Confidentiality in Family Law Proceedings: Changes Ahead?

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By Brooke Nickerson, Lawyer, Alexandra Moles, Partner, Rachael Murray, Partner

Recently, the draft Family Law Amendment Bill 2023 (Bill) was released proposing a number of significant changes to the Family Law Act 1975 (Cth) (Act). One of the sections being reviewed is section 121 of the Act.

Broadly speaking, section 121 of the Act makes it an offence to publish: (1) an account of any proceedings that identifies a party to the proceedings, a person associated with a party to the proceedings or a witness; or (2) a list of proceedings to the public. A number of exceptions apply, including regarding the regulation of members of the legal profession, and the publication of law reports.

The overarching purpose of section 121 is to protect the privacy of those involved in family law proceedings from the media.

Pros & Cons of Confidentiality

The proposed changes, if adopted, make section 121 easier to read and understand, however, they do not propose any substantial change to the principle of confidentiality of family proceedings from the media.

The Act seeks to strike a balance between the need to protect the privacy of families and the principle of open justice (from which comes a public expectation of accountability and transparency).[1]

The need to protect the privacy of families is addressed by section 121 and the proposed amendments. The advantage of this approach is that it recognises the potential impacts on children and families of inappropriate reporting.[2] The potential impact includes “a considerable risk of misinformation, defamation, trial by social media, and present and future trauma for children subject to proceedings.”[3] These are significant considerations.

A disadvantage is that section 121 could be seen as limiting the principle of open justice.[4] The Australian Law Report Commission notes that: “There is a perception that the provision prevents scrutiny of family law decision making, reporting on the deficiencies of the family law system, and victims of family violence from speaking out about their experiences.”[5]

The principle of open justice is currently promoted by the general requirement that family law proceedings be conducted in open court (ie. any member of the public can attend) and by the regular publishing of reasons for decisions in anonymised form.[6]

However, some people have submitted that this is insufficient and there should be an obligation placed on the Court to publish all reasons for decisions in order to enhance public confidence in the family law system.[7]

The proposed amendments do not address these concerns.

Why is it being reviewed?

It has been identified that section 121 is currently drafted in a way that many people may find difficult to read and understand.[8] This creates uncertainty.

For example:

  • The length of the section has been criticised. The section currently has 11 sub-sections, and many of those sub-sections incorporate lengthy lists or cross-references to other sub-sections.[9]
  • The section contains two similarly worded but distinct offences.[10]
  • The language reflects more traditional forms of publication, including newspaper and radio.[11]
  • There has been confusion about the scope of the section. For example, whether it prohibits private communications, communications with professional regulators as part of a complaint, and communications with government agencies and family law service providers.[12]

What are the proposed changes?

The draft Bill proposes that section 121 be redrafted to modernise the language, make it easier to read and clarify its scope.

The key changes include:

  • There is an outline at the beginning of the relevant Part explaining the two offences in simple terms.
  • It has been separated into a number of shorter sections (rather than one long section with a number of sub-sections). It is hoped that this will make it easier to read.
  • The phrase “publishes or otherwise disseminates to the public” has been replaced with “communicates to the public”, and the word “communicates” has been defined to include “by means of the internet” with social media as an example. This is intended to modernise the section, and to make it clear that it extends beyond traditional forms of publication.
  • The redraft makes it clear that the Part does include not private communication with a family member or friend or providing an account of proceedings to any professional regulator.

Making Submissions

The proposed amendments to section 121 touch on an important debate about the intersection of privacy for families in distress and the importance of upholding the principles of open justice.

You can have your say on the draft Bill, and make a submission. Submissions close on 27 February 2023. Click here to read more.

[1] Above n 1, 435.

[2] Above n 1, 437.

[3] Community and Public Sector Union, Submission, 136.

[4] Above n 1, 435.

[5] Above n 1, 436.

[6] Above n 1, 435.

[7] See Law Council of Australia, Review of the Family Law System: Discussion Paper, 16 November 2018, 81.

[8] Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System, March 2019, 438.

[9] Above n 1, 438-439.

[10] Ibid.

[11] Above n 1, 439.

[12] Ibid.

For further information, please do not hesitate to contact us.

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