Family law proceedings in Australia often involve highly emotional and contentious issues, from custody battles to property disputes. It is not uncommon for parties involved in these proceedings to resort to various legal strategies, including defamation claims, in an attempt to protect their reputation or gain an advantage. However, it is crucial to understand the limitations and legal constraints associated with defamation claims in the context of family law matters.

Defamation in Australia in Family Law Matters

Defamation, a legal concept that pertains to false statements that harm an individual's reputation, is a contentious issue in family law. Parties embroiled in family law proceedings may make damaging statements about each other, often related to issues such as child parental responsibility, financial matters, or allegations of misconduct. The question that arises is whether these statements can form the basis of a defamation claim.

Absolute Privilege in Court Proceedings 

In Australia, defamation laws are primarily governed by state legislation. Under the Defamation Act 2005 (NSW), one of the key defences against a defamation claim is ‘absolute privilege’, as outlined in Section 27 of the Act. The defence of absolute privilege provides a full immunity against defamation claims for statements made during certain proceedings, including court proceedings.Absolute privilege essentially means that statements made within the confines of these privileged proceedings cannot be used as the basis for a defamation claim, regardless of whether the statements are true or false. The rationale behind this legal principle is to encourage open and honest communication within these proceedings without the fear of legal repercussions.

An Example to Explain

To illustrate the application of absolute privilege in family law proceedings, consider the following example involving two parties, A and B, who are in the midst of a parenting dispute. During the court proceedings, A alleges that B abused their children on a regular basis. B vehemently denies these allegations and believes that A is defaming her.In this scenario, B consults defamation lawyers seeking legal recourse for the alleged defamation. However, the lawyers advise against pursuing a defamation claim in court.This advice is based on the fact that A's statements about B were made within the context of family law proceedings, where absolute privilege applies. Therefore, A is shielded by absolute privilege and B cannot use these statements as the basis for a defamation claim. 

In Conclusion

In the context of family law proceedings in Australia, parties should be aware of the legal constraints surrounding defamation claims. Statements made during court proceedings, whether true or false, are typically protected by the principle of absolute privilege, as enshrined in Section 27 of the Defamation Act 2005. This protection is vital to ensure that individuals involved in family law disputes can express their concerns and allegations openly within the legal process without fear of facing defamation claims.If you are separated and looking to have it legally recognised, it is highly recommended that you seek legal advice before applying for divorce. To discuss your Family Law matter and find the best option for you, please contact our Sydney Family Law team on 02 9891 6388.

New South Lawyers’ communications are intended to provide commentary and general information. To that end, people should not rely on this communication as legal advice. Accordingly, they should seek formal legal advice for matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.