It’s possible to make your divorce even more complicated by being accused of defamation.
In Queensland, defamation is the publication of unsubstantiated ‘facts’ that negatively impacts the reputation of an individual (the ‘aggrieved’). The purpose of a defamation action is to correct public perceptions and compensate the aggrieved for harms caused. Queensland’s Defamation Act defines ‘publication’ to include: online media, writings, drawings, and speech.
The ‘publisher’ is the person who made the defamatory statement. With the amount of information published on the internet, especially through social media, the law of defamation has become increasingly relevant. The publication online of any defamatory content, including the creation of links to defamatory content or emailing defamatory content to others, can create liability.
To successfully prosecute a defamation case, you need to show the following:
- Publication – the information was communicated to a third person other than you;
- Identification – the material identifies you either by name or you could reasonably be identified; and
- Defamatory matter – the information/material contains matter that is defamatory, regardless of whether that was intentional or not.
What does this have to do with divorce? Defamation can occur when one ex-partner states unfair and untrue statements regarding the other person. In some occasions, this can end in a court battle.
A Queensland Defamation Case
June Marion Kelly, a Queensland woman, finally received justice when she was awarded $10,000 after a court battle. The case started when her ex-husband posted an unfair remark on Facebook that she deemed defamatory. Ms Kelly originally sought $150,000 after Mr Levick stated:
“June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in hell”.
Ms Kelly’s issues with the statement in the Facebook post implied that she held a mental disorder and was a thief, as she apparently ‘screwed’ Mr Levick out of 3 million rand (the South African currency). The Magistrate stated that the post was obviously stated due to the circumstances of the divorce and while Mr Levick argued that the post was supposedly meant to be set to private, the Court decided that was not a proper defence and awarded Ms Kelly $10,000
Citing a long-standing ruling, the judge deemed it not a sufficient defence. “… Liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional …” the ruling read.
Another example of defamation occurred when one schoolteacher’s ex-wife created a Facebook post in which she made reference to her ex-husband being abusive. The offending post, which was posted on his estranged wife Robyn Greeuw’s public Facebook profile in December 2012, read: “Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe.”
Due to this post, Mr Dabrowski lost his long term girlfriend, his brother’s faith in his character and made his employer question his capability to be a schoolteacher. The ex-wife tried to defend herself by questioning whether the post had actually been posted by her and the fact that she claimed she had in fact experienced a small amount of abuse during their marriage. The courts ruled in favour of Mr Dabrowski. The judge said Greewu’s “implausible” claims about how the Facebook post came to be undermined her credibility, and meant he could not find she had been the victim of domestic violence and abuse on her word alone.
Be Careful About What You Say
It might be tempting to vent about your ex-spouse on your social media accounts, but you might end up in court as a result. It’s important to know that Family Court proceedings are privileged (confidential). You’re not allowed to publish anything about the proceedings.
It’s also a serious issue to make false allegations about family violence or abuse. S67Z and s67ZBB of the Family Law Act provide for what should happen if someone makes an allegation regarding child abuse or family violence – the Court takes allegations of child abuse very seriously and if it is found that a party has intentionally lied and misled the Court, then the Court has power to make a range of Orders. The more serious the allegation, the better evidence you will need to back it up. If there is no corroborating evidence, and there is evidence to the contrary, then the Court can make Orders against the person who made the false allegation which in child custody matters can be to change who a child lives with.
If you’re in a situation where your ex-spouse is making damaging comments about you while you’re going through Court proceedings, you can seek an Order to stop the other party making damaging comments about you to people. If that person breaches the Order then they can be fined or worse.
The best thing you can do during a divorce is vent to a trusted friend or a mental health professional. Giving into the temptation to denigrate your ex publicly could lead to a new and costly court battle.