In family law proceedings, parties can sometimes be uncertain about what information
they can share with their family, friends and the general public. Is it okay to discuss
family law proceedings with a new partner? Are the parties able to post comments about
their legal matter on social media? Can documents be uploaded for everyone to read?
Generally speaking, family law proceedings are confidential, and information cannot be
provided to the public.
There are some situations where information can be shared. Sometimes family law
proceedings run at the same time as an intervention order matter or a criminal matter. If
that is the case, one party may seek that documents from the family law matter be used
in the intervention/criminal matter.
This articles explores two issues: discussing family law proceedings with others, and the
use of family law documents in ancillary proceedings which are running concurrently.
General rule on communications
Under the Family Law Act 1975 it is a punishable offence to communicate any account
of any family law proceedings which identifies any parties and witnesses in any court
proceedings.
What is a communication?
When considering the meaning of ‘communicate’, the Court adopts the ordinary,
everyday meaning. That is, it is a punishable offence to communicate by any means,
including:
1. Publication in a book, newspaper, magazine or other written publication.
2. Broadcast by radio or television.
3. Public exhibition.
4. Broadcast or publication or other communication through the internet (including
social media).
What about discussing proceedings with family and friends?
Under the Family Law Act, it is not a criminal offence to have a private discussion about
a family law legal matter with friends or family, depending on the circumstances of the
conversation.
For instance, if the conversation is held on social media where it can be viewed by other
individuals, then this could constitute a publication of information.
Using family law documents for other purposes & the Harman Undertaking
Parties to a family law matter have an obligation to not release information or documents
which have been obtained during the course of litigation for a purpose other than their
intended purpose – that is, for use in the family law proceedings. This is referred to as
‘the Harman Undertaking’.
Other uses of family law documents
Sometimes, the family law matters will run at the same time as an intervention/criminal
matter and there is information in the family law matter which may be relevant to the
other matters. For example, there may be:
1. A report which is relevant to the intervention/criminal matter.
2. Information on an Affidavit which is relevant to a criminal matter.
3. Orders in place which already address the issues being run in an intervention
order matter.
It is possible to use documents from family law proceedings for the other proceedings,
however the party seeking to use the documents will need to obtain special permission
from the family law courts. This can be a complex area of law.
Penalties
If someone is found to have breached the Family Law Act or their Harman Undertaking
obligations, the following can occur:
1. Removal of the publication.
2. The publishing party can be restrained by injunction from publishing anything
further.
3. The matter can be referred for criminal prosecution.
4. The imposition of a fine.
Other consequences of publishing information
Even if a criminal prosecution does not proceed, in some cases, the publishing of details
about family law proceedings by one party can lead the court to conclude that it was
done to make the other party to feel threatened, harassed and/or intimidated, even if the
publishing party removes the publication.
If that is the case, then in some cases the other party may take steps to make an
application for a domestic violence order or report the behaviour to police and ask police
to make an application for a domestic violence order on that person’s behalf.
Next steps
If you or someone you know wants more information or needs help or advice with their
family law matter, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course
of action.