An article on Stuff (also published in the Sunday Star Times on 23 December 2012) reports the Family Court is inserting "gagging orders" into court orders, thus preventing participants from posting complaints about their former partners on social media websites. I have been a family lawyer for almost 14 years and I have never seen a condition in a Parenting Order specifically “gagging” a parent.
The issues the Family Court deals with are very personal to the participants. There are many different times when information is confidential. For example:
- What is discussed at counselling sessions, mediation conferences and Family Group Conferences. This is so that participants can speak freely and honestly without worrying that what they say is going to be used in Court.
- What is said in social work or psychology reports because it is private to the people involved.
- Making offers on a “without prejudice” basis. This is so we can make settlement proposals and negotiate without compromising the position we would otherwise be advancing in litigation.
- There are also restrictions on what can be published by the media and how Judges’ decisions can be published. If you look at written judgements the names of the parties are often changed to protect their privacy.
Therefore we shouldn’t be surprised that there are further attempts to keep personal information private particularly when at the centre of the conflict is children.
The difficulty with social media is that it can be accessed quickly, typed without thought or in the heat of the moment, distributed to a potentially very wide audience and then be difficult to contain after publication. People commenting on Facebook or Twitter about their separation and their ex is very common. I have also seen the publication of parts of affidavits on Facebook (documents which are usually kept confidential). The outcome of such comments is rarely helpful to the resolution of the proceedings. It means that friends or family jump on board the band-wagon adding their 2c worth and my view is that the result is usually a heightening of conflict or bitterness.
Parents who separate seem to forget that their parental relationship is going to remain even when their personal one has finished. Most children can cope with their parents separating. What they struggle with is the conflict. In my role as Lawyer for the Child it is very common for the children’s wishes to be for Mum and Dad to stop fighting and be nice to each other. Sometimes the best common sense is coming from the children.
I haven’t seen or used “gagging” clauses in Parenting Orders. But would I? I expect so. I think there is a time and a place for them. My question is how successful such a clause will be.