It started with chain emails and ICQ, progressed to MSN Messenger and has advanced to Facebook, Twitter, WhatsApp, Snapchat and Tinder to name but a few.
Electronic communication has assisted the practice of family law in countless ways, such as giving us immediate access to online research platforms and the ability to instantaneously communicate with clients, other lawyers and other professionals.
The downside to the electronic age is that it is becoming all too common in family law that we see parties using social media as an opportunity to vent, rally support or otherwise discredit or defame their former partner to the online world. The internet has become a forum for vendettas to be ventilated and grievances to be exposed.
There have been a series of recent cases which serve as a timely reminder as to the potential ramifications of such online ramblings.
Restriction on publication – Family Law Act
It is very important to note that Section 121(1) of the Family Law Act 1975 makes it an offence for any person to publish material that identifies a party or a person who is in any way related to proceedings in the Family Law Courts. The offence is punishable by imprisonment of up to one year.
Publication may be in a newspaper, radio, other electronic means, or simply by disseminating information to the public or a section of the public. This may even include discussing the proceedings with a friend or neighbour.
The identity of a person is not just limited to their name; a person may commit an offence if they release any information whatsoever which is sufficient to identify that person to a member of the public including a description of their physical appearance or style of dress, details of their address, employment, personal or business relationships, recreational, political, religious or other interests, or their real or personal property.
For parties in Western Australia who have not been married, these provisions are largely mirrored in Section 243(1) of the Family Court Act 1997. The penalty is $11,000 for a body corporate, or $5,000 and 12 months imprisonment in any other case.
There are exceptions to the rule, such as publications made with the Court’s permission, however in many cases such exceptions will not apply.
There have been cases in the Family Law Courts such as Lackey & Mae  FMCAfam 284, whereby a party has been required to remove offending Facebook posts, and the Marshal of the Court directed to ensure any breaches of Section 121 were investigated and if appropriate, prosecuted. The Court also directed the Marshal of the Court to monitor social media and in particular, the Father’s Facebook page, for the next 2 years for posts from the Father or his family members. Any offending posts were to be referred to the AFP for possible prosecution.
The case of Dabrowki v Greeuw  WADC 175 was determined on 22 December 2014.
That case involved a Facebook post by Ms Greeuw in December 2012 wherein she stated, "Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe". The post was made in the context of a clearly acrimonious separation and protracted Family Court proceedings.
The post was seen by several friends and family members of the parties.
The Trial Judge found that, "…The post was defamatory…I have no doubt that 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…"
The Court ordered that Ms Greeuw pay Mr Dabrowski the sum of $12,500 by way of damages, interest on that payment from 20 December 2012, along with his legal costs.
Breach of confidence
A further example is the case of Wilson v Ferguson  WASC 15 which was determined on 16 January 2015.
That case involved a couple who during their relationship, "…obtained photographs and videos of each other either naked or partially naked and, in some cases, engaging in sexual activities". Following separation, the defendant posted 16 photographs and 2 videos of the plaintiff on his Facebook page which were viewed by various people including mutual work colleagues. The posts were removed from the Facebook page within a few hours however could potentially have been seen by approximately 300 of the defendant's "Facebook friends".
The plaintiff alleged that the defendant had committed a "breach of confidence" and sought financial compensation for the humiliation, anxiety and distress that the publication had caused her. As a result, she took several weeks off work, losing wages of $13,404.
The Court found that the defendant's actions did amount to a breach of confidence and that the plaintiff had suffered from damage, “…sustained in the form of significant embarrassment, anxiety and distress as a result of the dissemination of intimate images of her in her workplace and among her social group...”
As to quantum of compensation, the Court held the, “…compensation award should take account of the fact that the impact of the disclosure on the plaintiff was aggravated by the fact that the release of the images was an act of retribution by the defendant, and intended to cause harm to the plaintiff…”
The defendant was restrained from directly or indirectly publishing any form of photographs or videos of the plaintiff engaging in sexual activities or in which the plaintiff appears naked or partially naked.
The defendant was ordered to pay the plaintiff compensation of $48,404 being $35,000 plus $13,404 for her lost wages. He was also required to pay her legal costs of the action.
Social media – The practical approach
Parties to family law negotiations should be aware that any written communications including emails, SMS text messages, Facebook posts and instant messages may later be used as evidence in the Court. It has become increasingly common for emails or “screen shots” of SMS text messages or Facebook posts to be printed and annexed to Affidavits.
As identified above, there is also the risk of imprisonment or financial penalties for unauthorised publication of material, along with the ancillary costs of legal advice and representation which accompanies such litigation.
As a general rule of thumb, before sending or posting any electronic communications, it is advisable that parties ask themselves, “What would a Judge think of me if she read this?” If the answer is not positive, hit “delete”. Even better, it would be wise to consider the adage, “If in doubt, leave it out.”
At Leach Legal, we pride ourselves on giving pragmatic, ethical advice and assisting families to achieve resolutions that will allow them and their children to move forward to a positive future. For your free, 15 minute initial telephone consultation, please call 08 9486 9733.