Character Assassination in Family Law

According to popular opinion, the bubonic “black plague” which ravaged and ultimately killed between 30 and 60% of the European population in the late 1340’s was caused and spread by the rats living in those areas at that time. Scientific investigation however, shows that the disease was never in the rats but instead carried by the fleas living in their fur. In truth therefore the rats’ only crime was failing to rid themselves of an unwelcome yet impossibly persistent parasite! Despite its obvious innocence however, the rat continues to bare the scorn and distain of the responsibility for the terrible events of those times.

In a Family Law case whether over property division or children’s issues, spouses or parents are unfortunately quite prone towards making wild and highly damaging allegations of impropriety against the other.

Sadly in many circumstances, the allegations are false or highly exaggerated and often leave the accused spouse/parent devastated and eager to clear their name.

In any other scenario away from the Family Court, Queensland anti-defamation laws provide for the payment of monetary compensation and/or the publishing of retractions or apologies where appropriate. In a Family Law dispute however, these laws usually do not apply. In their place, a number of different protections have been set up as follows:

  • Non denigration Orders:  In children’s cases, Orders which prohibit parents and associates from making derogatory statements about the other parent/carer to or within ear shot of the children, are routinely made. The philosophy is that if a Court rules a parent can be trusted with the responsibilities of child care, then informing or reminding a child about a person’s past impropriety (whether false or true) will only serve to confuse and harm the child. Non denigration Orders are difficult to police but nonetheless have a definite quelling affect.  Although far less common, Family Court Judges also have the power to make Non Denigration Orders between warring spouses on non child related issues. For example in a recent case, a husband was ordered to cease referring to his ex wife as “gold digger” in the automatic money transfer being made between his bank account and hers on a weekly basis.
  • Non publication of Family Court proceedings: Section 121 of the Family Law Act makes it a crime punishable by up to 1 year’s prison for any person to publish, broadcast or otherwise communicate any information exchanged through the process of a Family Law case in any external forum without first obtaining the permission from the Court. By operation of this law therefore, derogatory statements, however hurtful are at least quarantined to the papers of the Family Court file and the ears of the Judge, Lawyers and Court staff who undoubtedly have “heard it all before”.
  • Bar Association Rule No. 40:  Under this Rule, a Barrister who questions or attacks a witness in the course of a trial and makes allegations of fraud or untruths without reasonable justification for doing so, can face disciplinary action from the Bar Association which could involve fines, suspension or even disqualification from practice in serious circumstances.
  • Section 117 Family Law Act:  Under this provision, a person who knowingly makes a false allegation or statement against another in Family Law proceedings must be ordered to pay the other person’s legal costs of the defence.
  • Section 67 Family Law Act:  Under this provision, a person who makes an allegation of child abuse against another is obligated to report the abuse to the relevant State’s Department of Child Safety.  This ensures that the relevant Government Department specialised for the investigation of these sorts of allegations is put on the case in a timely manner so that they may attempt to determine whether the allegation is true or false.  If the allegation is found to be false then both the Department and the Family Courts can take action against the false accuser although, this usually translates into the accuser having their time with the relevant child(ren) limited, controlled or stopped altogether.

If the experience of the humble rat is anything to go by, a false allegation can quickly take a reputation from tarnish to black if not appropriately controlled and contained.  Ultimately, no system is perfect but thankfully the Family Law system does bring a number of very useful and effective initiatives to bear.

Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.