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Publication of Family Law Proceedings: Section 121

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Section 121 of the Family Law Act imposes a widespread prohibition on the publication of any part of family law proceedings. The provision makes it unlawful (subject to exceptions) to publish information that identifies any person who is a party to such proceedings or who is otherwise connected to proceedings. The rationale behind this provision is to protect the privacy of individuals and families, particularly in matters involving children. However, the provision has attracted criticism from those who say it leads to lack of transparency and accountability in the family court system.

What is prohibited?

Section 121 of the Family Law Act forbids publishing any particulars that are likely to identify a person who is connected to the proceedings. This includes:

  • Names;
  • Residential or work addresses;
  • Physical description;
  • Employment, profession, occupation or calling;
  • The relationship of the person to other individuals;
  • The interests or beliefs of the person; or
  • Any property the person owns or is associated with

where these particulars are sufficient to identify the person to some or all of the public.

It also includes an account of proceedings that is accompanied by pictures of the person or an audio recording of the person’s voice

What is publication?

Publication, for the purposes of Section 121, includes publication in a newspaper or periodical, on the radio or television or by electronic means. This includes publication on social media and applies to persons who are involved in the proceedings as well as to those who are not.

Criminal offence

It is an indictable offence to publish information in contravention of Section 121. However, a prosecution for this offence can only occur with the consent of the Director of Public Prosecutions. The maximum penalty for this offence is imprisonment for one year.

Where a person involved in family law proceedings publishes information in contravention of Section 121, the court may make orders requiring the person to remove the material and to refrain from publishing any further material. The matter may also be referred to the police for investigation and possible prosecution. This is particularly likely to occur where the publication appears to be intended as an attack on the court system, the judge or the lawyers involved or where it is an attempt to interfere with the administration of justice.

Exceptions

There are a number of exceptions provided for in Section 212. Exceptions to the prohibition on publication apply where the publication consists of:

  • The release of documents to a person for use in the proceedings;
  • The communication of documents to authorities responsible for the welfare of children;
  • The communication of documents for the purpose of disciplining members of the legal profession;
  • The communication of documents for the purpose of obtaining a grant of legal aid;
  • The publication for the use by members of a profession, such as in a series of law reports or for students in connection with their study;
  • A publication that has been approved by the court.

Social media

A lot of people who are involved in family law proceedings forget that the Section 121 provision includes social media posts. Remember that while you are going through family law proceedings you should not:

  • Post anything about the proceedings on social media
  • Post any identifying information about anyone else involved in the proceedings;
  • Post anything derogatory about the other party or about the family law system or people involved in it.

Remember that once you post something online, you lose control of it. Anything that you post on social media could be used against you in the proceedings or to establish that you have committed an offence under Section 121.

Criticisms of Section 121

The existence of Section 121 and the criminal penalties the offence carries means that journalists are very reluctant to report on family law cases. This means that the general community does not know a lot about the processes and procedures involved in the family law system. People are also often unaware of the factors that courts take into account and the decisions that judges make.

Some journalists feel that the provision does more harm than good. Author and journalist Jess Hill in her 2019 book about family violence See What You Made Me Do, argues that Section 121 ‘allows bad behaviour within the system to go unchecked.’

However, as the provision stands, parties to family law proceedings must refrain from publishing material in contravention of Section 121. It is also important to respect the provision if you are a party to family law proceedings as any infringement of the family law act is likely to create a bad impression and may damage your case.

If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.

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