FLAST CASE SUMMARY: Hadir & Fells and Ors [2018] s 121-INJUNCTIONS

Hadir & Fells and Ors [2018] FamCA 968 (21 November 2018)

Can you contravene parenting orders by posting information about proceedings, the children, or the other party on social media?

Yes, you can!

However, what may happen when it’s the child instead of the parents who posts particular content during proceedings?

In this case a mother became aware of a Facebook post, allegedly made by her teenage child who resides with the father. The post makes various criticisms of the mother, an advocate for domestic violence reform, in the context of the mother’s own conduct and behaviour within the household and in her relationship with her estranged partner and her children.

The mother was subsequently contacted by an associated producer of a program and asked if the statements in the post were true and if she would go on public record on the issue. The mother was told the concerns raised by the Facebook post were due to air.

B Ltd ultimately published the issue raised by the Facebook post by broadcast, the mother sought to stop it from being published however, there was a mis-timing with communication between the mother’s solicitor and company employee, by just a few minutes.

It was established the Court is not in a position to restrain the child, however it is appropriate in the best interests of the child to enable orders for the directors, employees and agents of and for B Ltd, C Pty Ltd and such other media outlets as determined appropriate by the mother to not broadcast or to further publish any posts or further information by the child regarding the ongoing family law dispute between the father and mother involved in the proceedings. 

Here at FLAST we understand that ANYTHING you say or post on social media whether intentional, implied, and mistaken, may be used as evidence in Court.

This is why at FLAST we are managing it quite strictly in terms of member privacy.

FACTS SUMMARY:

  • The mother’s teenage child who resides with father made a post that seeks to engage in public debate about domestic violence, it makes various criticisms of the mother, an advocate for domestic violence reform, in the context of the mother’s own conduct and behaviour within the household and in her relationship with her estranged partner and her children.
  • The post does not indicate any court proceedings or make any mention likely to identify any party or related party to the court proceedings.
  • The mother was then contacted by an associate producer of a program and asked if the statements in the post were true and if she would go on public record on the issue. The mother was told the concerns raised by the Facebook post were due to air.
  • The mother sought an undertaking from B Ltd that it would cease-and-desist publication of any material or information regarding the children or the mother in her capacity as a mother.
  • 4.56 pm, that day the mother’s solicitors received an email from B Ltd stating “your response is noted, and I confirm that at this stage, without any admission, [B Ltd] does not intend to proceed with publication of these allegations tomorrow”
  • 5.28 pm another broadcaster employed by a wholly-owned entity of B Ltd, C Pty Ltd broadcast the contents of the alleged Facebook postwith the broadcast also being available for listening or viewing through the Internet.
  •  5.30 pm the mother’s solicitor contacted B Ltd and was informed that a direction had been issued not to publish. It appears that subsequently the availability of the broadcast has been removed from the Internet.
  • 20 November 2018, the mother files an application for injunctions to restrain asserted breach or likely breach of s 121 of the Act against the respondent B Ltd to restrain the broadcasting of any broadcast or publication of Facebook posts by the child who is subject of ongoing parenting proceedings.
  • The Independent Children’s Lawyer supports the injunction in the best interest of the child.

ISSUE:

Has a breach of s 121 of the Act occurred?

Can relief be found for an injunction to restrain asserted breach or likely breach of s 121 of the Act?

HELD:

Injunctive orders are made.

It was established that the Court can not restrain the child, however it is appropriate in the best interests of the child to enable orders for the directors, employees and agents of and for B Ltd, C Pty Ltd and such other media outlets as determined appropriate by the mother to not broadcast or to further publish any posts or further information by the child regarding the ongoing family law dispute between the father and mother involved in the proceeding.

Furthermore, it was determined the alleged Facebook post by the child does not violate section 121.Additionally, the broadcast did not breach section 121either, however the court stated at [24], the reality is that the engagement of a child in a public debate about domestic violence by involving her parents and, in particular, the mother in scandalous and untested allegations is inappropriate where there are ongoing proceedings in this Court where such allegations are to be tested.

It was established that Section 121 does not of itself have any injunctive power to restrain any asserted or ongoing breach of its terms: Gibb & Gibb (1978) FamCA 8. The solution is found in the Court’s injunctive powers in ss 68B and 114 of the Act: Xuarez & Vitela [2012] FamCA 574 (Forrest J).

Section 68B of the Act relevantly provides:

(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

 

 

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