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Facebook posts feature in family law dispute

By February 7, 2019November 1st, 2021No Comments

Sharing Facebook posts about articles or videos that resonate with us is common, especially when we’re going through tough emotional times. TED talks, memes, self-help articles—so long as you’re not out there calling your ex a “violent abuser”, you can post what you like, right?  But a recent case in the family courts has again highlighted the need to tread carefully on social media.

While it might seem a no-brainer in 2019 that it’s extremely unwise to call your ex names or make negative claims about them on social media, it might be less obvious that you walk a fine line simply by sharing links which merely imply a reference to your ex. And it’s a good reminder to watch your emails, too…

The case of Bradbury & Lander [court-appointed pseudonyms] was heard in the family court in Canberra last month, when a father took a mother to court over contravention of parenting orders specifically relating to social media.

The alleged contraventions involved the mother making Facebook posts and messaging third parties with content that was denigrating of the father. But while some of the postings certainly fall into the “no-brainer” category—for example, directly describing the father as a “violent wife beating child abuser” and a “vile human being”—other breaches were more vague.

In the proceedings, the mother admitted she had made the postings and written the messages, but she didn’t accept they were in contravention of the non-denigration order that had been made in the earlier parenting proceedings. However if her content was found to be in breach, she sought to argue that she had not understood her obligations under those orders and therefore had a “reasonable excuse” for contravening them and shouldn’t be punished.

The term “denigrate” is often used in parenting orders and is defined as having the key concept of blackening the name of a person. In this case, often the offending content did not directly identify the father by name or other identifying detail. Yet context was critical in enabling inferences to be made that the posts referred to the father.

One Facebook post the mother made was found to denigrate the father despite the mother arguing that her post had only been about spouses and the male population generally. However, the court said the context of a Facebook “memory” relating to the father, together with the context of her legal proceedings with him, “support[ed] an inference that the Father was targeted in the description of him as ‘cunning and manipulative’”.

In another instance, she’d sent an email to a third party with a link to an article entitled, “I’m co-parenting with a narcissist” and the Judge found that:

The Mother strongly implies that the Father is abusive in a number of different ways and later references further abusive behaviour by the Father. The email blackens and tarnishes the Father. It forms an instance of denigration. It is clear and unambiguous.

In another instance she shared a general post about sexual harassment together with an introductory comment referring to “your violent ex”. While she didn’t identify the father as the ex, in the comments section under the post there was a discussion between her and a Facebook friend, and it was those comments that “covered the father”, leading to the “implication that the Mother has suffered domestic violence at the hands of her ‘violent ex’”.

In relation to other alleged breaches, the mother was not found to have denigrated the father. When she shared a TED video about abused wives and said she was “blessed to live in a country with gun control”, she was able to convince the court that this post referred to her previous husband and not the father in this case. The judge found this created “sufficient doubt”.

The case looked at the meaning of “intentionally” in relation to a contravention. And the court found that it was enough that the mother had “intentionally” written the offending content, rather than that she had “intentionally” contravened the orders per se.

For the four breaches that were made out, the mother argued that she had a lack of understanding that the conduct she had engaged in was in breach of her orders and said this should fall within “reasonable excuse” for a contravention. Section 70NAE of the Family Law Act deals with “reasonable excuse”, and encompasses situations where someone does not understand the obligations imposed by orders.

Among the mother’s various arguments about her lack of understanding were that she thought it was all OK because her posts didn’t identify her ex; however, the judge said: “I am unable to accept that the Mother believed that an implied reference to the Father was not covered by the prohibition against denigration…I have no hesitation in finding that the Mother understood that her communications on each of these occasions had the effect of blackening the Father’s name”. The judge pointed out the mother “has tertiary qualifications, is a person of intelligence”.

The mother also claimed certain posts were true in relation to the father:

“…the Mother gave evidence that while the reference to the Father being a “vile human being” could be denigrating, the references to him as violent, despicable and the like were truthful and therefore not denigrating.”

However, the mother’s attempt to use ‘truth as a defence’ did not work, because she still would have had to prove the truth of those assertions and she did not make any attempt to do so.

The judge therefore found that the mother did not establish that she had a reasonable excuse for her contraventions.

The proceedings are adjourned until mid-March for a decision about the consequences of the contraventions and the costs application. It will be interesting–and no doubt cautionary–to see what penalties the court imposes on the mother.

You can read the case here.

If you need assistance with a family law matter, please call Canberra family lawyer Cristina Huesch or one or our other experienced solicitors here at Alliance Legal Services, on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

You might like to read our blog regarding emails as admissible evidence.


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