Defamation and family law - WA decision

One of the questions that I get from time to time is along the lines of "what can I do to stop him/her from saying bad things about me?" In the past, and still occasionally, this relates to things said in person to friends, family or co-workers but more frequently now it is in relation to comments made on social media sights such as Facebook or Twitter.

Last week the media reported on a case from Western Australia in which a husband was awarded $12,500 in damages against his estranged wife after she posted comments about him on her Facebook profile.

The post, which read "Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe." was posted in December 2012. Ms Greeuw removed the post in February 2013 following a letter from Mr Dabrowski's lawyer. 

In a 10 day trial before the West Australian District Court Ms Greeuw argued that the statement was not defamatory or if it was it fell under the justification defence found in section 25 of the Defamation Act 2005 (WA) in that it could be proved to be substantially true.

Judge Bowden said "Domestic violence and abuse by its very nature usually occur in the matrimonial home and in the absence of independent witnesses. I accept that defamation findings can be made solely on the evidence of one partner against the other."

Evidence was given as to the nature of the relationship between Mr Dabrowski and Ms Greeuw - including contemporaneous letters between the pair alluding to holidays being ruined. Mr Dabrowski argued that the letters went to his state of mind. Ms Greeuw argued that she was the victim of years of emotional and occasionally physical violence.

While Judge Bowden found Mr Dabrowski's evidence about the nature of the relationship to be lacking credibility he found that Ms Greeuw could not establish on the balance of probabilities that she had been subject to domestic violence.

Judge Bowden stated that Ms Greewu's claim that while she had written part of that statement she had not published it and her Facebook profile had been hacked to create the screenshot of the post that was used in the trial was "implausible" and it undermined her credibility. His Honour said "... Ms Greeuw's credibility is so badly affected by the matters to which I have referred  that it leads to the conclusion that she is prepared to say or write whatever she thinks will suit her case and I would not be prepared to accept her evidence unless it is supported by independent evidence or documents contemporaneously made with the events she now complains of."

His Honour said he had "no doubt that the post caused Mr Dabrowski personal distress, humiliation and hurt and harm to his reputation and it did cause people to 'look at him twice' and be more reserved about their contact with him." and "He is an experienced educator and is entitled to public vindication."

Judge Bowden came to the amount of $12,500 (plus interest and costs) by taking into account the fact that the comment was read by a limited audience and was deleted about six weeks later. 

It will be necessary to see if there are any decisions in NSW regarding this issue. In the meantime this remains a complex issue, and this case alone will not change that.