In today’s digital age, social media has become integral to people’s daily lives. Everything can be posted online with minimum restrictions, from meals to travel experiences and personal milestones to intimate moments. While this openness allows for increased connectivity and self-expression, it raises significant privacy concerns, particularly regarding court proceedings involving children and family law.
When sensitive legal matters, such as divorce or custody battles, are shared online, the potential consequences can be severe. The digital footprint left by online posts is nearly impossible to erase, and the information shared during legal battles can have long-term implications, especially for the children involved in the court proceeding. Children are vulnerable to the lasting effects of having their private lives and the details of their family struggles publicly displayed. Not only can this lead to emotional distress, but it can also create future challenges for the child as they grow up with an online record of their family’s legal battles.
Therefore, Family Law Act 1975 (Cth) section 121 restricts the publication of any party’s name in family court proceedings.
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated; being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
The Family Law Amendment Act 2023 (Cth) proposed replacing section 121 of the Family Law Act 1975 (Cth) with Part XIVB. The New Part XIVB clarifies and precisely outlines the restriction on public communication.
The Australian parliament ultimately passed the Amendment Act on 19 October 2023. The amendments in schedule 6 of communication of details of family law proceedings commenced on 6 May 2024, which repealed s121 with Part XIVB.
Now, section 114Q of the Family Law Act 1975 (Cth) prohibits the unauthorised publication of any parties or others involved in proceedings. Including,
(a) a picture, recording, or physical description of the person;
(b) a name or title that identifies the person;
(c) an address or location where the person resides or works;
(d) details of the person’s employment, paid or voluntary;
(e) the relationship or other connection between the person and an identified person or business;
(f) the person’s political, philosophical or religious beliefs;
(g) any real or personal property associated with the person
Section 114R of the Family Law Act 1975 (Cth) prohibits the unauthorised publication of any identifiable reference to the name of that party in proceedings regarding.
(a) a court.
(b) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the applicable Rules of Court;
(c) a tribunal established by or under a law of the Commonwealth or of a State or Territory.
Case law
McLeay & McLeay [2024] FedCFamC2F 798 MLC 2691 of 202:
It is one of the most recent cases in the family court entertaining breach of s 121. The father of the proceeding was frustrated and threatened to name and shame people involved in this case in a documentary, including the mother, the court, the manager and the registers. Throughout the proceeding, the father further aggravated the situation by making multiple social media posts, which detailed the aspect of the case, and one time even were accompanied by photos of his child. The court concluded that social media posts made by the father were possibly in breach of s.121 of the Act, and the matter was referred to the Australian Federal Police to investigate whether there was an actual breach.
It must be noted that the Registrar has the discretion to refer the case to the federal police for investigation of a breach of s 121 of the Family Law Act. This is an indictable offence punishable by a maximum penalty of one-year imprisonment.
Therefore, it is essential for anyone involved in family law proceedings to understand and strictly adhere to the confidentiality requirements set forth by the law. Breaching these restrictions, mainly through public platforms like social media, can have serious legal consequences, including investigation and possible criminal charges, as demonstrated by the McLeay & McLeay case. The protections offered by sections 114Q and 114R under the new Part XIVB of the Family Law Act are in place to safeguard the privacy and well-being of all parties, especially children, from the long-lasting impact of public exposure.
If you need expert guidance on resolving a family dispute, please call us on 1300 559 888. We offer a complimentary consultation to discuss how we can assist you.