Re: Imogen (No 5)
[2020] FamCA 760
•10 September 2020
FAMILY COURT OF AUSTRALIA
| RE: IMOGEN (NO. 5) | [2020] FamCA 760 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Whether the final hearing should be in a closed court – Where the court shall be open – Where the hearing will take place on Microsoft Teams due to COVID-19 – Where because of concerns about the ability to appropriately warn members of the public about restrictions in relation to Imogen’s anonymity and concerns in relation to the wider electronic dissemination of the proceedings without anonymity, members of the public will not be given access to the Microsoft Teams link – Where members of the public will be able to view the hearing conducted on the electronic platform from the courtroom. |
| Family Law Act 1975 (Cth) Pt XIA, ss 43, 97, 121 |
| Commissioner of Australia Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Russell v Russell (1976) 134 CLR 495; [1976] HCA 23 Secretary of the Department of Communities and Justice & X and Ors (2019) 60 Fam LR 46; [2019] FamCA 521 |
| APPLICANT: | The father |
| RESPONDENT: | The mother |
| FIRST INTERVENOR: | Australian Human Rights Commission |
| SECOND INTERVENOR: | The Attorney-General of the Commonwealth |
| INDEPENDENT CHILDREN’S LAWYER: |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 10 September 2020 |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | By way of written submissions |
REPRESENTATION
By Court Order the solicitor’s names have been suppressed
Orders and notations made 31 July 2020
IT IS NOTED THAT:
The hearing of this matter is scheduled for three days commencing Monday 3 August 2020 and will take place from my normal courtroom but on a Microsoft Teams platform.
The applicant father and his lawyers; the respondent mother and her lawyers; the Independent Children’s Lawyer (ICL) and lawyers appearing for the Australian Human Rights Commission and the Attorney-General for the Commonwealth will all be appearing remotely on a Microsoft Teams platform.
An issue has arisen as to whether or not the court should be closed pursuant to the provisions of s 97(2) Family Law Act 1975 (Cth) (“the Act”). During the mention before me on 21 July 2020 both the applicant father and the respondent mother indicated that they would seek an order that the court be closed during the hearing.
On 21 July 2020 I made the following Order:
15.By noon on 29 July 2020, the parties are to provide me with written submissions as to whether or not I should close the court.
Recently, the solicitor for the father has advised that her instructions have changed and her client no longer sought to be heard on the question as to whether or not the court should be closed. Similarly the mother has indicated that having read the submissions made by the ICL, she does not seek to be heard on whether or not the court is closed.
The ICL indicated that Imogen has consistently expressed the preference that her personal details not be shared further than is necessary and has expressed the view that the court should be closed. The ICL however correctly notes that the considerations of the court extend beyond the views of the child. The ICL’s position is:
a.The physical court be open and the public and media be allowed to attend court in person to observe the hearing
b.Members of the public or the media not attend the hearing on the Microsoft Teams platform
c.The current non-publication orders of 28 February 2020 and 4 June 2020 be strengthened in a particular way
The Australian Human Rights Commission similarly submits that the court should be open but that members of the public and the media not be able to attend using the Microsoft Teams platform.
IT IS ORDERED THAT:
The hearing of this matter, commencing at 10am on 3 August 2020 and listed for three days, shall be in open court.
The participants on the Microsoft Teams platform to the hearing be limited to the parties and their lawyers.
By way of variation of non-publication Orders, Order 11 made 28 February 2020 and Order 1 made 4 June 2020 be vacated and the following Order be made instead:
The name of the child, Imogen born … 2004, her family members and their occupations, her hospital, the Independent Children’s Lawyer, her medical practitioners, any counsellor or counselling service the child attends, her school, the court’s file number, the State or Territory of Australia in which these proceedings were initiated, the name of Imogen’s parent’s lawyers and any other fact or matter that may identify Imogen shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number and lawyers’ names and details, as well as the parties real names) shall be released by the court to non-parties without further contrary order of a judge, it being noted that each party shall be provided with copies of orders and any reasons for judgment with relevant details including the file number and lawyers’ names.
The reasons for making these Orders are reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Imogen (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA |
| The father |
Applicant
And
| The mother |
Respondent
And
| Australian Human Rights Commission |
First Intervenor
And
| Attorney-General of the Commonwealth |
Second Intervenor
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 31 July 2020 I made notations and orders and reserved my reasons which I now provide. I have regard to those matters referred to in the notations. The positions of the parties, the Independent Children’s Lawyer (“ICL”) and the Australian Human Rights Commission (“AHRC”) as to whether the Court should or should not be closed are set out in the notations.
It was my intention that any members of the public and media attending the Court in person would be able to see on video conferencing equipment in the courtroom what was happening on the Microsoft Teams platform but they would not otherwise be able to attend the hearing on the Microsoft Teams platform.
I also intended that any person attending the hearing in person would be given a copy of the non-publication Order made on 31 July 2020 and be informed of the significant penalties which may flow from a breach of that Order, including in the alternative, as a result of being charged with contempt of court. The aim of those Orders was to protect the identity of the adolescent who is the subject of these proceedings. The nature of the confidentiality order that has been made in this case is typical of orders routinely made in cases where an adolescent has applied to the court for authorisation of medical treatment for gender dysphoria, which cases were a regular feature in this jurisdiction prior to Re Kelvin (2017) FLC 93-809. They are appropriate given the personal and sensitive nature of the issues that are dealt with in proceedings such as these.
In some cases, the court has subsequently made orders confirming that an adolescent the subject of the proceedings have liberty to identify themselves as the person who is the subject of the proceedings[1]. Imogen has in this case sought that her privacy be protected and in fact wishes that the Court be closed.
[1] For example, Re Jamie [2015] FamCA 455 at 46; Re Kelvin (No. 2) [2017] FamCA 1000 [9]-[10]
Open justice and the circumstances when a court may be closed
Section 97 Family Law Act 1975 (Cth) (“the Act”), relevantly provides:
1Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.
…
2.In any proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, the court may, of its own motion or on the application of a party to the proceedings, make one or more of the following orders…
…
(c) an order that only the parties to the proceedings, their legal representatives and such other persons (if any) as are specified by the court may be present in court during the proceedings or during a specified part of the proceedings.
The Act does not set out criteria to aid the court’s consideration of whether to close the court in any particular case.
It is a “fundamental rule of common law” that the administration of justice take place in an open court[2]. That is the default position under s 97 of the Act. The rationale for the open court principle is that “court proceedings shall be subjected to public and professional scrutiny and courts will not act contrary to the principle save in exceptional circumstances”[3].
[2] John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSW LR 465 at [476]-[477] McHugh JA, Glass JA agreeing; see also Hogan v Hinch (2011) 243 CLR 506 at [20]-[21] and [27] (French CJ)
[3]Commissioner of Australia Federal Police v Zhao (2015) 255 CLR 46 at [44]
In Russell v Russell (1976) 134 CLR 495, Gibbs J (as he then was), when discussing whether an earlier and diametrically opposite version of s 97 required State courts vested with family law jurisdiction to conduct proceedings in a closed court, said at 520:
…proceedings shall be conducted “publicly and in open view”. This rule has the virtue that the proceedings of every court are fully exposed to the public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure”…. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interest of privacy or delegacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court…
(Footnotes omitted)
Prior to Re Kelvin the majority of gender dysphoria cases were heard in open court. There were however a number of instances where a judge closed the court usually on the basis of privacy or delegacy[4].
[4] See for example Re Alex: hormonal treatment for gender identity dysphoria (2004) FLC 93-175 at [1]; Re Alex (2009) 42 Fam LR 645 at 25; Re Jamie [2015] FamCA 455 at [45]
Determination
In the context of making non-publication and suppression orders pursuant to Pt XIA, Aldridge J in Secretary of the Department of Communities and Justice & X and Ors (2019) 60 Fam LR 46 included useful observations about the restrictions upon principles of open justice arising elsewhere within the Act. As Aldridge J has pointed out, the principles of unfetted open justice are constrained by particular provisions of the Act, specifically s 121 which creates some restrictions on the publication of proceedings under the Act and the requirements in s 43, which requires the court to have regard to the need to protect the rights of children and promote their welfare when exercising jurisdiction under the Act.
This case is about Imogen. This decision needs to focus upon the likely impact upon her. These proceedings deal directly with her identity and traverse matters which are very personal to her. These matters go to the questions of her “private life”. The evidence in this case go to matters which are fundamental to Imogen’s own identity in a way that is even more personal and private than in most other family law proceedings, including parenting disputes. Although her parents and the experts disagree on the cause of Imogen’s present distress and social isolation, there is no disagreement that it exists. I have no doubt that the feelings that she has are heightened by these proceedings. As indicated, Imogen has expressed the view that the Court be closed and it is reasonable to assume that she may feel uncomfortable, embarrassed and even distressed by a discussion in an open courtroom of such intimate matters which relate to her.
The Court had been informed about Imogen’s views by the ICL. I also had written evidence given by the professionals by whom she is treated, from her mother’s adversarial expert and from her parents themselves.
The relevant question is whether or not the privacy issues that have been raised can be adequately dealt with in a way that is still consistent with the principles of open justice.
On balance, the ICL concedes there is a public interest in the proceedings being held in open court, subject to the non-publication order and access to the Microsoft Teams platform being restricted.
During the COVID-19 pandemic, Federal Courts exercising jurisdiction under the Family Law Act have been using the Microsoft Teams platform to create some level of continuity of delivery of service to the Australian public. This defended hearing shall take place from my courtroom but on the Microsoft Teams platform. Public access via Microsoft Teams, in a case of this nature, presents some additional logistical challenges.
The flow of the hearing will become unduly cumbersome if the identity of the parties, the treating medical practitioners, counsellors and counselling services and schools need to be anonymised during the giving of evidence. In fact, over the scheduled three day hearing, it is impossible to imagine that that would be able to be achieved no matter how much people were warned to use code when they were giving evidence. If people other than the parties and their representatives are streaming the hearing, this increases the risk that Imogen and her family will be identified.
A non-publication order will be made which is aimed at protecting Imogen’s identity and that order be drawn to the attention of those in the courtroom.
The ability of the Court to warn any member of the public or media who attend the hearing, of the non-publication order that has been made, will be difficult and disruptive if those persons attend the hearing using the Microsoft Teams platform. It will be far easier for those warnings to be given if access is given to people to attend the courtroom rather than on the online platform.
If people other than the parties and the legal representatives are able to observe the proceedings electronically, outside the courtroom. I have not been able to be assured that there is not the potential for the proceedings to reach a wider audience by agency of some who may not be aware of the non-publication order. This is particularly the case because people may be able to stream the proceedings on mobile devices and the court cannot know who would be in a position to overhear the proceedings in those circumstances.
These risks are amplified by the ability to disseminate information on electronic platforms. The ICL has provided a copy of an article appearing in The Australian on 29 June 2020 which specifically reports upon this case. The ICL does not for a moment suggest that the media is not entitled to report on the proceedings. The ICL however provide evidence that the journalist involved has retweeted a post made by an expert witness in these proceedings and that expert witness has retweeted some articles that have been published in The Australian relating to gender dysphoria. The ICL relies upon these matters to demonstrate that there are risks in members of the public and the media being allowed to observe the proceedings on the Microsoft Teams platform, in the circumstances of this case.
I find that a reasonable balance can be struck between giving proper weight to Imogen’s views and the principles of open justice. It would be appropriate for the hearing of these proceedings to take place in open court, subject to the restrictions discussed. There are of course limitations of a number of persons that can be in a courtroom under the court’s COVID-19 restrictions. However, the number of people who are able to attend will not be restricted given it is my intention for a contingency plan to be in place for an overflow courtroom. Members of the public and media shall be able to attend in person so that Imogen and her family can know how many people are listening to the case and the court can be satisfied that there is no unauthorised recording or broadcasting taking place.
Accordingly, participants and observers on the Microsoft Teams platform will be limited to the parties and their lawyers and not be open to members of the public or the media.
These are the reasons for the notations and orders made 31 July 2020.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 10 September 2020.
Associate:
Date: 10 September 2020
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