‘Clear and blatant’: the breaches of the Family Law Act that often come with no consequences
There are the angry fathers posting on crowdfunding sites, railing against their former partners for “stealing” their children and asking for donations to pay a family lawyer.
They may have been denied legal aid, so they post photos to Facebook of themselves and their children in happier days, pleading for help to be reunited by the courts.
Then there are the vigilantes who think of themselves as online paedophile hunters, many of whom also believe in QAnon, and name and abuse parents involved in custody battles on social media, making all kinds of shocking, unfounded allegations against them.
These posts are breaking the law. Publishing information which identifies the participants in a family law proceeding, is a criminal offence with a maximum penalty of a year in prison.
But breaches of section 121 of the Family Law Act are rarely prosecuted, or even referred for prosecution.
The restrictions on publication of court proceedings exist to protect the identities of those involved, particularly children, in often acrimonious and deeply personal cases.
In 2019, there were only four reports of suspected breaches to the Australian federal police, the force confirmed. Last year, there were five – and none resulted in a prosecution, though some of those alleged breaches remain under investigation, the AFP said.
The actual number of breaches is likely to be in the hundreds, if not thousands, experts say. And while some can be relatively innocent posts made by people used to sharing everything about their lives online, others can be part of multi-pronged and long-running campaigns of harassment.
Regardless of the cause, the breaches often complicate and delay already complex and protracted family laws cases: injunctions may be sought preventing the posting of further information online, the posted material could create issues that have to be considered in the context of a custodial dispute, third parties may become involved because of information they have seen online.
Last November in the family court, Justice Colin Forrest described the treatment of three children by their father and his wife, their step-mother, as “horrendously inappropriate”.
The father, who once asked a barber to shave “Dad’s cool” into his son’s hair shortly before he returned the child to his mother, told Forrest he had not posted a video on social media seeking to raise funds for the case or sent emails to media outlets and other organisations criticising a court ruling.
His wife admitted to sending the email, but Forrest found it implausible that the father did not know about the posts or email.
Forrest then made one of five reports received by the AFP last year about section 121 breaches.
Forrest told the court his previous referrals included one that resulted in the prosecution of a media company,
but another was not pursued because it was considered to not be in the public interest.
“I see a clear and blatant contravention … and consider it to be entirely appropriate to refer the matter to the prosecutorial authorities for their consideration,” he said.
“How they decide to deal with it will be a matter for them.”
The AFP is understood to generally only prosecute the most egregious branches of section 121.
Every case prosecuted under the act has to get the approval of the commonwealth director of public prosecutions, meaning the public interest must be high. And given breaches are only punishable with up to a year imprisonment, it can be difficult to justify the resources required to, for example, pursue US-based technology companies for data on who has made a post online.
One of the AFP’s most recent section 121 prosecutions related to a man who had been running a website known as Wiki Investigates when he was contacted by two others wanting him to start an online campaign.
The man pleaded guilty and was sentenced to the maximum penalty of 12 months’ imprisonment. His appeal against the severity of the sentence was dismissed by the NSW supreme court in February.
The man was told the target of the campaign would be a father who they claimed had been sexually abusing his twin girls, the court heard.
He got to work, starting a website and Facebook, YouTube, and Twitter accounts.
From March 2017 to February 2018, he published 64 items that included accounts of the court proceedings and was paid $28,500.
In his posts, he alleged corruption amongst politicians, police and the courts, naming individual police officers, child safety officers, psychologists, judges and lawyers, and said “paedophile enablers” had influenced the case.
The court found there was no truth to the abuse allegations made against the father, nor was there any evidence of corruption.
Dr Jacoba Brasch QC, the president of the Australian Law Council and an experienced family lawyer, said breaches of section 121 routinely occurred in family law cases and led to delays and complications.
“The big problem is social media, people posting on social media and then once it’s on Facebook, it’s on Facebook, even if it’s deleted.
“There’s a range of cases that have been reported where, say, a party has brought an injunction to restrain the other party from posting stuff on social media.
“Crowd-funding is another problem as well; parties who crowdfund their litigation and show pictures of the children and say the other side is a monster and I need money to get away from them.”
In some cases, she said, the person had been motivated to find money for a lawyer after being knocked back from receiving legal aid. The problem was two-fold: needing money to fund a case, and not having the guidance of a lawyer who would warn them that such posts were a breach of section 121.
“I understand where they’re coming from, because they can’t get legal aid, [and] equally, they don’t know that they’ve contravened section 121 of the family law act … primarily because most of them act for themselves and aren’t aware.”