The importance of the Section 121 of the Family Law Act 1975.
By Camille Eckhaus, Associate
We’ve all read the media reports about the Family Court failing to protect children from dangerous parents. These articles are always very similar. One parent, whose name isn’t mentioned, talks about the disastrous outcome of their proceedings. The other parent is almost never interviewed, nor does the Court give its view, but people who read these articles accept that all the information is accurate.
If only this were the case.
Sadly, the stories that we read can often be misleading, misguided or based on a misunderstanding of the decision made. That’s not necessarily because people lie (although sometimes they do) but because each litigant in Family Court proceedings has a different view of the evidence. After all, if they agreed on everything, they wouldn’t be at the Court in the first place.
So why is this the situation? Why aren’t litigants named in these articles, or judgments made available to the public so that the information can be verified? Why isn’t the Court invited to respond when allegations are made regarding the conduct of judicial officers or the appropriateness of decisions made?
While there are certainly people who have advocated for openness and transparency of the Family Court and its decisions, the reason this information is not provided is section 121 of the Family Law Act.
Section 121(1) makes it an offence to disseminate to the public, or a section of the public, information or documentation which would identify:
- a party to proceedings;
- a person who is related to, or associated with, a party to proceedings or is alleged to be, in any other way, concerned in the matter to which the proceedings relate; or
- a witness in the proceedings.
Clearly, that’s a very broad category of people and, while there are exceptions provided for in section 121(9), it makes reporting on Family Court matters notoriously difficult.
There is, of course, a very good reason for the law. No one wants to see the sordid details of their own separation splashed across the paper where anyone can read it. We’ve seen the articles about Kate Ritchie, followed by photographs wanting the scoop on the violence restraining order police obtained on her behalf, or the magazine coverage of famous peoples’ divorces in the United States. Think about what that must be like for just a moment. Think about what it would be like if something awful had happened to you, and the third parties you didn’t even know wanted all the details. Think about how embarrassing and distressing that would be. Think about having to explain what was going on to your children when someone in the playground spoke to them about you, or they googled you one night. Think about how your kids would feel. At times of emotional turmoil, like a family separation, no one wants that level of intrusion in their lives.
Of course, the downside to this personal privacy is that people can speak to third parties, such as journalists, and are protected by anonymity from the consequences of being less than candid. Opinion is divided about whether this is an appropriate trade.
Section 121 and You
But what exactly does section 121 mean for people involved in Family Court proceedings? What is captured by section 121? How much sharing of information is too much? If you share details of your court matters with your friends, are you at risk?
The answer, it would seem, is a question of degree. The Court has held that “disseminates to the public” should be taken as a reference to widespread communication with the aim of reaching a wide audience. This means, the more people you tell, the more likely you are to fall foul of section 121.
It’s not just about the number of people that you provide the information to, but the interest those people have in your matter. There’s a big difference between showing your counsellor documents filed in proceedings and a stranger on the street. Your counsellor obviously has an interest in the matter, in that they need to know what is impacting on your health and how best to help you. A stranger, on the other hand, has no such interest.
The principles that we can draw from the case law in this area are, therefore, that to breach section 121:
- Dissemination must be to a wide group of people.
- The people provided with information must not have a significant and legitimate interest in the information, which isn’t shared by the public.
- The people provided with information must not be ‘involved’ in proceedings.
Telling a small group of friends what’s going on over a coffee is, therefore, unlikely to amount to a breach of section 121. On the other hand, if you post details about your litigation on Facebook for your 500 friends to see, you could have a problem.
In Western Australia, you also need to be very careful about the provision of Single Expert reports to anyone else. Single Experts are people who receive joint instructions from the parties to prepare a report into a certain matter, often being the appropriate care arrangements for children.
When the Court makes orders for the appointment of a Single Expert, one order usually included is a prohibition on publishing the report or providing it to anyone else, including a professional body, without the leave of the Court. That means that, in the event you believe that the Single Expert behaved inappropriately, you cannot report them to their professional complaints body without the Court first giving you permission. You also shouldn’t provide the report to friends or relatives to read without the Court’s permission.
This order is separate from the prohibition on publication contained within section 121. You need to read your orders very carefully to make sure you’re not providing the report to someone who shouldn’t see it.
Do you need more advice about what you can say about your proceedings, or worried that your former partner has breached section 121? Call Carr & Co Divorce and Family Lawyers today.