Publication of family law proceedings: understanding when exemptions are permitted
Family Law - 6 June 2018
Restrictions on the publication of family law proceedings exist under the law. However, there are circumstances in which documents from family law proceedings can be used in other related proceedings.
- Restrictions on publication under the law
- Exemption on the restriction
- How we can help
- Further information
Section 121 of the Family Law Act 1975 (Cth) (Act) creates a punishable offence for anyone who publishes or broadcasts any account of any family law proceedings (in whole or in part) which identifies any parties (related or otherwise) and witnesses in the proceedings. This provides anonymity and privacy to those involved in family law proceedings.
This prohibition extends to all forms of publishing and includes allowing friends, family, non-family members, schools, employees, employers, banks and other institutions, amongst others, from reading the documents prepared during family law proceedings. They cannot be posted on the internet or in any way made available to the public.
Further, there are implied undertakings which may apply to the use of Court documents outside the course of family law proceedings. For example, the "Harman" undertaking provides that where one party is compelled by a court or court process (i.e. by the process of discovery, or by subpoena) to disclose documents, the party obtaining those documents as a result of that process, may not use those documents for any purpose other than for that specific purpose for which they were obtained.
However, the Act contains a number of exemptions by which family law proceedings (in whole or in part) can be published. When decisions are handed down by the Family Court or Federal Circuit Court in family law matters, the Court will anonymise the parties and witnesses to the proceedings. Judgments in those matters will adopt pseudonyms for each party, omit the location/s of properties, and importantly, remove children's names and dates of birth.
Sometimes it is possible to use documents from family law proceedings, including affidavits of evidence and expert reports, for the purpose of another court proceeding, such as criminal proceedings or applications for family violence orders, including Apprehended Violence Orders or Intervention Orders.
Recently, the Family Court permitted a father to use an expert Family Report in the Magistrates' Court as evidence to defend his intervention order proceedings. In another recent case, the Family Court permitted the police to use the family report prepared for the Family Court in the Supreme Court to support criminal proceedings against both parents. In both these instances, the Family Court did impose conditions on the use of Family Court documents, for example by requiring certain details which were not relevant to the other proceedings to be redacted.
If you are concerned about how information about, or documents produced in your family law proceedings may be used by you, your former spouse or in other court proceedings, we recommend that you seek appropriate legal advice.
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.