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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FamCA 125
Decision Date: 3 MARCH 2015

CaseChat Overview and Summary

In the matter of *Norton & Landell*, Tree J of the Family Court of Australia considered an application for suppression and non-publication orders concerning ex tempore reasons given in relation to final consent orders. The dispute arose in circumstances where the final consent orders permitted a father, who was a convicted paedophile, to spend time with his young adolescent child. The parties sought these orders to protect the child, the victim of the father's offences, and the mother from potential adverse consequences stemming from their identification through the published reasons.

The central legal issues before the Court were whether a suppression or non-publication order was necessary to achieve one of the objectives outlined in section 102PF(1) of the *Family Law Act 1975* (Cth), and if so, whether such an order was the least restrictive means of achieving that objective, particularly in light of the public interest in open justice. The Court also considered the potential for identification of the parties and the victim, given that they all resided in a relatively small city and that daily court lists might also provide identifying information.

Tree J reasoned that while the objectives in section 102PF(1) might be enlivened, the critical question was the necessity of a suppression order. The Court noted that victims' names are typically suppressed in criminal proceedings to prevent identification of the victim, and that the identification of the mother, child, or victim in this case would serve no benefit. However, the Court concluded that a more stringent anonymisation of the ex tempore reasons and the current judgment, rather than a full suppression or non-publication order, would safeguard the public interest in open justice while still protecting the individuals involved.

Consequently, Tree J declined to make an order under Part XIA of the *Family Law Act 1975*. Instead, the Court directed relevant court staff to prepare a more stringently anonymised version of both the ex tempore reasons and the current judgment. These anonymised reasons were further directed not to be made available until the expiration of the appeal period.

Orders