Be careful what you write

by Peter Magee on July 25, 2013

Peter Magee

With the accessibility of the internet and social media forums such as Facebook and Twitter, people, especially people involved in family law court proceedings, must be reminded to be careful of what they write.

Too often, people mistakenly believe that sites such as Facebook are opportunities for them to vent their feelings about their former partner and/or mother/father to their children and to de-brief about their court experience and seek to be consoled by their online “friends”.

However, when you publish your views on the internet, you are allowing other people to read your words, and they may be people you never wanted to read them, or you may not have understood that there are consequences that may flow from your posts. Your posts can be printed and then attached to affidavits which are filed in court. They then become part of a court document which will be read by solicitors, Judges and sometimes child psychologists.

Even further than that, you could be found guilty of committing an offence punishable by imprisonment under section 121 of the Family Law Act.

In a recent case heard in Canberra before the then Federal Magistrate (now Judge) Neville in September 2012 and March 2013, reported as Lackey & Mae [2013] FMCAfam 284, the Father and members of his family, posted comments on Facebook about his family law court proceedings. The Father was warned that he risked penalty for breaching s121 by publishing details of the current proceedings. Despite the warning, the father continued to post comments on Facebook, including comments that criticised His Honour, the judicial officer presiding over his case.

His Honour made orders that the father and members of his family were restrained from publishing or otherwise distributing any material relating to the proceedings, the children, the mother or members of her family, including publication on Facebook or other social media site. The father was ordered to remove all reference to the proceedings from Facebook.

Orders were made, pursuant to section 121, that the judgment and all affidavits and exhibits be made available to the Court Marshal and the Australian Federal Police and that the Marshal monitor social media for postings made by the father or his family for the next 2 years.

The Marshal was directed to investigate breaches of s121 and investigate and prosecute if appropriate.

His Honour stated at paragraphs 9 and 10 of his judgment “An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of ‘social media’. While it can be used for good, often it is used as a weapon, either by one or both of the parties, and or by their respective supporters. It is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore for (invariably incriminating) “evidence” to be used in litigation. As a weapon, it has particularly insidious features. Unfortunately, in the context of this matter, ‘netiquette’ was not on display, and in fact, it could only be a nothing more than a euphemism for outlandish electronically-fomented conduct.

For example, it seems often to be the case that people will put on such media (particularly but not only Facebook) comments that I suspect they would not say directly to the person against or about whom such remarks are directed. In this regard, such remarks are, in my view, a form of cyber-bullying. Often, they are very cowardly, because those who ‘post’ such derogatory, cruel and nasty comments (regularly peppered with disgusting language and equally vile photographs) appear to feel a degree of immunity; they think they are beyond the purview or accountability of the law, and that they need not take any responsibility for their remarks. They inhabit the cyber-sphere and operate as ‘Facebook rangers’ who ‘hit and run’ with their petty and malicious commentary, and seem to gloat (or be encouraged) by the online audience that waits to join the ghoulish, jeering crowd in the nether-world of cyber-space. To a significant degree, such conduct has been on display here.”

So be careful what you write. As they say “anything you say can and will be used against you” and if you have put it in writing then you have no room for denial.

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