The need to seek emotional comfort from others in the midst of family law proceedings often makes us forget about our non-disclosure obligations. Sometimes we are so busy convincing our immediate friends and family circle that our story is right that we loose track of who we have told about the proceedings and by what means.
Here is why your obligation to keep the details of family law proceedings strictly confidential matters…Because it is a criminal offence that carries a penalty of up to one year imprisonment for its breach!
According to section 121 of the Family Law Act 1975 (Cth):
“A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
- a party to the proceedings;
- a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
- a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.”
The part that is relevant to most people in family law is the part that makes a person who “otherwise disseminates to the public or to a section of the public” guilty of an offence. The offence exists due to the special nature of family law proceedings that warrants protection of family’s right to privacy. It is thought that this right should take prevalence over the public benefit of open justice.
What can’t you do?
“Disseminating to the public” will likely include any social media posts that are readily accessible to your friends and followers. In contrast, sending a private email to a friend with the same information is unlikely to breach the provision. However, if your friend then goes on to distribute the email to other parties, the Court may be asked to look at the original intention of your email.
The word “public” has been interpreted to mean not simply the public at large, but also quite a small number of people with no connection to the proceedings. An example could even be showing a family report to a group of friends at a pub.
The reference to not disseminating “any account of any proceedings, or of any part of any proceedings” is pretty self-explanatory. This will generally include anything you might say or write that will identify the parties to the proceedings, witnesses, or any other person related to the proceedings.
It is fair to note that the widespread use of social media platforms like Facebook enables quick dissemination of information to a large volume of people without sometimes even realising it, thereby, increasing the potential for breaching the confidentiality provision. However, the realities of the digital world should not distract us from our long-standing legal obligations to the court and lower the threshold of compliance. Ultimately, this rule was designed for your benefit!
Unsure about your previous online post? Let us help! Read our ‘Recommended Acts of Precaution’ section below or simply give us a call on 02 8705 5432 for an initial consultation.
Confidential documents
As it is an offence to publish the names of parties to family law proceedings, it should go without saying that any documents produced by either party in the course of proceedings are confidential unless the party has waived their right to confidentiality.
Documents filed in court, whether or not they are used as evidence in the proceedings, are confidential until they are made public record. This includes documents produced in response to a subpoena, a sworn affidavit that was relied on as evidence in court, and any reports from a family consultant.
As a general rule, a party to any litigation is prohibited from using material that the other party was compelled to reveal, for example, in response to a subpoena. This an implied undertaking that each party that participates in court proceedings gives pursuant to the long-standing Harman rule. All these rules were designed to encourage full and frank disclosure by the parties in minimising the risk of subsequent litigation and preventing unnecessary disclosure of sensitive information to the public.
As a rule of thumb, you should treat every document that comes into your possession as a result of family law proceedings as private and confidential, meaning that it is not to be disclosed to anyone.
Recommended Acts of Precaution:
- Do not write anything about your family proceedings online where a group of people can potentially view the message. While a private tête-à-tête is unlikely to be considered a breach of s121, an online Facebook/Twitter post likely will be a breach.
- If you join a support group online, ensure that you do not give details about the proceedings and keep discussion to supportive and positive posts.
- Do not give copies of any documents related to the proceedings to third parties unless leave has been granted by the court to do so.
Please note that this article is intended to provide general advice only. It is not to be considered legal advice. Legal advice to your particular situation should be sought.