There are limitations on publishing details of cases in the Family Court of Australia, Federal Magistrates Court and state/territory courts exercising jurisdiction under the Family Law Act 1975 (‘the Act’). This fact sheet is for the assistance of the media. An extract from Section 121 is included – to obtain a copy of the complete Section 121 go to http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s121.html
This fact sheet provides general information only. It is not legal advice. If you wish to consider what may be said to others about proceedings and those involved in them, you should seek legal advice. The Court cannot provide that advice.
Restriction on publication of court proceedings (Section 121)
The administration of justice is open and accessible to the public and therefore, subject to an order closing proceedings, is undertaken in open Court. Publication of accounts of family law proceedings is, however, prohibited where they identify certain persons, including parties, their relatives and associates and witnesses (including family consultants). While not every public account of proceedings is prohibited, care must be exercised here.
Section 121(1) of the Act provides:
“(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 to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate or
(c) a witness in the proceedings
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.”
Sub-section 121(3) contains more precise details of what may amount to the prohibited identification of a person
Subsection 121(9) provides a number of limited exceptions.
For example, s 121(9)(da) permits publication of court lists authorised by the court. The Court issues a daily list of cases being heard, using the parties’ names, which is available from the Internet, the newspapers or from the court lists in the registries. The courtrooms are open and anyone can sit and listen to the proceedings – however, they cannot publish or disseminate an account of the proceedings which would identify the parties.
To obtain a copy of the complete Section 121 go to
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s121.html
In the interests of open justice, Family Court cases are anonymised and published on Austlii and
www.familycourt.gov.au. A judge may decide that a case to be published need not be anonymised prior to publication.
Enforcement of s121
Proceedings for a breach of s121 can only be commenced by, or with the consent of, the Commonwealth Department of Public Prosecutions, on the advice of the Attorney-General’s Department. The complainant has the primary obligation for raising such matters with the Attorney-General’s Department.
Publication orders
The court may approve the publication of an account of court proceedings through a publication order.
Publication orders are often made to assist in the location and recovery of children. In particular, the purpose of the publication orders made is to obtain publicity about the case and aid the Australian Federal Police and State/Territory Police in locating the missing children.
Publication orders are an exception to the non-disclosure provisions of s121 because the court authorises the publication. For more information see s121(9)(d).
A publication order can allow the disclosure of information from the Court proceedings which might, for example assist the location and recovery of a missing child or children.
The publication order will specify the information that can be published, for example:
- the date of birth of the missing child/children and the parent who has abducted them
- a detailed description of the missing child/children and the parent
- photographs
- when and where they were last seen
- where they are believed to currently be.
The publication order may stipulate how and when the disclosure to the public is to occur.
The effect of a publication order is that it lifts the restriction on identifying parties and children involved in the proceedings but in accordance with the terms of the order, still limits the amount of information about the proceedings which may be published.
Once a judge of the Family Court has made a publication order, specific details of the case are provided to media outlets and published on the Family Court of Australia website. Journalists may then report those details and, where an interview with a party or person connected with the proceedings is permitted by the order, contact the Media Manager of the Court to request assistance to contact that person.
The publication order may permit the media outlets which published the original story to publish a report that the child has been located. Media outlets that did not report the fact that the child was missing are not permitted to report on the fact that the child has been found. The publication order may also stipulate that no information about the case can be reported after a certain period of time has elapsed from the date of the order.
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