Publicity in family law proceedings

Submission by the
National Women’s Justice Coalition to the Attorney-General's Department in relation to the Report on Publicity in Family Law Cases: Proposals for Amendments to the Family Law Act Section 121

[submission dated 8 August 1997]

* List of endorsements * How to endorse *Background *Read the submission

Background

The Report on Publicity in Family Law Cases was tabled in Parliament by the Attorney-General on the 24th June 1997. Take this link to read the Attorney's press release.

can be obtained by contacting the Family Law Branch of the Attorney-General's Department, Robert Garran Offices, National Circuit Barton ACT 2600 ph: 02 62506666 fax: 02 62505917. The report might also be available through Australian Government Bookshops.

Section 121 of the Family Law Act deals with restructions on publicity in proceedings under the Family Law Act. To read s. 121 take this link. To go to the whole Family Law Act take this link

You can also read reported Family Court cases on the internet

Submission

Summary * Submission *

Summary:

The NWJC submitted that:

· the process by which the report has been developed is flawed and has resulted in a report which provides a poor basis upon which to elicit comment

· the process for evaluating submissions should be transparent and the NWJC is concerned that this seems unlikely to occur due to the possible timetable indicated in the covering letter

· consultation standards modeled on the practices of the ALRC should be developed and should normally be applied to all reform proposals regarding family law. The Family Law Council should be tasked with the development of consultation standards and adequate resources should be provided to enable the Family Law Council to properly undertake this reference and all other reference.

· the principles of open justice and privacy identified in the report are not the only principles which are applicable. The following principles are also applicable and should be thoroughly evaluated, that is: the principles over-arching the Family Law Act; the principle of equality before the law; the principle of access to justice; and the principle of justice as between the parties.

· crucial considerations have not been identified or addressed in the report and many of these are listed in the submission.

· the report does not identify the range of options regarding how mis-information, inaccurate and unfair reporting might actually be addressed. Numerous strategies are available as an alternative to those proposed in the report.

· the NWJC does not support the recommendations in the report and instead suggests that the range of possible strategies be addressed through a national forum with a view to formulating a national family law community information strategy.

Submission

1. Flawed process 2. Key issues 3. Identifying and addressing information concerns

1. Flawed process

We do not consider that the report adequately identifies or evaluates relevant issues and as such that it provides a poor basis upon which to elicit comment. We note that if the Attorney-General decides that the Family Law Act should be amended to implement any or all of the recommendations, that he hopes to be able to introduce legislation into parliament this year.

The reference raises important questions and we do not consider that the current process sufficiently serves the interests of the Australian community.

As far as we are aware the author of the report did not have the benefit of an advisory or reference group in relation to the brief. Had this occurred, we assume that many or all of the additional principles we list below would have been identified and explored. The report lacks any significant or meaningful analysis of the social/emotional/economic context concerning the initiation and resolution of matters under the Family Law Act. The inclusion of social science perspectives should be taken to be essential in all references on family law reform.

It is not apparent why a decision was made to direct this reference away from the Family Law Council which is the natural and appropriate body to undertake the inquiry.

The NWJC’s concerns about the process include what may happen next. We are concerned, given the possible time frame suggested in your letter, about the transparency of the process regarding the assessment of submissions.

As you are aware, the Australian Law Reform Commission’s preferred routine is:

· to appoint an expert reference/advisory group on all references, · to use this group and wide ranging research to inform the development of an initial paper which is circulated for comment,

· to undertake some educational activities prior to submissions being received to improve the level of understanding of the issues raised and hence the quality of the submissions,

· to summarise the submissions into a more advanced report, which is also circulated for comment, and

· to produce the final report which openly balances competing views and considerations.

In our view, this model should normally be applied to family law reform references and the Family Law Council, properly resourced and properly constituted for the particular reference, is the body which should receive these tasks.

The process adopted in relation to the current inquiry is flawed and we urge that the matter be referred immediately to the Family Law Council to continue and complete the reference along the lines applied by the ALRC.

We would also encourage the Attorney-General to make a reference to the Family Law Council to advise on the establishment of consultation standards for family law matters. In addition to dealing with the steps which should normally be taken, we would strongly support the inclusion of the following matters for routine consideration on all references:

impact on equality before the law,
impact on legal costs and the length and complexity of proceedings,
impact on access to justice,
impact on justice as between the parties,
impact on ongoing relationships, and
impact on the ability of parties to expeditiously and constructively resolve disputes.

The quality of the consultation process obviously affects the credibility of reform initiatives and the level of acceptance of reform proposals.

2. Key issues

The paper states that the two key competing principles relevant to the reference are open justice and privacy. We agree that these principles are relevant but there are other relevant principles which are in various ways inter-related. These are:

· the principles over-arching the Family Law Act itself - that is, the principles in s. 43 and in particular:

*the need to give the widest possible protection and assistance to the family,
*the need to protect the rights of children,
*the need to ensure safety from family violence, and
*the means available for assisting the parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

· equality before the law - including consideration of the possible differential impacts of available approaches regarding publication on identifiable groups. For example, women, those from a non-English speaking background, those in non-suburban areas, older people, indigenous Australians etc. We would like to see consideration of factors such as:
*the possible impacts of the proposals in cases involving violence, including cross vested personal injury matters (eg. sexual assault matters);
*the relevance of differential access to financial resources in terms of the ability to bring an application for suppression of identifying information; and
*very importantly, consideration of the views of likely and existing litigants in relation to publicity options (with this canvassing any relevant research undertaken in Australia or elsewhere and including reports from focus groups regarding the options under consideration).

· access to justice - including the potential barriers which may arise from concern that identifying information may be published and how this may particularly affect some identifiable groups or unfairly prejudice some individuals. The fear of identifying publication may affect the preparedness of one or both parties to commence or continue proceedings.

· justice as between the parties - including the possible impact of publication, or possibility of publication, of identifying details on:

*the dynamics of some disputes,

*tactics in negotiations (including overt or tacit threats to encourage publication of identifying information),

*matters such as the ongoing relationship between the parties and/or their extended family, work and/or business relationships/associations; and

*the possible impact on the value of assets (eg. early publication or publication per se of detail regarding the assessment of the value of assets to be liquidated and/or on the detail of orders for sale)

3. Identifying and addressing information concerns

The paper outlines some concerns about mis-information about Family Court decisions and the Family Court itself. The paper does not give adequate emphasis to the extent of the information which is currently available to the public. There is already public access to reported decisions both hard copy (Butterworth’s and CCH) and on the internet via Austlii. The media already reports noteworthy cases. Consequently, we do question the fundamental assumption in the paper that the problems relate to lack of information rather than to the quality of reporting.

The paper does not squarely identify the range of options regarding how mis-information, inaccurate and unfair reporting might actually be addressed. The assumption that significant progress can be made by permitting publication of identifying information in non-children’s cases, is unconvincing.

The quarantining of ‘children’s cases’ as proposed in the paper is also incomplete and unconvincing because of the likely impact on some children of identifying information regarding property division, sole occupation, spouse maintenance and other cases between their parents or others. We endorse these and other points raise in the submission by the National Children’s Youth Law Centre. Although there may be many other strategies to improve the level of community understanding and community and media comment on family law matters we would suggest that the following receive attention:

· the revitalization and proper resourcing of the National Family Law Community Legal Education Working Group - to be supplemented with the involvement of key service providers (including Women’s Legal Services) and interest groups

· concerted efforts to improve the level of familiarity with family law concepts in school curricula and among service providers (counsellors, mediators, family support workers) and on the part of key organisations and networks

· greater focus on media access to reported cases (without change to s.121) and media briefings on key cases

· greater use of electronic technology - particularly CD-Roms and the internet to make information about family law processes, legal criteria relevant to particular matters, available services etc. available to the general public

· greater support for the Family Court from Parliamentarians and particularly from the Attorney-General when the Family Court and/or particular judicial officers are under unfair or uninformed attack

· greater effort to assist Parliamentarians, and particularly new Parliamentarians, to gain familiarity with family law concepts - including, where appropriate, early briefings on important decisions which may attract media attention

We would suggest that these and other possible strategies be addressed through a national forum on family law information for the Australian community with a view to formulating a national family law community information strategy.

END

List of endorsements

The submission was specifically endorsed by:

Association of Non-English Background Women of Australia
National Association of Community Legal Centres
National Council for the Single Mother and Her Child
Women’s Legal Centre (ACT & Region)
Women’s Legal Resource Group
Victoria Top End Women’s Legal Service
Central Australian Women's Legal Service
Women’s Legal Service, Brisbane
Women’s Legal Service Tasmania
Women’s Legal ServiceWestern Australia
North Queensland Women’s Legal Service
Northern Rivers Community Legal Centre, Lismore
Paule Denmeade & Co, Solicitors, Lismore
Parks Legal Service, South Australia
Marion Community Legal Service, South Australia
Professor Sandra Berns, Dean & Head of School, Law School, Griffith University
Miranda Kaye, Faculty of Law, Sydney University
Phillipa Weeks, Faculty of Law, Australian National University
Helen Rhoades, Law Faculty, University of Melbourne
Lee Ann Marks, School of Law and Legal Studies, La Trobe University