NORTON & LANDELL (SUPPRESSION OR NON-PUBLICATION ORDERS)

[2015] FamCA 125

FAMILY COURT OF AUSTRALIA

NORTON & LANDELL
(SUPPRESSION OR NON-PUBLICATION ORDERS) [2015] FamCA 125

FAMILY LAW – PRACTICE AND PROCEDURE – Orders – Best Interests of the Child – Where final consent orders made – Where Court noted it was common for there to be no reasons given as to why consent orders were being made, however because the facts of this case raised serious issues potentially of some public interest and because there was the prospect that there would be future judicial involvement, more detailed ex tempore reasons were given.

FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and Non-Publication Order – Where Orders permitted, subject to strict conditions, a convicted paedophile father to spend time with the young adolescent child at an age similar to that of the victim at the time of the father’s offending – Where parties sought an order prohibiting the publication of the ex tempore reasons in order to protect the child, the victim of the father’s offences and the mother from any adverse consequences that may flow from the prospect of them being identified by the reader of the ex tempore reasons – Where Court noted a reader of a usual anonymised version of the ex tempore reasons may be provided with sufficient information to identify or speculate as to the identity of the mother, father, child or victim – Where the mother, father, child and the victim all live in one relatively small city – Where Court noted daily Court Lists may also provide an astute researcher with information such as the city where the matter was dealt and in particular the time frame – Where Court noted victims’ names are suppressed in reporting of criminal proceedings as well as the perpetrators’ names where that might lead to the identification of the victim – Where Court noted the identification of the mother, child or victim could be of no benefit – Where Court noted an order for suppression or non-publication may only be made if it is necessary to achieve one of the objectives in section 102PF(1) Family Law Act 1975 – Where Court noted even if one of more of the objectives is potentially enlivened, the question remains as to whether such order is ‘necessary’ to achieve the objective – Where Court is obliged to consider whether there is some other mechanism by which the public interest in open justice can be safeguarded, short of a suppression or non-publication order – Where Court of the view that by a more stringent anonymisation than would usually occur is such a course and would render a suppression order not ‘necessary’ – Where Court declined to make an order under Part XIA of the Family Law Act 1975 – Where Order made directing relevant court staff to prepare a more stringently anonymised version of both the ex tempore reasons and these reasons – Where Court further directed that neither set of reasons are not to be made available in their anonymised form prior to the expiration of the appeal period.

Family Law Act 1975 (Cth) s 34, 102P, 102PB, 102PD, 102PE, 102PF, 102PI, 121
Matrimonial Causes Act 1959 (Cth)

Bissett v Deputy State Coroner (2011) 83 NSWLR 144
Central Equity Ltd v Chua [1999] FCA 1067
Commissioner of Taxation v H (2010) 268 ALR 101
DJL v The Central Authority (2000) 201 CLR 226
Fairfax Digital Australia & New Zealand v Ibrahim (2012) 263 FLR 211
Hamzy v R [2013] NSWCCA 156
Hogan v Australian Crime Commission (2010) 240 CLR 651
Hogan v Hinch (2011) 243 CLR 506
Lew v Priester (No. 2) (2012) 35 VR 216
Matthews v R (No. 2)[2013] NSWCCA 194
Patel v O’Reilly (Non-Publication) [2010] FamCAFC 57
Reinhart v Welker (2011) NSWCA 403
SRD v Australian Securities Commission (1994) 52 FCR 187
Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd (No. 3) [2013] NSWSC 1069

APPLICANT: Ms Norton

RESPONDENT: Mr Landell

INDEPENDENT CHILDREN’S LAWYER: …

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: … 2015

JUDGMENT OF: Tree J

HEARING DATE: … 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Name of counsel suppressed

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Name of law firm suppressed

IT IS NOTED that publication of this judgment by this Court under the pseudonym Norton & Landell (Suppression or non-publication order) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order the File Number is suppressed

Ms Norton

Applicant

And

Mr Landell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. In early 2015 the trial of competing applications for final parenting orders in this matter was due to commence before me, however on that morning I was advised by the parties that the matter had resolved by consent.  The proposed consent orders were provided to me prior to the Court sitting, together with some helpful written submissions prepared by counsel for the Independent Children's Lawyer.  The Court then sat to hear the parties’ submissions in support of the making of the consent orders.  Ultimately, after some debate, a second set of re-fashioned proposed consent orders were provided, and the Court then heard the parties’ submissions in support of them.  Ultimately I was persuaded that the second set of orders, with some slight amendments, were in the best interests of the child the subject of these proceedings and made those orders by consent. 

2. Although different judicial officers may have differing practices, it is often common for there to be no reasons given as to why the consent orders are being made, other than a brief articulation that they are in the child’s best interests.  However because the facts of this case raise serious issues potentially of some public interest, and because there was the prospect under the orders that there would be future judicial involvement, it was appropriate that more detailed, albeit ex tempore, reasons were given.  They set out in a somewhat more detail than usual the reasons why I was persuaded that indeed the consent orders were in the best interests of the child.

3. The proposed orders raised some matters of potential public interest because they saw the child, who at the date of trial was a young adolescent, spending time with his father, who has been convicted of maintaining a sexual relationship, and indecently dealing, with a member of the child’s extended maternal family whilst that family member was a young adolescent.  In the course of my ex tempore reasons, I explained why, notwithstanding the fact that the father had been, upon his plea of guilty, convicted and sentenced to four years of imprisonment (of which he served approximately two) for those offences, I was nonetheless persuaded that the risk of harm which the father posed to his son was sufficiently mitigated by the conditions imposed upon the time he spent with the child.  Those conditions included an order that the father’s time with the child be supervised by his sister, or if unavailable, an agreed supervisor, and failing agreement, by a Contact Centre, and that the father’s supervised time with the child only occur at public venues.  Further, the orders provided for the child to undergo sessions with a psychologist designed to reinforce appropriate boundaries and to make him appropriately aware of risks.  In my ex tempore reasons, I explained why it was that I was persuaded that those sorts of conditions, along with others, sufficiently mitigated the risk which the father posed to the child.

4. In the course of delivering those reasons, I foreshadowed seeking submissions from the parties in due course as to whether there should be a suppression or non-publication order in relation to them.  Ultimately all parties urged me to make an order prohibiting the publication of my ex tempore reasons so as to protect not only the child the subject of these proceedings, but also the victim and the mother, from any adverse consequences that might flow from the prospect of being identified by a reader of them.  I will in due course set out the concerns which the parties, and indeed the Court, had as to why it is that the publication of the ex tempore reasons might pose some such risk to one or more of those persons.

5. Counsel helpfully referred me to two recent decisions of this Court which made orders under the still relatively new provisions of the Family Law Act 1975 (Cth) which empower the Court to make suppression and non-publication orders, however neither decision contained any discussion as to the reasons for the making of such orders. Because of the relatively complexity of the provisions, and the circumstances in which the issue had arisen, I determined to reserve my decision in relation to whether or not there should be a suppression or non-publication order. These are my reasons for that decision.

RELEVANT STATUTORY PROVISIONS AND AUTHORITIES

1. Part XIA of the Family Law Act contains provisions dealing with suppression and non-publication orders. Those provisions were inserted consequent upon the passage of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. As the title to that Bill might suggest, the amendments it effected were not restricted to the Family Law Act, but rather, relevantly to these reasons, applied provisions relating to suppression and non-publication orders to all Commonwealth Courts, including the High Court. Those provisions appear to have their origin in a model law developed by the relevant Standing Committee of Attorneys-General working group involving both the Commonwealth and the States. New South Wales appears to have been the first jurisdiction to enact legislation based upon the model law. There is therefore some extensive commonality between not only Part XIA of the Family Law Act, but also other statutory provisions dealing with other courts, both federal and state.

2. Before descending to a consideration of the relevant statutory provisions, and the matters upon which the Court would need to be satisfied in order to make such orders, it is convenient to note some preliminary matters.  The first is that unlike many other Courts subject to legislation derived from the model law, proceedings in courts exercising jurisdiction under the Family Law Act are protected by s 121 of that Act, which creates the crime of publication by any means of any account of any proceedings under the Act that identifies either a party to them, or a person who is related to or associated with a party or in any other way concerned in the matter or a witness in the proceedings.

3. As O’Ryan J noted in Patel & O’Riley (Non-publication) [2010] FamCAFC 57 at [6], the July 1980 report of the joint select committee on the Matrimonial Causes Act 1959 said:

   It appears from the debates when the Family Law Bill was being considered by Parliament that two particular factors influenced the decision to make the Family Court a closed court and to restrict publication of its proceedings.  The first was the view that no special public interest was served by exposing the private domestic disputes of individuals to the public gaze and the glare of the publicity in the media.  The second was the recognition, well attested, that certain sections of the press for years exploited divorce court proceedings.

4. At the time of those comments, s 121 of the Act effected a closed Court with no opportunity for publication at all; as a result of the joint committee’s recommendation, s 121 substantially in its present form was introduced in 1983, albeit amended further in 2000.

5. The second matter worthy of preliminary observation is that prior to the enactment of Part XIA of the Family Law Act, it seems clear that orders of the kind not permitted by it could already be made, sourced either in the broad powers of s 34(1) of the Act (see SRD v Australian Securities Commission (1994) 52 FCR 187 at 190; Commissioner of Taxation v H (2010) 268 ALR 101 at 105) or pursuant to an implied power incidental to the exercise of the jurisdiction of express powers conferred by statute (see DJL v The Central Authority (2000) 201 CLR 226 at 240-241 and Central Equity Ltd v Chua [1999] FCA 1067).

6. However by s 102PB, Part XIA is intended to limit the operation of, amongst other provisions, s 34 (see particularly the Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 at [18]) but not any implied power: see s 102PA and the Explanatory Memorandum at [17].

7. The third preliminary matter is that Part XIA draws a distinction between two different, but not necessarily mutually exclusive, orders. A “suppression order” is defined in s 102P as meaning “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. On the other hand a “non-publication order” is defined as meaning “an order that prohibits or restricts the publication of information” (but that does not otherwise prohibit or restrict the disclosure of information). Therefore it will be seen that the Part draws a distinction between disclosure on the one hand, and publication on the other, accepting that publication necessarily involves disclosure.

8. Turning then to the relative operative provisions of Part XIA, it is convenient to set out the full text of ss 102PD, 102PE and 102PF as follows:

   102PD In deciding whether to make a suppression order or non-publication order, the Court concerned must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

   102PE(1) A Court exercising jurisdiction in proceedings under this Act may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

   (a)information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or

   (b)information that relates to the proceedings and is:

   (i)information that comprises evidence or information about evidence; or

   (ii)information obtained by the process of discovery; or

   (iii)information produced under a subpoena; or

   (iv)information lodged with or filed in the Court.

   102PE(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

   102PF(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:

   (a)the order is necessary to prevent prejudice to the proper administration of justice;

   (b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State Territory in relation to national or international security;

   (c)the order is necessary to protect the safety of any person;

   (d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).

   102PF(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.  

9. It is also useful at this juncture to set out s 102PI:

   102PI(1) A suppression order or non-publication order operates for the period decided by the Court and specified in the order.

   102PI(2) In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

   102PI(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

10. From those provisions the following points may be distilled:

    ·Safeguarding the public interest in open justice is a primary objective required to be taken into account in considering making any order under the Part;

    ·The grounds upon which a Court may make an order are restricted only to those within the four sub-paragraphs of s 102PF(1), and in all cases the order must be “necessary” to achieve the particular purpose.

    ·The suppression or non-publication order itself must specify the ground or grounds on which it is made.

11. It can therefore be seen that the drafting of Part XIA is deliberately intended to create a regime whereby any suppression or non-publication orders, in both ambit and duration, impact upon open justice only to the minimum amount necessary.

12. There is a developing body of authority dealing with either these provisions, or their like equivalents under other legislation based on the model law.  From those cases the following points may be distilled:

    ·Any suppression order powers conferred by statute should be construed so as to minimise their intrusion on the open justice principle: see Hogan v Hinch (2011) 243 CLR 506 at [27] per French CJ and the explicit reference to that case in the Explanatory Memorandum to the 2011 Bill at [25].

    ·The provisions extend not only to evidence, submissions or other material before the court at the hearing, but also to the judgment resulting from the trial or hearing: see Matthews v R (No 2) [2013] NSWCCA 194;

    ·There are recognised exceptions to the principle of open justice, including where publicity would destroy the subject matter of the proceedings or substantially depreciate its value: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [42] and Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd (No3) [2013] NSWSC 1069;

    ·“Necessary” has a high threshold and means something more than convenient, reasonable or sensible: see Hogan v Australian Crime Commission (supra)at 664,667 and Rinehart v Welker (2011) NSWCA 403 at [27]-[31]. It is not a balancing exercise: Hogan v Australian Crime Commission (supra) 664 at [31];

    ·The term “necessary” is not to be given a restricted meaning.  It has to be interpreted and applied in context, including adverting to potentially irrational and illogical responses to information by members of the community: Hamzy v R [2013] NSWCCA 156 at [60];

    ·Personal safety of a witness or associated party may be sufficient to supress parts of a judgment, including those parts of the judgment dealing with the application for a suppression order: see Hamzy v R (ibid);

    ·In the event that there is even some doubt that a party’s or witnesses’ safety may be compromised, the party for whose protection the suppression order is to be made is to be given the benefit of that doubt: Hamzy v R (ibid)  at [60] Matthews v R (No2) (supra) at [5] and Fairfax Digital Australia & New Zealand v Ibrahim (2012) 263 FLR 211;

    ·The fact that the contemplated outcome may never occur is not fatal to a finding that an order is necessary: see Bissett v Deputy State Coroner (2011) 83 NSWLR 144 at [23];

    ·Distress or embarrassment, even to minors, likely to arise from publication or publicity is not a sufficient reason to make a non-publication order: see Lew v Priester (No 2) (2012) 35 VR 216.

13. The final matter to which I should advert is the well-recognised practice of the Family Court of Australia in making its judgments readily available on the internet, albeit in an anonymised form. The policy reasons behind that do not need to be discussed in these reasons, however plainly there is a public interest in the work of the Court being readily available for scrutiny by interested members of the public, including the media, albeit in a way which does not offend s 121 of the Family Law Act. So long as s 121 is not breached, it is difficult to identify any reason why the work of the Court should not be so open to public scrutiny, or any benefit to either the public, the Court or litigants, in its processes and outcomes not being so available. Moreover, it is plain that in the appropriate circumstances, a judge may take administrative steps to anonymise reasons further than might otherwise ordinarily occur, or in the case of already published reasons, which has already occurred: see Patel & O’Riley (Non-publication) (supra) at [14] per O’Ryan J. Logically, that administrative recourse may inform the answer to the question of whether a suppression or non-publication is “necessary” to achieve either of the four purposes specified in s 102PF(1).

THE PROBLEM

1. The mother, the father, the child and the victim all live in the one relatively small city.  Presumably as a service to litigants, each day the Family Court and other organisations make available on the internet a daily Court List identifying each sitting judicial officer and, by reference to the parties’ surnames and initials, all of the matters that are in their list for the day.  Thus the city where a judge dealt with a particular matter, in a particular time frame, could be readily ascertained by an astute researcher.  Whilst I understand the daily lists are taken down from the Court’s website each day, so that retrospective research of Court lists would be difficult, I am by no means persuaded that it would be impossible for a keen and electronically savvy researcher to obtain access to retrospective listings.

2. The reporting of criminal proceedings in the media is common place, and the conviction and sentencing of paedophiles is, quite rightly, a matter of considerable public interest.  However there are disadvantages in that reporting which have been recognised by most, if not all, Australian jurisdictions, which require the suppression of not only the victim’s name, but also the perpetrator’s name, in circumstances where that might lead to the identification of the victim.

3. A reader of the usual anonymised version of my ex tempore reasons would be able to, from the face of them, identify:

   ·The city in which the case was heard and the decision delivered;

   ·The days of hearing and the date of the delivery of the judgment;

   ·The names, or at least firm names, of any lawyers involved;

4. Whilst it is not possible in advance to predict precisely how anonymisation might affect the content of my ex tempore reasons, in order to properly understand the reasons one would expect that they would be published on the internet in a form which would enable a reader to identify that:

   ·The victim was a close family relative of the mother, living with both the mother and father during, at least, part of the period of offending;

   ·That the offence involved a breach of trust in relation to a child under the age of 16, of the same sex as the child the subject of the proceedings, and of approximately the same age as that child;

   ·That the child the subject of these proceedings is a young adolescent;

   ·That up until the time of the orders, the child was seeing his father at a Contact Centre;

   ·That the father has been incarcerated in relation to child sex abuse offences for two years in recent times, and that his head sentence was four years jail;

   ·That the father pleaded guilty to the offences, and was sentenced, in the city in which the parties, the victim and the child all reside.

5. Whilst I accept that the chances of a member of the public stumbling across the electronic version of my reasons online is slim, there is some prospect of some media reporting of the reasons, given the potential public interest in orders which permit – albeit subject to strict conditions – a convicted paedophile father to spend time with his son in public locations.  In the event of any such publicity, if it were to include information of the kind discussed in paragraphs 21 and 22 above, it could readily lead to a considerable portion of the public of the city in which the parties live being informed of that material, which might include people who, from that material alone would be able to, if not positively identify the persons involved, then at least afford them an informed basis upon which to speculate as to their identity.  For instance, the former neighbours of the parties when they were cohabitating may be able to recognise certain features of the case as conforming with their knowledge of the parties’ lives at various times.  Likewise friends or relatives of the parties may be able to join the dots and make some informed speculation.  Less likely, but not altogether impossible, former school friends of the victim, or current school friends of the child, may also join the dots. 

6. In a large capital city that may not pose such a problem; in the city the subject of these proceedings the prospect is far more pronounced.  The identification of the father as having been the perpetrator of the crime upon the victim would almost inevitably enable a former neighbour, friend or relative to identify the child, the victim and the mother.  Likewise if a member of the public were able to identify the mother or the victim.  Identification of the child, the mother or the victim can be of absolutely no benefit to them.  In the case of the child, it might subject him to bullying or victimisation at school, if his peers sought to embarrass or humiliate him based upon his father’s crimes.  In the case of the mother, whilst one would hope that a properly informed member of the community would not in any way, shape or form, blame her for the father’s crime against the victim, even knowing that others in the community know of the events and her association with them, is unlikely to help the mother’s mental or emotional functioning.  The potential adverse impacts upon the victim are so obvious as to not need elucidation.

7. Therefore, shortly stated, the problem is this: The public necessarily has a legitimate interest in knowing that, even subject to strict conditions, the court has permitted a convicted paedophile father to spend time with his son, at an age similar to that of the victim at the time of the father’s offending; on the other hand, that same public, if possessed of sufficient information, might be able to identify those involved or associated with that crime, with numerous potential adverse consequences.

APPLICATION OF PART XIA TO THE PROBLEM

1. Undoubtedly the complete suppression of my ex tempore reasons for judgment would solve the problem.  However such an order may only be made if it is necessary to achieve one of the objectives in s 102PF(1).

2. As to the ground in 102PF(1)(a), it is difficult to see how a suppression or non-publication order would be necessary to prevent prejudice to the proper administration of justice. Plainly the ground of s 102PF(1)(b) has no application. Arguably, public knowledge of the identity of either the father, the mother, the child or the victim might imperil their emotional, and perhaps in the case of the father, physical, safety as set out in the ground in s 102PF(1)(c). As to s 102PF(1)(d), in the case of the mother and the victim, public knowledge of their involvement in, or association with, the crime, would likely cause them undue distress or embarrassment. In that context I should say that obviously both the victim and the mother were potential witnesses in the criminal proceedings, but that proceeding concluded without them having physically given evidence in court, and so they remained prospective, rather than actual, witnesses. Whether such persons would be caught under s 102PF(1)(d) is a moot point and the answer by no means clear.

3. However even if one or more of the objectives described in the four sub-paragraphs of s 102PF(1) is potentially enlivened, the difficult question in this case is whether a suppression or non-publication order is “necessary” to achieve that objective. Accepting that “necessary” means something more than convenient, reasonable or sensible, and further that the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice, means that the court is obliged to consider whether there is some other mechanism by which the public interest in open justice can be safeguarded, short of a suppression or non-publication order.

4. In my view there is such a course, and that is by a more stringent anonymisation of the judgment as made available on the internet than would usually occur.  Particularly if the judgment as ultimately uploaded is stripped of each and every piece of information which could be used to identify any of the four persons discussed above, then that administrative process – which can be done without order – means that the suppression order is therefore not “necessary”.  In effect, albeit for different reasons, this is the same result as prevailed in Patel & O’Riley (Non-publication) (supra).

5. Specifically I propose to direct the relevant court staff to prepare an anonymised version of, not only my ex tempore reasons, but also these reasons, so as to wholly suppress any reference whatsoever to:

   ·The city in question, or material from which that city could be inferred;

   ·Any circumstances of the father’s offending which could lead to the identification of him or the victim;

   ·Any reference to the date of the hearing or judgments in the matter or information from which those could be inferred;

   ·The identity of any legal practitioners or solicitors’ firm involved in the proceedings.

6. I appreciate that there is a prospect that so anonymised, the judgment may be devoid of such detail as would normally make it readable in the ordinary way, but the bare bones of the reasons for the decision will nonetheless be available for public scrutiny, and in that sense the public interest in open justice will be safeguarded.

CONCLUSION

1. For these reasons I decline to make an order under Part XIA, however will make the appropriate administrative directions as discussed in this judgment.  I will further direct that neither set of reasons not be made available even in their anonymised form prior to the expiration of the appeal period from the date of these reasons, so as not to thwart any appeal that either party may seek to consider or bring arising from them.               

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on … 2015

Associate: 

Date:  … 2015