Privacy and the Family Court

28th Sep 2015

Before no fault divorce was introduced in Australia, people getting divorced in the Supreme Court of Western Australia could have their photographs taken and details about their case published in the newspapers.

In 1975 “no fault” divorce was introduced. Parliament decided that under the new law there would be a complete embargo on publication of information that could identify people going through the divorce court, the Family Court of Western Australia.

Section 121 of the Family Law Act (and applying in Western Australia to de facto relationships under the Family Court Act) prevents any publication that will identify the names or otherwise enable identification of people engaged in family law disputes about their children or property or spousal maintenance. The publication of discrete court lists is a practical exception to the rule.

The purpose of Section 121 of the Family Law Act (and the equivalent for de fact relationships) is to preserve the privacy of individuals in their private life.

People can unwittingly break the law by letting their friends know that they are going through the Family Court on their Facebook or similar sites, or tweeting about it.

Cases that are reported in the press show the names of the people involved lawfully, only if the Court has given permission for the report to be made. This happens most often in relation to missing children where real names as well as aliases may be given.

Important legal cases are published with ‘de-identified” names, continuing the protection of the people concerned.

The privacy embargo includes court documents and reports that are not allowed to be circulated by the people involved even to their family and friends.

The proper presentation of a person’s case may involve family and friends knowing about the court case in a managed way, if they are to be witnesses or can otherwise be lawfully involved.

The Court considered the application of Section 121 back in the last century (Re W: Publication Application [1997] FAmCA 8), Re South Australian Telecasters Limited (Publication Injunction [1998] Fam Ca 117). In the first case the court decided it was proper to give the child welfare authorities a copy of the court’s decision and in the second, the court ordered a television station not to broadcast interviews with people involved in a court case (without their names being given) because as the judge said “anyone who knew any of the parties would have been able to identify them from the voice” and he decided that even if the voices were disguised. that people living in the small township would be able to identify them.

More recently in Norton & Landell (Suppression and Non-publication Orders [2015] FamCA 125) the court had to consider the impact of publication of even anonomysed reasons in a case that involved a convicted paedophile father. The court was not persuaded to made that order but held back the reasons just for expiration of the appeal period.

The seriousness of the Court’s approach to upholding the privacy provisions of the family law legislation means that if someone ignores the law they give the other party in their court case a possible advantage. By ignoring the law, that person shows that that they disrespect the process and so undermine their own credibility.