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Family Law

Open justice, anonymity and privacy in family law matters

By June 14, 2017No Comments

By Gianna Huesch

There it was, prominently placed in the right-hand column on page three of a national newspaper: a story describing the details of the court judgment in the young mother’s family law matter. Anonymised with pseudonyms as per law, of course. But with more than enough factual detail reported for the shocked mother to feel she was identifiable to anyone who knew her in real life.

“I actually didn’t care if Joe Blow knew the details of my case, but everyone in my life who knew me, and was aware of even just the basic details of my situation, could put two and two together and realise that the story referred to me. So giving me a pseudonym was kind of pointless,” the mother says.

It turned out the journalist who had written the article was in fact an associate of the woman’s ex-partner, and had presented the story in a manner which was essentially sympathetic to his side of the story. Worse, certain details had been misrepresented, because the journalist had evidently misunderstood several important facets and confused some of the detail. The mother felt exposed, defamed and humiliated, but there was no way to correct the record.

Privacy is a nebulous concept when it comes to our open court system. To ensure transparency and accountability in the judicial system, the principle of ‘open justice’ requires that all family law court proceedings must be open hearings under the Family Law Act 1975 and any member of the public can attend court hearings, unless the court orders otherwise in limited circumstances. Open justice is balanced against the need to ensure family privacy, especially of that of any children involved. As such, there are restrictions on reporting and judgments are published with pseudonyms to protect parties’ privacy.

A pseudonym may offer a degree of privacy, but when so many other identifying details of a case are able to be reported—parties’ ages, their children’s ages and genders, the jurisdiction, details of schooling, living arrangements, financial circumstances, extended family makeup, the substance of the dispute, etc—it is not difficult for family, friends, associates, even colleagues of parties to connect the dots.

This issue serves as a reminder that if privacy is important to you with regard to the details of your divorce or parenting matter, the open court system is best avoided.  This is one of the great benefits of choosing an alternate dispute resolution method such as collaboration or arbitration, where you can ensure your complete privacy is maintained.

Here on this blog, in order to ensure that when we discuss a judgment delivered in the family courts, the facts are correctly reported, we link you to the published judgment on the online court database. This way interested readers can check for themselves whether the interpretation we’ve arrived at is in fact consistent with the facts.

If you do need to proceed through the court system and have any concerns in relation to privacy, please get in touch—when necessary, we are able to liaise with experienced privacy counsel and advise on issues relating to reputation management.  Please contact Cristina Huesch here at Alliance Family Law on (02) 6223 2400 to set up an initial no-obligation free conference.

Read more on privacy and the family courts: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/getting-ready-for-court/the-courts-and-your-privacy

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, contact Alliance to arrange a free first conference.

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