Family Law Act Section 121: Publication
Divorce is usually a stressful and upsetting process for both parents and any children involved. In Australia, the courts attempt to minimise the impact of the legal process on divorcing parties and their families, principally by protecting their privacy. This provision is authorised by Section 121 of the Family Law Act 1975, which imposes a broad prohibition on publication of details relating to a family law proceeding. There are a handful of exceptions to this rule, but as a general principle, it is unlawful to broadcast the identity of any party involved in such proceedings. While this provision has good intentions, critics argue that the law promotes a lack of accountability and transparency in the family court.
What is Prohibited under Section 121?
Section 121 of the Family Law Act prohibits the publication of any specifics that are liable to identify a party to a family law proceeding. While the rule was originally intended to prohibit outside individuals (such as journalists) from identifying parties in publication, the prohibition also applies to parties of the proceedings themselves.
The following descriptive factors are prohibited where they are sufficient for identification:
- The names of those involved
- The home and work addresses of the parties
- The nature of the relationship between the individual and the other parties
- Any identifying physical description of the individuals
- The profession or occupation of the parties
- The faith or religious affiliation of a person
- The hobbies or interests of an individual
- Any real estate that a person owns
Publication of photographs or audio recordings of the parties is also prohibited where mention is made of the proceedings.
What is Publication?
For the purposes of Section 121 of the Family Law Act, the term ‘publication’ refers to publication in print through a periodical or newspaper, and through electronic means on television or radio. In recent decades as technology has allowed the average person to publish information to the world, this rule has extended to publication on social media platforms.
Publishing information in contravention of Section 121 of the Family Law Act is an indictable offence, punishable by a maximum penalty of imprisonment for one year. However, prosecution of this offence is at the discretion of the Director of Public Prosecutions, and it is rare for cases to proceed to incarceration. Contraventions are more likely to be referred to the police if a publication attempts to interfere with the administration of justice, or attacks the court system, the judge or the retained lawyers. In Xuarez & Vitela (2012), a father had created a website which published identifying details of a family court proceeding and the parties involved. The website included photographs of the lawyers and testifying experts, labelled ‘list of corrupt legal professionals’. The presiding judge found that the content scandalised the court, and recommended that the father should be investigated for breaches of Section 121 of the Family Law Act.
The court will typically also order the removal of any identifying content and issue an injunction prohibiting any further publishing of material relating to the matter. The court will usually rely on common law principles in addition to Section 121. For example, in the 1998 case of Re South Australian Telecasters Ltd, a television show was prohibited from publishing a broadcast not only because of section 121 but also because it allowed for the identification of the children involved, was inaccurate and unfair, brought the court into contempt and placed undue pressure on a judicial officer. In practice, Section 121 is less likely to be invoked than Section 112AP of the Family Law Act. Under 112AP, publishers have been found to have acted in a way “calculated to bring the court into contempt or lower its authority”.
There are a small number of exceptions to Section 121 of the Family Law Act. The permitted exceptions for publication of information are:
- The release of documents for use in the proceedings
- Communication to authorities in relation to the welfare of children
- Publication for the purpose of disciplining members of the legal profession
- To obtain a grant of legal aid
- For use in a professional capacity (eg in law reports or for research students)
- Any publication that has the court’s approval
In the modern world where the minutiae of people’s lives are posted on platforms such as Facebook and Twitter, it may seem natural for people to share details of their divorce on social media accounts. A common misconception is that Section 121 does not apply to social media publications, but this is far from the truth. Parties to a family law proceeding must not:
- Post anything related to the proceeding on social media
- Post any identifying information about parties.
- Post any derogatory comments about the family law system, the parties to the proceeding and the judge and lawyers
In the 2013 case of Lackey & Mae the father and his associates made several Facebook posts which were found to denigrate the court and reveal information about the proceedings. The presiding judge criticised the father’s actions in court and, while other factors were considered in his ruling, the father’s conduct during the proceeding was a relevant factor in the judge’s order that the father have no further contact with the children.
Criticisms of Section 121 of the Family Law Act
The prohibition against publishing identifying details in divorce proceedings means that journalists do not often report on family law cases. The inevitable result is that the family law system is unfamiliar and intimidating to the community. This is an instance when the interests of individuals are positioned above the broader interests of the community, which may be a fair compromise, considering that divorce proceedings are the personal lives of one family made subject to the legal system.
The family law experts at Armstrong Legal can advise you further about the protections afforded by Section 121 of the Family Law Act. We can also help if you think you have breached the provision, so please call us on 1300 038 223 or email to make an appointment.