Wither and Wither & Anor

[2024] FCWA 244

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WITHER and WITHER & ANOR [2024] FCWA 244

CORAM: TYSON J

HEARD: [REDACTED]

DELIVERED : Ex tempore

FILE NO/S: 4906 of 2019

BETWEEN: MS WITHER

Applicant

AND

MR WITHER

First Respondent

AND

MRS WITHER SENIOR

Second Respondent

Catchwords:

PRACTICE AND PROCEDURE - Suppression - Where the husband makes an application for the reasons and final orders to be suppressed pursuant to rule 94 of the Family Court Rules 2021 (WA) - Where suppression is sought based on the nature of the husband's occupation and his perceived potential adverse impact upon his professional reputation - Where the wife opposes such application - s 102PF of the Family Law Act 1975 (Cth) - Grounds for suppression not established - Court's primary objective is administration of justice to safeguard the public interest in open justice - Reasons to be anonymised for publication - Case turns on its own facts

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Senior Counsel A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Norton & Landle (Suppression or Non-Publication Orders) [2015] FamCA 125

Wither and Wither & Anor [2024] FCWA 177

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wither and Wither & Anor has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

TYSON J:

1 The husband seeks an order that the Reasons[1] ("Reasons") and the orders following the trial be suppressed pursuant to rule 94 of the Family Court Rules 2021 (WA) ("the Rules"). In support of his application, he relies upon his affidavit, sworn 16 September 2024. The application is opposed by the wife, who says in effect, the criteria upon which a suppression order could be made have not been satisfied.

What is the husband's case?

[1] Wither and Wither & Anor [2024] FCWA 177

2 In turning to the husband's case, in support of his application, he deposes that he is a [specialised professional] at [workplace redacted], and during the course of these proceedings, a number of [professional individuals] have approached him and made inquiries about the matter, including in relation to the reasons.

3 He submits other professional individuals are aware of the proceedings because of its inclusion in the daily court list and have commented that they were interested in reading the Reasons. The husband deposes if the Reasons are published, he considers he will be easily identifiable even if they are anonymised because of: (1) the factual circumstances; (2) the matters in issue; (3) his identity together with the identity of his and the wife's counsel; and (4) the trial dates.

4 The husband deposes there is no public interest in the identification of him, nor could there be any general interest in the Reasons, which are specific to the factual circumstances of his marriage. The husband deposes to being concerned that if the Reasons are published, they may adversely impact upon his professional reputation, cause him both personal and professional embarrassment, and potentially impact upon his capacity to attract work. He deposes there are no matters of new legal principle which would warrant the reasons being published for the benefit more broadly of family law practitioners.

5 In response to my queries, the husband confirmed he is relying upon section 102PF (1)(a) and (1)(c) of the Family Law Act 1975 (Cth) ("the Act").

What is the wife's case?

6 Senior counsel on behalf of the wife observed that the Court routinely publishes anonymised reasons, which redact information that would identify the parties, with redactions including not only names, but professions, the names of witnesses or any other material which may identify or enable the identification of parties.

7 The wife's senior counsel says the husband has failed to identify: (1) what precisely would cause a prejudice to the proper administration of justice; and (2) any safety issues, which would otherwise support the suppression order.

8 Senior counsel for the wife submits in the five years that this litigation has been on foot, the husband's evidence at its highest has been that he has been approached by professional individuals who have made inquiries about his case. The husband is silent as to whether any of those professional individuals, for example, have been involved in the case.

9 The wife's senior counsel says that even if the husband were identifiable by those that he knows, he has not articulated of what the prejudice would be. Further, [redacted] ought be familiar with the relevant provisions in relation to the confidentiality of proceedings. Senior counsel indicated in his view, there is a broader interest in the Reasons being published, in circumstances where that involved a determination of section 106B of the Act.

What is the law?

10 As identified during the hearing, Part XIA of the Act contains provisions for dealing with suppression and non-publication orders. Section 102PD provides safeguarding public interest in open justice, 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.

11 The Court, as observed, has the power to make orders on grounds permitted by this Part to prohibit or restrict the publication or disclosure of information, which would tend to reveal the identity of a party or a witness, with the Court being entitled to make such orders as it thinks appropriate.

12 Section 102PF of the Act, sets out the grounds upon which the Court may make such an order:

(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 or 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).

13Where a suppression order is made, the Court must specify the ground or grounds upon which it has been made.[2]

[2] S 102PF(2) of the Act.

14 Justice Tree, in Norton & Landle(Suppression or Non-Publication Orders) [2015] FamCA 125, helpfully reviewed the relevant legal principles, and from paragraph [15], stated as follows:

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 s102PF(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 upon which it is made.

[16]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.

[17]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 the 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 suppress parts of a judgment, including those parts of the judgment dealing with the application for a suppression order: see Hamzy v R (ibid);

• 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.

[18]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 section 121 of the Family Law Act. So long as section 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 suppression or non-publication is "necessary" to achieve either of the four problems specified in section 102PF(1).

Discussion and conclusion

15 In turning to the current application, in considering whether to make a suppression order, I must take into account that a primary objective of the administration of justice, is to safeguard the public interest in open justice. The question is not whether it is reasonable or convenient to make a suppression order. Instead, I must be satisfied that it is necessary. It is not a balancing exercise.

16 It has been observed that the language of the Act precludes the making of an open-ended order, insofar as a suppression order.

17 Having carefully considered the husband's application, I am not satisfied that the criteria has been satisfied. Nothing in either the evidence or the submissions properly satisfies me that a suppression order is necessary for his safety. To the extent the husband says that the order may benefit his wellbeing and professional reputation, that is not the same as an order which is necessary for the protection of one's safety. As observed, distress or embarrassment likely to arise from publication, is not a sufficient reason to make a suppression order.[3]

[3] See Norton & Landle(Suppression or Non-Publication Orders) [2015] FamCA 125, [17].

18 Further, nothing in the husband's submissions nor in his evidence satisfy me that a suppression order is necessary to prevent prejudice to the proper administration of justice. From the husband's evidence, it is clear there is information already in the public domain insofar as the fact that the matter has appeared in court lists. For these reasons, I decline the husband's application.

19 In my view, the circumstances support the Court taking steps to publish anonymised Reasons in such a manner that seeks to minimise any potential embarrassment, which may be experienced by the husband. I am so satisfied because in the Reasons, a relevant consideration was the husband's income and the income-earning capacity. Any potential adverse impact upon the husband's income and income earning capacity, would be prejudicial to the husband, but also to the wife.

20 As a consequence, I intend to make arrangements for the administrative anonymisation of the Reasons in such a manner that would extend beyond the normal terms.

Orders

1.The application for suppression of the Reasons be and is hereby dismissed.

These reasons are the reasons for decision I delivered on [date redacted], edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Associate

21 OCTOBER 2024