Open justice and the family law courts in a changing world: to what extent should transparency trump privacy?

Open justice is a fundamental tenet of the Australian judicial system. However, there is a long-standing view that in the family law context open justice should yield more readily to other competing policy considerations, in particular, the privacy of the participants in the proceedings and their children. To some extent, this view is reflected in the current provisions of the Family Law Act 1975 (Cth) relating to attending courts and reporting proceedings. This article revisits those legislative provisions in the contemporary context, which includes the ubiquitous internet and the challenges which COVID-19 poses to the way in which family law proceedings are conducted. This article approaches the question from the perspective of ‘on what basis should the common law position not apply to proceedings heard in the family courts’?

In respect of attending court, we affirm the default position of open family law courts and warn against a liberal use of the powers conferred on these courts to either close, sit in chambers or dispense with oral hearings altogether. We are wary of the consequences to open justice of the migration to online hearings. Regarding the reporting of cases, we cautiously maintain that in cases involving children, the need to protect privacy is compelling enough to be regarded as a necessity. By contrast, in matters not involving children, we suggest that consideration be given to recalibrating the tension between open justice and privacy in the family law context in favour of the former.