Feb 4

DEFAMATION AND FAMILY LAW

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DEFAMATION AND FAMILY LAW

As a solicitor working extensively in family law, clients often ask me about remarks made by their former partner, or a proxy for their former partner, which remarks the client regards to be defamatory. Sometimes these remarks are published in social media. I have been shown evidence from social media of such statements. The first thing to note, is that if proceedings are on foot under the Family Law Act, then the Family Law Act specifically makes it an offence to publish an account of the proceedings, where ‘publish’ has a wide reading in its application. The second thing to note is the clear evidentiary hurdle of proving the author of such material. Third, and now more even more interesting, are recent jurisprudential developments as highlighted in the following piece published in the Guardian: “Facebook defamation: man wins lawsuit over estranged wife’s domestic violence post.” [02.01.2015]

The Guardian reports that the District Court in Western Australia awarded schoolteacher Miro Dabrowski $12,500 in damages, to be paid by his former wife, following a suit in defamation brought by Dabrowski against the ex-wife. The wife’s defaming act was a Facebook suggesting she was the victim of domestic violence made in the following terms:

“Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe.”

She removed the Facebook comments upon receipt of a letter from Dabrowski’s lawyer.

Dabrowski led evidence from 3 witnesses:

1. His girlfriend, who split up with him for 10 months after reading the post;
2. His brother, informed the court the post caused him to doubt his brother’s character; and
3. Dabrowski, himself, informed the court he was concerned the post would affect his teaching career.

The Guardian reports the wife’s Facebook statements, were found by the District Court, to be not proven.

The wife’s defence was held to be not sustainable. There were 2 elements to it:

1. Whilst she had written part of that statement into Facebook she had not published it, suggesting her computer had been hacked to create the screenshot of the post that was used in the trial.

2. She also argued her post was not defamatory or, if it was, then it was ‘justified’, which defence allows the publication of defamatory material if it can be proved to be “substantially true”. In her defence she is said to have reported a long history of emotional and occasionally physical abuse, which commenced shortly after the parties’ marriage in 1992, which ended when police served Dabrowski with an interim violence restraining order. Dabrowski denied he was ever abusive.

District Court Justice Bowden found some of the wife’s comments about the nature of the relationship to be “incredulous”; and significantly, that it was the wife’s “implausible” claims about the Facebook hacking which undermined her credibility, and meant he could not find she had been the victim of domestic violence and abuse on her word alone, and he held that in defamation proceedings, a contrary finding can be made solely on the evidence of one partner against the other. Because her credibility had been “so badly effected” then in the absence of independent evidence or documents contemporaneously made with the events complained of, the Court preferred Dabrowski as a witness of truth.

District Court Justice Bowden said Dabrowski was “an experienced educator and is entitled to public vindication”.

What about in New South Wales

The NSW District Curt recently, in 2014, ordered a former high school student to pay $105,000 in damages to the former music teacher after the Court held the former student had defamed the teacher on Twitter and Facebook.

Do you think you have been defamed?

If you think you have been defamed by an ex partner, please contact me for a no obligation discussion. It is an area of the law I am genuinely interested in discussing with you.

You can read the article here:

http://www.theguardian.com/technology/2015/jan/02/facebook-defamation-man-wins-lawsuit-over-estranged-wifes-domestic-violence-post