The confidentiality of parties involved in Family Law proceedings is protected by section 121 of the Family Law Act 1975 (Cth). That section provides that it is an offence to publish details of a case that identifies a party or witness involved in the proceedings. There is, however, an exception to this rule where the Court has made a Publication Order approving the publication.
Publication Orders issued by the Family Court and Federal Circuit Court allow media outlets to publicise certain details of a case. Publication Orders are generally only made at the request of a parent who is seeking public assistance to locate their child. The Order will usually enable the media outlet to publish photographs of the missing child and the person they are believed to be with, along with some other limited details.
For example, in a 2014 case, the father filed an Application seeking a Publication Order. A Recovery Order had already issued, however, the children had not yet been recovered. The father had become aware that the mother had attempted to remove the children from Australia, despite the fact that he had not signed any application for a passport for the children and had not authorised their departure from Australia. The Court granted permission for a notice or report of the proceedings to be published or broadcasted in any newspaper or periodical publication and by other electronic means, including a website. The notice or report was to be limited to the following details:
- That a Recovery Order was issued;
- The full name of the Mother;
- The full names and dates of birth of the parties’ two children;
- A description and photograph of the children;
- Any other information likely to assist in the children being located; and
- A request that any information as to the whereabouts of the children be given to the Australian Federal Police or Crime Stoppers.
Publication Orders may also be issued where it is in the public interest to do so. For example, in a recent decision of the Family Court of Western Australia, two media organisations applied for a Publication Order in respect to prior parenting proceedings. Those parenting proceedings related to three children, two of whom were murdered.
The media organisations sought to publish a letter written by the surviving child, speaking about the Family Court proceedings which continued for a period of 4 years. They also applied for permission to publish an account of the proceedings before the Coroner in relation to the inquest into the deaths of the two children and their mother.
The Western Australian equivalent of section 121 is section 243 of the Family Court Act 1997 (WA). As the Judge explained:
“Section 243 is an exception to the principle of open justice…The underlying policy is to ensure that people do not feel discouraged from coming to the court for fear of having their private life made public. The law is also designed to ensure that children are not held up to ridicule, curiosity or notoriety”.
However, as Counsel for the Applicant pointed out, in this case there was a clear public interest in the full story being known. For that reason, the Court granted the media organisations permission to publish an account of the proceedings before the Coroner, as well as an account of the Judgment relating to the Application for the Publication Order.
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