Federal Court Judge Warwick Neville orders investigation into father’s Facebook posts

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facebook, defamation, s121, family law actDIVORCING parents who use the “insidious features” of social media as a weapon will put at risk their custody arrangements and settlements and could even face prison, legal experts warn.

In a federal court divorce case, Judge Warwick Neville has ordered that a marshal of the court investigate and monitor a father’s Facebook posts for possible infringements of the Family Law Act.

The Act prohibits the publication of details of court proceedings – an offence punishable by imprisonment for up to one year.

There are almost 50,000 divorces in Australia each year and about half of them involve a custody battle for children.

Judge Neville said social media was an “unfortunate and increasing feature of modern litigation”, particularly in family law.

“It is a veritable Aladdin’s cave which parties (and lawyers) readily and regularly explore for (invariably incriminating) evidence to be used in litigation,” he wrote. “As a weapon, it has particularly insidious features.”

Judge Neville said commentary on social media was often “very cowardly” because those who posted “derogatory, cruel and nasty comments (regularly peppered with disgusting language and equally vile photographs)” appear to feel immunity.

“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.”

In 2011, 48.3 per cent of the 48,935 divorces granted involved a custody dispute over children.

Social media expert Dr Melissa de Zwart said people were still learning how to use Facebook carefully.

“I think we might be careful about direct posts but not other things like commenting on posts of our friends that potentially aren’t as private,” she said.

“I think as we read more about people doing things and getting into trouble, I think we are becoming more careful and more judicious.”

Dr de Zwart said a study had found people usually thought of about six people when posting instead of all their Facebook friends.

“That’s why you will disclose things and forget that you’re actually friends with your ex’s cousin,” she said.

Judge Neville’s judgment, delivered recently in the Federal Circuit Court, said that in this particular case, the father’s family had posted comments that denigrated the court and the litigious process, as well as detailing and commenting critically on information regarding the proceedings.

The posts “bluntly” claimed the magistrate, the court and experts had been duped by the mother and that she regularly abused her children.

Tindall Gask Bentley partner and family-law specialist Jane Miller said social media was a common part of divorces.

“We see clients that either make poor decisions on what they publish on Facebook or those who routinely stalk their partner’s Facebook page,” she said.

Ms Miller said most users of the Family Court system did not appreciate the section of the Family Law Act that prohibits them from publishing details of the court proceedings.

She said the classic example of what could potentially breach the Family Law Act was people showing affidavits from the court proceedings to their friends and family.

Norman Waterhouse associate Emma Dodson said she warned clients about posting on Facebook when starting divorce proceedings.

“We had cases before we started this policy where clients have written things on their Facebook which weren’t favourable to their case,” she said.

Relationships Australia senior counsellor Margie von Doussa said she would advise divorcing couples to “unfriend” their former partners.

“For the short term, we need to absolutely not be connected on social media in any way,” she said.

Ms von Doussa said people did not want to read about their ex’s good day or the intimate details of their post-break-up life.

“People can’t suddenly go from being in a relationship to being great mates,” she said.

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