While there are ways to prosecute someone through our criminal justice system for engaging in revenge porn, there is also another way to tackle the problem. And that’s through obtaining an injunction in the Family Courts. A person who breaks a Family Court Order is subject to a wide range of penalties that are comparable to the penalties obtained through the criminal court system. Let’s take a look at why you might handle a situation involving revenge porn through the Family Court system.
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What is “revenge porn” or Image Based Sexual Abuse?
The colloquial term “revenge porn” is officially known as Image Based Sexual Abuse (IBSA), as this name is believed to capture a more nuanced range of behaviours in its definition. The definition refers to instances where private sexual photographs or films are disclosed to others with the intent to cause distress.
While Australia does have criminal laws to deal with IBSA, they are inconsistent around the various states. Further, some states and territories have still not introduced specific IBSA offences. There is also no specific criminal offence at the federal level. But in the states where IBSA has been made a criminal offence, it is punishable by a prison term. For example, in NSW the term can be up to three years’ jail.
If it’s already a criminal offence, why would you go through the family courts to obtain an injunction?
There are several possible reasons why a person might choose to seek an injunction to restrain through the Family Court rather than the criminal justice system. It may be that it is more practical to obtain an injunction to restrain as part of a Family Court matter that is already proceeding as it keeps everything within the one court. Family Court injunctions can be so highly specific. Sometimes, it may be that the injunction is preferred as it is protective in nature, compared to charging someone with a crime after it has occurred. And in cases where a Family Court litigation may involve allegations of family violence, raising the issue of revenge porn and seeking injunctions in that regard can help shed light on the nature of the relationship for the court. The penalties for breaching Family Court Orders can be serious, including similar terms of imprisonment.
A case of revenge porn in the Family Court
In a recent case in the Family Court (given the pseudonym Keir & Ramsay), a former de facto couple was engaged in litigation relating to a property settlement. As part of that litigation, the de facto wife was able to successfully make an application in the Family Court for an injunction to prevent her former partner from further distributing pornographic videos that she had originally made with consent.
The couple had originally consensually produced erotic images and videos that they published on the internet as part of a “creative collaboration”. However, since separation the de facto wife withdrew her consent, yet her former partner continued to produce and publish the videos. The de facto wife initially complained to police, who spoke with the de facto husband and informed him to stop the publishing of the material, as well as stop contacting the woman directly. The police informed him if he did continue, he could be prosecuted or have an Apprehended Violence Order served on him. The de facto husband, however, continued to disseminate the material. The de facto wife then made an application in her case in the Family Court, seeking injunctions to restrain him from IBSA behaviours.
Protecting against the behaviour occurring
An injunction through the Family Court works as a protective order, to stop an ex from using revenge porn to harass or cause distress before it happens. The court can make orders that directly address specifics of the potential offence that are unique to someone’s circumstances. For instance, in the Keir & Ramsay case, the injunction restrains the de facto husand from further creating and distributing any material containing the woman’s images. It further compels him within 14 days to provide a list of third parties who may have been given access to the material, and a list of distributors (both national and international). He must also disclose any payments he has received related to the dissemination of the material. And it also compels the man to deliver up all original footage and copies in his possession or control. The Family Court orders are also to be served on “any internet carrier to whom the film, may, in future, be provided”.
Removing ISBA material from the net
It is usually extremely important to the victim that their intimate images are removed from the internet as far as humanly possible. While a Family Court injunction can compel a person to deliver up the copies they hold of such material, it can be harder to enforce removal of images from the web. In that case, the Commonwealth eSafety Commissioner has the power to order removal of intimate images from social media and the internet. The penalty for failing to comply with a removal notice is a fine of up to $105,000 for individuals, which typically motivates compliance.
If you feel you have been a victim of revenge porn, you should call the police and seek their advice, especially if family violence is also a factor. It is also a good idea to view the information on IBSA at the eSafety Commissioner’s page for information as to your best next moves. And if you wish to obtain an injunction through the Family Court system, seek the advice of a family lawyer.
If you need any assistance with a family law matter, including if you believe you have been a victim of revenge porn, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law
