Privacy and family law

Standing outside Court recently I noticed someone taking a photograph of a small group of people. Nothing too unusual there. But, what was being photographed was a person having discussions with someone who appeared to be their solicitor and another person who appeared to be their barrister. The only person posing was the ‘client’. The photograph included the face of the client, and the profiles of the solicitor and barrister and, in the background, the Court building.

Now, I have no idea what use this photo was going to be put to.

 
But it did turn my mind to the issue of privacy in the family law system.

We are all entitled to our views and opinions. But, when you publish them for a wider audience, say on the internet, you are allowing other people to read your words or see your images.

For most of the time in family law that means that Facebook comments, text messages, emails, Tweets, and blog posts are printed and then attached to affidavits which are filed in Court and can be then form part of the proceedings. These words and images can then impact directly on the outcome of the proceedings. Such an impact can be far beyond what was intended.

But published words and images can go even further than that – the person publishing them can be found guilty of committing an offence under section 121 of the Family Law Act which can be punishable by imprisonment.

I’m not suggesting that the photograph I saw being taken would fall in that category but over the years the Courts have made use of section 121 of the Family Law Act to protect the privacy of people involved in family law proceedings.

For example, in a 2013 judgment, reported as Lackey & Mae [2013] FMCAfam 284, the Father and members of his family, posted comments on Facebook about his family law proceedings.

The solicitor for the Mother sent a letter to the Father requesting that such behavior stop and this letter contained a warning regarding the risk of penalty for breaching section 121 of the Family Law Act. Despite this warning, the Father continued to post comments on Facebook.

The Judge noted that the Father’s behavior not only put him at risk of conviction under section 121 (with potential for imprisonment) but also more generally contempt of Court (also with potential for imprisonment).

The Judge made Orders that the Father and members of his family were restrained from publishing or otherwise distributing any material relating to the proceedings, the children, the Mother or members of her family, including publication on Facebook or other social media site and to remove all reference to the proceedings from Facebook. The Judge also Ordered that the Court Marshal and the Australian Federal Police be given the judgment and that the Marshal monitor social media for postings made by the Father or his family for the next two years. Should breaches be found the Marshal was ordered to investigate and prosecute if appropriate.

While the photograph I saw being taken was perhaps a far cry from the behavior in the Lackey & Mae case it served as a reminder to me of the vital privacy rules that exist in relation to family law proceedings and the results that can flow from breaches of those rules.