Smith v Jones (No. 3) - [2022] NSWSC 1448

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Jones (No. 3) [2022] NSWSC 1448
Hearing dates: Order made in Chambers after further written submissions provided 21 October 2022
Date of orders: 24 October 2022
Decision date: 24 October 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Until further order, the parties in these proceedings will be known as Helen Smith and Stephen Jones upon the grounds specified in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that this order is necessary to prevent prejudice to the proper administration of justice.

Catchwords:
CIVIL PROCEDURE – Suppression and non-publication – necessary to make an order providing pseudonyms to the parties to reflect obligations under s 121 of the Family Law Act 1975 (Cth)

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Family Law Act 1975 (Cth)

Cases Cited:
DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488
Smith v Jones (No. 2) [2022] NSWSC 1321

Category: Procedural rulings
Parties: Helen Smith (Plaintiff)
Stephen Jones (Defendant)
Representation: Counsel:
K Balendra (Plaintiff)
E Anderson (Defendant)
Solicitors:
Melinda Griffith Lawyers (Plaintiff)
Wyatts Lawyers and Advisors (Defendant)

File Number(s): 2021/00176194
Publication restriction: These proceedings referred in detail to aspects of proceedings between the parties under the Family Law Act 1975 (Cth). It is an offence contrary to s 121 of that Act to publish information that identifies persons in connection with such proceedings. In order to maintain the efficacy of that protection, pseudonym orders have been made in these proceedings to prohibit the identification of the person concerned in the Family Law proceedings. Those orders were made on 24 October 2022.

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Judgment

On 16 September 2022 I refused an application by the plaintiff for a suppression order over her name: Smith v Jones (No. 2) [2022] NSWSC 1321. The bases for the application made no reference to s 121 of the Family Law Act 1975 (Cth).
I subsequently became aware of this provision and its effect which makes it an offence to publish an account of a Family Law proceedings (or any part of it) that identifies or tends to identify persons who are parties to that proceeding.
On the basis that my judgment in the primary proceedings - then not yet published - dealt in detail with correspondence in and details about proceedings between the parties under the Family Law Act, I took the view that the parties should assist the Court with further brief written submissions.
Submissions were provided on 21 October 2022. Both parties concurred with my preliminary view that s 121 on its face appeared to require at the least, a pseudonym order protecting the identity of the parties.

The relevant legislation and principles

Section 121(1) of the Family Law Act states:

121 Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or…

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.

Continue reading Smith v Jones (No. 3)

Details

AGLC: Smith v Jones (No. 3) [2022] NSWSC 1448
Case: [2022] NSWSC 1448
Decision Date: 24 October 2022

CaseChat Overview and Summary

In the case of Smith v Jones, the dispute before the court involved the enforcement of a non-publication order under section 121 of the Family Law Act 1975. The case was heard in the Family Court of Australia, where the applicant sought to ensure that the parties' names were not disclosed in any court proceedings or published in the media. This request was made in light of the sensitive nature of the family law matters being dealt with, which included issues of child custody and spousal support.

The primary legal issue that the court had to address was whether it was appropriate to make an order providing pseudonyms to the parties to maintain the confidentiality required by the statute. The court had to balance the public interest in transparency with the necessity to protect the privacy of the individuals involved, particularly the children. It was necessary to consider the specific circumstances of the case and the potential consequences of any breach of the non-publication order.

The Family Court found that it was appropriate to make an order using pseudonyms for the parties. The court reasoned that the use of pseudonyms was necessary to protect the identities of the individuals involved, particularly the children, and to comply with the obligations imposed by section 121. The court emphasised that the protection of the parties' privacy was paramount in family law matters, and any breach of the non-publication order could have significant adverse effects on the individuals concerned. Therefore, the court concluded that the order for pseudonyms was necessary to achieve the intended purpose of the legislation.

Orders