Transparency & Open Justice in Family Law

The Honourable Justice Michael Lee has spoken this week of the need for transparency within court systems. In a speech delivered at the Piddington Society Boojarah Conference his Honour said “It seems to me … promoting principles of open justice are indispensable for the optimal operation of our criminal and civil justice system.” While his comments were made in the context of suppression and non-publication orders, the same argument may be made in the family law jurisdiction.?

In family law, litigants are afforded a high level of protection by way of Part XIVB of the Family Law Act (and historically pursuant s121) which states ‘It is an offence to communicate an account of proceedings under this Act to the public if the account identifies certain people involved in the proceedings.’ ‘Certain people’ includes a party to the proceedings, a witness to the proceedings, and a person related to or associated with a party to the proceedings. As a result, all externally published judgments are anonymised and parties given pseudonyms.?

However, a trend has emerged in recent years where this anonymisation has extended beyond statutory requirements. This includes the de-identification of first instance judges in appeal cases and the adoption of generic descriptors for underlying facts. For example, judgments now regularly refer to the parties operating a business A, splitting super in Superannuation Fund 1, or a parent wishing to relocate to country T. This leads to three issues:

1. Judgments become difficult to follow and are less accessible due to a lack of contextual meaning. In a world where we can distinguish Gryffindors from Slytherins, and Starks from Lannisters, attaching meaning to a pseudonym is far more effective than alphabet soup.
2. Relevant facts that could influence the outcome become obscured. Potential litigants want to know their chances of being able to travel or relocate to a specific location, rather than ‘country T’ or ‘a European Country’ which could capture unstable regions like Ukraine, or more stable countries like the United Kingdom, France or Germany.
3. Transparency and accountability in the judicial process, both systemically and individually, are arguably compromised. From an open justice perspective, is unclear what justification could be made for the de-identification of first instance judges in appeal judgments, particularly where the first instance judgment is often linked.?Clear, transparent judgments demonstrate to the public how the court operates and hold it, and its officers, accountable.

In a common law system, and a jurisdiction that is discretionary in nature with many self-represented litigants, it is important to have as many of the salient details of prior cases available. This aids in identifying or distinguishing relevant authorities and assessing potential outcomes. When contextual meaning is removed, judgments risk losing some of their meaning and function.

"If...we truly believe that proceedings held in public and accessible to the public is the best security for public confidence in the impartiality and efficiency of the justice system, its protectors have a responsibility to do what we can to promote the principle of open justice." - the Hon. Justice Michael Lee

While in some cases a specific combination of unique facts may warrant a greater degree of de-identification to protect parties, this is not true for all facts in all cases.?The anonymisation of judgments should have in mind an average member of the public, a stranger to the case, and not the overzealous investigator actively attempting to piece together information to identify a party. As Justice Lee notes, “much of what goes on in the courts is wholly devoid of any interest except to those directly involved.”

The highly personal nature of family law justifies a higher level of privacy for litigants than other areas of law. The Family Law Act provides for this. However, as Justice Lee reminds us, there is a need for balance between privacy and the principles of open justice.

Caitlin Torr | Family Lawyer | [email protected]

Justice Lee's full Boojarah Conference speech can be accessed here.