for further investigation and potential prosecution.
Social Media Best Practice
Apart from refraining from discussing ongoing court proceedings on social media, it is crucial to be careful about what other content you share that could affect your Family Law cases negatively. This caution extends to posts that are visible for only a short time, like those on Instagram or Facebook stories, or messages on Snapchat that disappear after being viewed. Here are some examples of social media posts that could cause issues:
- Discussing your mental health struggles in posts;
- “Sounding off” about the struggles you are experiencing coparenting;
- Making threats of violence or engaging in aggressive behaviour online;
- Posting anything that might suggest your involvement in criminal activities;
- Sharing screenshots of private messages exchanged with the other parent;
- Bragging about your financial position;
- Posting provocative or inappropriate images of yourself or others; and
- Sharing videos implying excessive alcohol consumption or drug use.