Secretary of the Department of Communities and Justice and X & Ors
[2019] FamCA 521
•8 August 2019
FAMILY COURT OF AUSTRALIA
| SECRETARY OF THE DEPARTMENT OF COMMUNITIES AND JUSTICE & X AND ORS | [2019] FamCA 521 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for interim orders – Suppression and non-publication orders – Where orders are made pursuant to s 102PE of the Family Law Act 1975 (Cth) on the grounds that suppression and non-publication are necessary to protect the safety of the subject children – Open justice – Where the Court has incidental power implied from the statutes that govern it to do what is necessary to secure the administration of justice – Where the orders are necessary and not futile – Contravention of a suppression or non-publication order – Where suppression and non-disclosure orders were already in place and have been modified and ordered to continue until a set date whereby they will be reconsidered – Where the suppression and non-disclosure orders extend to orders and reasons of the Court. |
| Family Law Act 1975 (Cth) ss 43, 68B, 102P, 102PD, 102PE, 102PF, 102PH, 102PI, 102PK, 112AP, 114, 121 Federal Court of Australia Act 1976 (Cth) |
| AB(A Pseudonym)v CD(A Pseudonym) (2019) 364 ALR 202 AB (A Pseudonym) v The Queen (No 3) (2019) 97 NSWLR 106 Ashton v Pratt [2011] NSWSC 1092 Darren Brown (A Pseudonym) v The Queen (No 2) [2019] NSWCCA 69 DJL v Central Authority (2000) 201 CLR 226 D1 v P1 [2012] NSWCA 314 Hogan v Australian Crime Commission (2010) 240 CLR 651 Hogan v Hinch (2011) 243 CLR 506 Jackson v Stirling Industries Limited (1987) 12 FCR 267 Project Blue Sky v ABC (1998) 194 CLR 355 Rush v Nationwide News Pty Limited (No 6) [2018] FCA 1851 Russell v Russell (1976) 134 CLR 495 |
| APPLICANT: | Secretary of the Department of Communities and Justice |
| FIRST RESPONDENT: | X |
| SECOND RESPONDENT: | Y |
| FIRST INTERVENOR: | News Corp Australia (including Nationwide News Pty Ltd) |
| SECOND INTERVENOR: | Nine Network Australia Pty Ltd |
| THIRD INTERVENOR: | Fairfax Media Publications Pty Ltd |
| FOURTH INTERVENOR: | Special Broadcasting Service Corporation |
| FIFTH INTERVENOR: | Australian Broadcasting Corporation |
| FILE NUMBER: | By Court Order File Number is suppressed |
| DATE DELIVERED: | 8 August 2019 |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 10 July 2019 |
REPRESENTATION
By Court Order the solicitors names have been suppressed
Orders
Orders 1, 2 and 3 made on 3 July 2019 remain in force.
Orders 5, 6 and 7 made on 3 July 2019 are discharged.
IN LIEU THEREOF IT IS ORDERED:
Until midnight on 23 October 2019, pursuant to s 102PE of the Family Law Act1975 (Cth) (“the Act”) and the inherent jurisdiction of the Court, publication or disclosure of:
(a)Any information tending to reveal:
(i)the identity or location, including names (including any future alias used by that person) or images, of the following persons:
[Redacted]
OR
(ii)The identity or location of any witness in the proceedings, or
(iii)The identity or location of any person as a person providing professional services to the children and/or respondents at the time of publication, including but not limited to case workers, support workers, health and medical professionals, education professionals, and any other persons providing a professional service, or their staff, to the children and/or the respondents.
and
(b)Any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that identifies, or tends to identify, the persons named in order 3(a) above,
be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the persons named in order 3(a) above.
Until midnight on 23 October 2019, pursuant to s 102PE of the Act and the inherent jurisdiction of the Court, publication or disclosure of any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that either identifies, or tends to identify, [redacted], be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the children referred to in order 3(a) above.
Until midnight on 23 October 2019, pursuant to s 102PE of the Act and the inherent jurisdiction of the Court, publication or disclosure of information that relates to the proceedings and is:
(a)information that comprises evidence or information about evidence in the proceedings; or
(b)information obtained by the process of discovery in the proceedings; or
(c)information produced under a subpoena; or
(d)information lodged with or filed in the court in the proceedings, or
(e)orders made or reasons given by the Court.
be prohibited, on the ground that such suppression or non-publication is necessary to protect the safety of the children referred to in order 3(a) above.
This Court’s file number, the State or Territory of Australia in which these proceedings were initiated and any other fact or matter that might identify the children shall not be published in any way.
Any comments on the proposed published reasons be filed and served on or before 15 August 2019.
I direct the Marshall to consider whether an offence under s 102PK of the Act has been committed by the publication of the articles listed below (at [21]) or whether the publication involved a contempt of court and, if considered appropriate, take all necessary steps for the prosecution of the relevant entities or to commence contempt proceedings against them.
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 Secretary of the Department of Communities and Justice & X and Ors 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 |
FILE NUMBER: By Court Order File Number is suppressed
| Secretary of the Department of Communities and Justice |
Applicant
And
| X |
First Respondent
And
| Y |
Second Respondent
And
| News Corp Australia (including Nationwide News Pty Ltd) |
First Intervenor
And
| Nine Network Australia Pty Ltd |
Second Intervenor
And
| Fairfax Media Publications Pty Ltd |
Third Intervenor
And
| Special Broadcasting Service Corporation |
Fourth Intervenor
And
| Australian Broadcasting Corporation |
Fifth Intervenor
REASONS FOR JUDGMENT
Introduction
This matter is about whether a suppression order preventing dissemination of information tending to identify the location of the children the subject of these proceedings should be made.
[Redacted]
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[Redacted]
On 28 June 2019, I permitted the Secretary of the Department of Communities and Justice (“the Secretary”) orally to commence proceedings in relation to [redacted] (“the children”) seeking that the persons who had parental responsibility for them [redacted] accept the directions of the Secretary as to the children’s safety and welfare.
The parenting proceedings have been adjourned to 23 October 2019 for further directions.
I then made orders under s 102PE of the Family Law Act 1975 (Cth) (“the Act”) preventing publication and disclosure of the names and photographs of a number of named persons [redacted] and of information about them. I was satisfied, on the evidence before me, and having regard to the nature of the proceedings, that the orders were necessary to protect the safety of the children. Orders were also made to permit relevant media outlets to appear and be heard on whether the orders should be continued.
A number of media outlets now contend that the orders cannot and should not be continued and, if they are to be continued, should be made in a very much less restricted form.
Although the Secretary’s application was that a long-term suppression order should be made, at the close of submissions a final order was not sought, but rather a continuation of the present orders in a slightly different form until 23 October 2019. It was accepted that, at that time, the Secretary would carry the burden of persuading the Court that further orders were appropriate. By that time, the Secretary expects to be in a position properly to have assessed the children and identified with more precision any need for protection.
This means that the application is for interim and not final orders and that the Court should approach the matter accordingly. Thus, s 102PH of the Act applies, which states:
Interim orders
(1)If an application is made to the court for a suppression order or non‑publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.
(2)If an order is made as an interim order, the court must determine the application as a matter of urgency.
Notwithstanding that provision, I shall determine the merits of the application as best I can on the evidence but will be conscious that this is not a final hearing.
The following media entities, News Corp Australia Limited (including Nationwide News Pty Ltd), Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd and Special Broadcasting Service Corporation (“the media”), appeared through the one firm of lawyers and one counsel. The Australian Broadcasting Commission (“ABC”) was separately represented.
Publication of names and photographs on 3 July 2019
On 28 June 2019, I made a set of suppression and non-publication orders, which expired at midnight on 3 July 2019. Media entities were notified accordingly.
On 3 July 2019, the following media entities appeared as intervenors in the proceedings:
·News Corp Australia (including Nationwide News Pty Ltd);
·Nine Network Australia Pty Ltd;
·Fairfax Media Publications Pty Ltd;
·Special Broadcasting Service Corporation; and
·ABC.
On that day, the orders made on 28 June 2019, were extended and the matter was stood over to 10 July 2019 for reconsideration of the orders.
The evidence establishes that in the evening of 3 July 2019 the following media entities published the following articles on their respective websites:
[Redacted]
The first article included a photograph of some of the persons covered by the orders, their names, ages and general location. The fifth article identified the children and disclosed their ages and location. The other articles identified the children and their location.
These publications were in apparent contravention of the orders.
A contravention of a suppression or non-publication order is an offence. Such a contravention may also be a contempt of court, punishable under s 112AP of the Act. A person may therefore be punished for the offence or contempt but not both (ss 102PK(2), (3) and (5) of the Act).
Rule 21.03 of the Family Law Rules 2004 (“the Rules”) empowers the Court to direct the Marshall to make or continue an application under Chapter 21 of the Rules, which deals with enforcement, contravention and contempt.
In light of the above, I will refer the papers to the Marshall to consider any steps to institute proceedings for an offence or contempt, and if the Marshall considers it appropriate, to take those steps and commence any necessary proceedings.
The court’s power to make the order & the principle of open justice
The Secretary’s case is based primarily upon s 102PE of the Act but the Secretary also relies on the implied power of the Court to make orders necessary to give effect to its jurisdiction.
Section 102PE of the Act provides:
Power to make orders
(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.
(2)The court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
It is clear that the parenting application commenced by the Secretary engages the jurisdiction of the Court as required by s 102PE(1) of the Act.
The Court may only make a suppression or non-publication order if one or more of the grounds set out in s 102PF of the Act are established. In this case, the ground relied upon is that the order is necessary to protect the safety of any person (s 102 PF(1)(c) of the Act), which in this case is the children.
Importantly, in deciding whether to make such an order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 102PD of the Act).
The public interest in open justice is an important principle which must be given due weight. However, the content of that principle must be seen in the statutory context in which it appears. A provision in a statute must be construed so that it is consistent “with the language and purpose of all the provisions of the statute”. (Project Blue Sky v ABC (1998) 194 CLR 355 at [69]).
The Family Law Act 1975 (Cth), in which s 102PE appears, contains a significant restriction upon open justice, in that the publication or dissemination to the public of any account of any part of proceedings under the Act that identifies a party to the proceedings, a person related to or associated with a party, or is alleged to be in any other way concerned in the matter to which the proceedings relate or a witness, is prohibited and a person who does so commits an offence (s 121 of the Act). An account which includes names, including pseudonyms or aliases, address or locality of where a person works or lives, or attaches photographs is an account taken as identifying a person (s121(3) of the Act).
It is for this reason, that the publically available copies of decisions of the Family Court of Australia’s are issued under pseudonyms and are anonymised so that the persons subject to the protection of s 121 of the Act are not capable of being identified.
Thus, even though almost invariably courts hearing matters under the Act are open to the public, this is a significant restriction upon the ability of the media or the members of the public to report or disseminate information concerning those proceedings other than by reference to the anonymised version.
It is important to recognise that the key principle supporting s 121 of the Act is the protection of the privacy of the parties and, most significantly, their children, who, of course, are not active or informed parties to the litigation. This section does not prevent open justice in the sense that the decisions of the Court are available for the interest of and scrutiny by the public. It is for the same reason that, except in exceptional cases, courts hearing matters under the Act are open to the public. This is because “[t]he fact that courts of law are held openly and not in secret is an essential aspect of their character” (Russell v Russell (1976) 134 CLR 495 per Gibbs CJ at [8]).
Section 43(1)(c) of the Act requires the Court, in the exercise of its jurisdiction, to have regard to the need to protect the rights of children and promote their welfare. Again, this points to the need to protect children from the risk of physical harm and from unwelcome publicity.
However, it follows that the public interest in open justice described does not extend to identifying the parties or other persons relevantly related to or associated with them or with the proceedings. It is an objective to be taken into account, not the sole objective.
Consequently, decisions of other courts exercising jurisdiction where there is no similar restraint must be read in the light of that fundamental difference. For example, in Ashton v Pratt [2011] NSWSC 1092, Brereton J said:
11.It is an unfortunate consequence of open justice that the children of parties to, and other people involved in, proceedings (including, for example, in criminal proceedings) may be subject to disadvantage when their parents’ names are mentioned in court. This has never been a sufficient basis for intruding on the principle of open justice.
In the case of the Family Court of Australia such considerations are overtaken by s 121 of Act and indeed s 43(1)(c).
Section 121 of the Act is relevant in another way because there is an overlap between it and s 102PE of the Act where both operate to prevent or restrict publication or disclosure of information tending to reveal the identity of the protected persons. It follows that the need for an order under s 102PE of the Act may be ameliorated by the existing protections of s 121 of Act.
As is evident from its terms, s 102PE of the Act permits a Court to make a suppression order or non-publication order to prohibit or restrict publication or other disclosure of information.
The definition of “non-publication order” in s 102P of the Act makes it clear that such an order prohibits or restricts publication, but does not otherwise prohibit or restrict the disclosure of information (unlike a “suppression order” which is also defined by s 102P of the Act). “Publish” is also defined in the same section of the Act in an unremarkable manner.
Thus, a suppression order is much wider than a non-publication order.
A suppression order operates so as to prevent all persons, including the parties themselves, from disclosing the prohibited information. Thus, X, [redacted] would be barred from doing so whilst a suppression order is in place. The order is not for her benefit or convenience. It is the Secretary’s case that the order is necessary for the protection of the children, who are the subject of the proceedings. A significant aim of the proposed orders is to prevent their location being disseminated. Thus, the ability of others, including the parties, health professionals, teachers and others to disclose information that might tend to reveal the location is circumscribed. It is readily foreseeable that they may have their reasons for wishing to disclose matters within their knowledge, whether it be for notoriety, money or other perceived advantage, perhaps because, in their view, it would assist the children and a suppression order would prevent this.
In this matter, due to the public interest to which I have already referred, such considerations loom large.
Such considerations also impact on the form of any order to be made because it will be necessary for the children to be taken to health professionals and educators, to say the least, and obviously such people will need to know the basis on which they are being consulted and thus provided with the necessary history.
Any suppression order must, in this case, be framed so as to permit that to happen but also to prevent disclosure by those consulted and, particularly, their staff.
Section 102PE of the Act draws a distinction between “information tending to reveal the identity of or otherwise” of a person (s 102PE(1)(a)) and information relating to the proceedings themselves (s 102PE(1)(b)).
There is, therefore, a substantial overlap between s 102PE and s 121 but s 102PE of the Act goes well beyond that and permits an order to be made that prevents disclosure of information derived from any source, as opposed to being derived from the proceedings themselves.
This is important because, as I have said, the orders sought extend well beyond the media and extend to the parties themselves and to those who will be involved with the children. The aim of the orders is to prevent the dissemination of any material that would tend to identify the children or their location. Neither a non-publication order, nor reliance upon s 121 of the Act alone, would be effective in achieving this.
The other matter of significance is that whilst s 102PE(1)(b) of the Act is concerned with information relating to the proceedings, subsection (a) is not so limited. The nexus to the proceedings required by that subsection is that the information must relate to a party, witness or a person who is related to or otherwise associated with a party or a witness. This clearly includes the children the subject of the proceedings. It also includes people who are associated with the parties or the children and who are providing services to the parties or the children such as health or education professionals.
It follows that the terms of s 102PE(1)(a) of the Act permit what was described by counsel for the media and for the ABC as a “general” order and not merely one directed to a restriction on disclosure of information relating to the proceedings (so long as the nexus required by that subsection exists).
Reliance was placed upon a comment of Wigney J in Rush v Nationwide News Pty Limited (No 6) [2018] FCA 1851 (“Rush”) at [156], in relation to the equivalent section in the Federal Court of Australia Act 1976 (Cth), where his Honour said that “[t]he order should be crafted in such a way as to make it clear that it only prevents publication of that information in the context of these proceedings”.
The non-publication order in that case was sought by the applicant on the basis that the publication of the name of the proposed witness and allegations “would effectively destroy, or at least frustrate or undermine, the very purpose for which he brought these proceedings: the protection and vindication of his reputation” (Rush at [139]).
That was a very different case to the one before me. The non-publication order was based on quite different grounds. Essentially, in Rush, Wigney J considered that the publication of the witness’s name and allegations could damage the applicant’s reputation, yet leave him no means of recourse. Thus, the order did not prevent the witness from identifying herself and saying whatever she wished and the media was free to report it. Of course, in that event, if the publication was defamatory there was a means of recourse. It was in that circumstance that the non-publication order was limited to the conduct of the proceedings and the comments of his Honour are not of wider assistance.
That case does not provide support for the general preposition put by counsel for the media and for the ABC that s 102PE of the Act, including subsection (1)(a) must be construed in the same way and any order that may be made must be limited to preventing disclosure of matters relating to the proceedings themselves. For the above reasons, I do not accept the submission.
Inherent jurisdiction
A submission was made that the Court does not have inherent jurisdiction to make a suppression order. It was not entirely clear whether or not this was merely an issue of semantics. Clearly, as a statutory court, the Family Court of Australia does not have any inherent jurisdiction but does, however, have incidental power implied from the statutes that govern it, particularly, the Family Law Act 1975 (Cth), to do what is necessary to secure the administration of justice. Orders may be made closing a court in appropriate circumstances or for protecting the confidentiality of particular information or names of witnesses. For example, see Hogan v Hinch (2011) 243 CLR 506 (“Hogan”) per French CJ at [21]; Jackson v Stirling Industries Limited (1987) 12 FCR 267 at 272.
The question is, therefore, whether those incidental powers extend to make a suppression order against the public at large. French CJ, in Hogan, thought it did, saying:
26.In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice. Such an order may be made to and bind the parties, witnesses, counsel, solicitors and, if relevant, jurors and media representatives, or other persons present in court when the order is made, or to whom the order is specifically directed. It is not necessary for present purposes to reach a concluded view on the full extent of the power in relation to the general public.
The other members of the High Court declined to express an opinion on this point (at [88]).
The Act makes it plain that in cases concerning children, their best interests are paramount. It empowers the Court to make injunctions for their safety (s 68B of the Act). The power to grant injunctions under s 114(3) of the Act is extensive. Section 121 of the Act, as discussed, prevents publication of information tending to identify parties or children.
These considerations combined, persuade me that the Court has an incidental power to make orders of the kind sought by the Secretary. They are consistent with the following words of Kirby J in DJL v Central Authority (2000) 201 CLR 226 (“DJL”):
108.It is for this reason that it is essential to approach the central problem in this appeal by considering the Act in the context of the Constitution and the respective functions of this Court and the Family Court in relation to each other. We can ignore the realities which the Constitution stamps upon that relationship and call it clarity of thought if we will. But in my view, in deriving the implied powers of the Family Court, this Court will not overlook the functions and powers of the Family Court, its character as an Australian superior court of justice and its duties which require it to make orders affecting the status of persons and the rights of children and others who may not be parties. Nor should this Court content itself with the fiction that it can always intervene to correct errors when it knows full well that, practically, it is unable to do so. Indeed, this is not the function which either the Judiciary Act or the Constitution envisages for this Court in the discharge of its appellate duties. The express power to make orders and enter judgments therefore includes, in the case of the Full Court of the Family Court, the implied power to unmake and correct those orders and judgments as the necessity of justice in a truly exceptional case requires.
It remains to add that, contrary to the submissions of the media and the ABC, DJL is not authority for the proposition that the Family Court of Australia does not have implied or incidental powers. It simply rules that those powers did not extend to permitting the Full Court of the Family Court of Australia to reopen an appeal after the orders had been entered.
Necessity
Section 102PF of the Act sets out the grounds upon which an order can be made. Here, the Secretary relies on ss (1)(c), namely, that the order is necessary to protect the safety of any person.
The word “necessary” must be given its appropriate weight. It is insufficient that the proposed order be seen as “convenient, reasonable or sensible” (Hogan v Australian Crime Commission (2010) 240 CLR 651 per French CJ, Gummow, Hayne, Heydon & Kiefel JJ at [31]–[32]. This led Nettle J to observe that the relevant sections are not concerned with trivialities (AB(A Pseudonym)v CD(A Pseudonym) (2019) 364 ALR 202 (“AB v CD”) at [14]).
The question then arises as to what degree of proof this entails. In D1 v P1 [2012] NSWCA 314 at [49]–[55], Bathurst CJ (with whom McColl JA and McClellan CJ at CL agreed) posed, without deciding which was preferable, the following tests:
49.The first issue which arises when considering necessity is whether and to what extent an applicant for a suppression order under s 7 of the Act who relies on the ground specified in s 8(1)(c) is required to prove, on the balance of probabilities, that the order sought is necessary to protect the safety of any person, in the sense that absent the order being made it would be probable that the person in question would suffer harm. Put another way, is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?
50.On this construction of the subsection consideration must be given to the alternate ways in which the probability of harm could be prevented. In the present case if the evidence establishes that the more limited prohibition on publication ordered by the primary judge, whilst not eliminating the risk or possibility of serious injury, would have the effect of not rendering the risk that such injury would occur probable, a court would not be entitled to make a more extensive order in reliance on s 8(1)(c) of the Act.
51.The alternative construction of s 8(1)(c) is that all the section requires is for the Court to be satisfied on the balance or probabilities that the order sought is necessary to protect a person's safety. On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. Once again it would seem to me that alternative steps to the making of the suppression order sought would need to be considered in determining whether the order was in fact necessary.
Nettle J in AB v CD, preferred the latter construction saying:
15.The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
His Honour’s view has been applied in Darren Brown (A Pseudonym) v The Queen (No 2) [2019] NSWCCA 69 at [37] and AB (A Pseudonym) v The Queen (No 3) (2019) 97 NSWLR 106 at [56].
Aside from the weight of authority, the terms of the section itself, in my opinion, also support the second construction. The phrase used is “protect the safety of” any person which implies a wider approach rather than protection from imminent or probable threats of harm.
The risk to the safety of the children that was identified by the Secretary in his written submissions is as follows:
(a)[Redacted]
(b)[Redacted]
(c)[Redacted]
(d)No risk assessment has yet been undertaken by the Department in relation to the care of the children which cannot properly be done until such time as it is able to properly have discussions with the Respondents and/or the interim orders are made.
The evidence put before the Court consisted largely of media articles published online and Twitter comments together with comments that had been appended by members of the public.
As counsel for the media pointed out, not all these comments were negative. [redacted] Such persons are unlikely to pose a risk of harm to the children, at least not intentionally. The presence of such comments does not, however, negate whatever risk might be perceived from other comments. They are not, as it were, to be set off against each other.
I do not propose to recite all the evidence. Some examples shall suffice. The page references are to the tender bundles referred to in Ms P’s affidavit filed 1 July 2019:
[Redacted]
[Redacted]
[Redacted]
In assessing the need to protect the safety of a person, one must take account of the risks involved. A particular risk, such as those just discussed, may not be likely or imminent, nevertheless, a real risk of harm. That harm could well include violence or death. A risk of very severe harm which, however, may not be likely, but nonetheless, falls within the need for protection described in s 102PF(1)(c) of the Act.
The analogy of the seatbelt described by Nettle J in AB v CD at [15] aptly applies.
A more likely risk of harm, and one that is likely to be psychological rather than physical, is the intrusion of the public into the children’s lives. That intrusion could take many forms but could well include name-calling, baiting and verbal abuse. None of that would assist any children, let alone children now trying to adjust to a new life after particularly trying circumstances.
I am, however, of the view that publicity of itself is not helpful for these children. That, indeed, is one of the premises upon which s 121 of the Act is based – the need for privacy in the interests of the parties to proceedings and, in particular, their children. Of course, there is little public interest in most Family Court cases but, in those in which public interest is taken, the actual identity of the parties is not relevant.
[Redacted]
[Redacted]
[Redacted]
[Redacted]
Ultimately, however, the question is whether appropriate orders are necessary to protect the safety of the children. I am satisfied, for the reasons just given, that they are.
[Redacted]
[Redacted]
Further, X supports the application for the suppression orders.
Futility
Finally, it was submitted that the orders were otiose and futile or were not necessary, because of the wealth of material already available, especially online, and because the order would not prevent overseas publication or, indeed, publication on social media in Australia.
It can be accepted that there is international interest in these children and that an internet search readily identifies many articles referring to the children which give their names and ages, as well as containing photographs of them and of X.
The media has not identified any publicly available material which includes recent photographs which identify the children or Y [redacted], or which provides any information tending to identify their location.
There is, therefore, a significant benefit in the orders. To the extent that a person or entity beyond the apparent scope of these orders, such as an overseas media organisation, obtains information which leads to identify the location of the children, the proposed orders would prevent the republication of that material by the media in Australia.
The orders are not futile. I remain of the view that the proposed orders are necessary for the protection of the children.
The Secretary also relied upon a report of Professor H, a psychiatrist. Objections were taken to it on the grounds that it did not comply with various provisions of the Rules as to expert reports and because it was “general expert evidence”, which was submitted as not supportive of the proposition that the children were likely to have psychological, emotional and developmental consequences due to the trauma suffered by them.
I indicated that, if necessary, I would disperse with any of the Rules that would prevent admission of the report because of the speed with which the matter came on for hearing.
I accept that Professor H has not seen the children and that her opinion is, therefore, general in nature. However, Professor H’s opinion still has some relevance and therefore is admissible. Weight is another issue. Professor H’s report adds little to what would readily be inferred from the facts set out earlier. [redacted] An inference that they are likely to have suffered trauma leading to likely psychological, emotional and developmental consequences is easily drawn. Professor H also opined that:
Any management approach should focus on maintaining children’s safety and protection from public scrutiny and commentary and any intrusions into privacy. Issues such as these would contribute in a direct way to the children’s level of stress and anxiety and fears about being socially excluded…
(Report of Professor H, p.2) (As per original)
That is consistent with what may be inferred from the evidence as a whole.
Form of the order
Section 102PI(1) of the Act requires that a suppression or non-publication order operates for the period decided by the Court and specified in the order. This, in my opinion, precludes the making of an open-ended order such as, “until further order.” The orders will, therefore, expire at midnight on 23 October 2019.
The ABC proposed an order which would permit the state or territory where the children live to be published and that there be an order preventing the publication of information tending to identify the children as a person associated with the proceedings. I see little point in the first. The second, as discussed earlier, does not provide the necessary protection for the children.
The ABC also suggested an order makes it clear that publication of material published prior to 28 June 2019, including photographs, is not prohibited. Whilst little can be done to prevent access to material available online, for the reasons given earlier, the need to protect the safety of the children requires that this material not be re-published, particularly by mass media. [Redacted].
The Secretary accepted that order 5 proposed by the ABC should replace order 5(a)C made on 3 July 2019. That is a sensible course.
Conclusion
It follows that, I am satisfied that it is necessary to protect the safety of the children and that the existing orders, modified as discussed above, be continued at least up to and including 23 October 2019. On that date any continuation of the orders and their form may be reconsidered.
An order will be made extending the suppression order to these reasons, although I hope a redacted and anonymised version will be able to be published at large. The parties will be consulted about such a step.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 August 2019.
Associate:
Date: 8 August 2019
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