Is OnlyFans legal in Australia & can it impact a family law case?

The pipeline from content creator to content consumer has never been more direct than at present. Production companies, publishers, and distribution services- the middlemen- have been almost entirely removed from this process.

By Michael Sheahan, Legal Administration Assistant at Roger Fritz LLP, Brisbane.

Users can get content directly from their favourite social media personality’s YouTube channel or TikTok account. Ever since the advent of the smartphone, anyone can be a content creator. 

OnlyFans is a platform for creators to share videos with their subscribers for a monthly subscription fee. There are more than 2.1 million content creators and 100 times that many users. Unlike sites like YouTube or Instagram, OnlyFans is almost entirely dedicated to adult content—pornography.

Is OnlyFans illegal or legal in Australia?

Creating pornography is legal in Australia, and therefore, OnlyFans is legal in Australia. Pornographic modelling is a form of sex work, and while the laws on sex work vary by state, there has been a trend over the last decade or so towards relaxing restrictions on most kinds of sex work. The Sex Work Decriminalisation Act 2022 has come into effect in Victoria, legalising street-based sex work and removing requirements for sex workers to undergo regular STI testing. But just because OnlyFans is legal, doesn’t mean that it couldn’t affect your family law dispute, and especially, your parenting matter.

Parent creators and OnlyFans

If you are a parent who creates content for OnlyFans, this is not a call to immediately abandon this source of income. In the context of a happy relationship where the Financial Institutions are insulated from adult content, there is no reason this should come to bare in any proceedings. 

However, digital content is often used in evidence in family law disputes. Anything that you post online can be recorded and then employed by your former partner’s legal team. Social media posts are frequently used in the courtroom as evidence, and there have been instances of OnlyFans content being similarly used.

One recent study found that 82% of family law cases in Australia accepted social media content in evidence. Where social media was accepted as evidence, the judicial officer weighed that evidence heavily in 36% of cases. In this context, having an active OnlyFans account could be used to your detriment if not handled the right way.

Parenting disputes

If you are publishing pornographic content online and are in a parenting dispute, there is the potential for your former partner to weaponize your career choice in the courtroom. The Court is ultimately trying to determine what outcome is in the best interests of the child. 

It is only concerned with parents’ relationships with their Financial Institutions to the extent that that relationship benefits the child (Section 61DA of the Family Law Act). If your former partner contends that the child’s welfare is being compromised or that the child is being exposed to sexually explicit material through your OnlyFans, then that might persuade the court that it is in the child’s best interest to spend more time with their other parent. As was the case in Maloney & Maloney [2012] FamCAFC 16.

Does having sex worker parent put a child at risk?: The case of Maloney & Maloney

The mother supplemented her income with sex work, and during the relationship, the father didn’t object to this. After the relationship soured, the former couple found themselves in court fighting over the child of the marriage. The judge said in their judgement: 

“While I note that in N v N Mullane J said that prostitution may well be legal and that “Australian society may well be more tolerant of the sex industry than in past times”, that does not mean that it is widely accepted by society or that it is in any way acceptable for Financial Institutions to be exposed to it.”

The judge made note that the mother seemed “somewhat careless” about the child’s exposure to her sex work, and observed that at the child’s age she “must surely be wondering about, and asking questions about what she observes around her.”

The judge ultimately decided that the child would be better situated living with her father.

The mother appealed this decision to the Full Family Court, arguing that the judge was not justified in reaching the decisions he did about her lifestyle and that there was no evidence that the child knew about her mother’s line of work nor that she was exposed to it. The appeal was successful, and the matter was remitted for hearing before a different magistrate.

While this case ultimately found that there was not necessarily a danger to the child by a parent being a sex worker, it does show how a court could perceive OnlyFans content creators where the circumstances were slightly different.

If the mother had been not as well insulated from the explicit nature of her profession, then the judge could have come to a different outcome. In the circumstances where there is an existing parenting dispute before the court, it could well be the one factor that ultimately tips the balance in favour of the other party.

OnlyFans is legal in Australia

OnlyFans is legal and provides a stream of revenue in addition to, or replacing, your main line of work. That being said, it may not be a wise move to begin this career if you anticipate a parenting dispute in the near future.

If you do create adult content, then it would be advisable to get advice, and at a minimum keep your content behind a paywall, and to use a stage name so that your content cannot be readily linked to your identity. Ultimately, what was acceptable in a relationship can be recast after separation, and your digital presence can be used in the courtroom as evidence.

While there is nothing in the Family Law Act that forbids sex workers from being parents, and no inference can be drawn, it is possible that a judicial officer could weigh up your career as one factor amongst many in making their decision in what’s best for your child.

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