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Published: 26 October 2016
Author: Danae Lekakis

Is the right to privacy in family law in the public interest?

If high profile couple Brad and Angelina had separated in Australia, the media would not be allowed to report on their family law proceedings in a way that identifies them or their children.

Under the Family Law Act 1975,[1] it is an offence to publish anything that identifies a party or person associated with family law proceedings. This ensures that litigants’ sensitive family law matters are protected from salacious media gossip.

Protecting the privacy of litigants after a relationship breakdown is especially important to ensure the wellbeing of children caught in the middle, who are sheltered from having their parent’s personal family law matters the subject of newspaper headlines.

However, some journalists have lamented being unable to put a human face to family law proceedings that cover topics deemed to be in the public interest, such as family violence and child abduction.

The question then is: is the right to privacy in Family Law in the public interest?

Is open reporting in the public interest?

Lawyer Ian Kennedy, psychologist Michael Carr-Gregg and well-respected ABC journalists Leigh Sales and Sarah Ferguson debated this issue at the 17th National Family Law Conference. The panel considered whether the upholding the privacy of family law litigants outweighed the public benefit of openly reporting on family law cases. 

Sarah Ferguson thought the privacy provisions of the Family Law Act were too restrictive in preventing journalists from identifying litigants when reporting on family law proceedings. She noted how powerful it can be to put a human face to a story, citing the impact Rosie Batty and Sally Faulkner have had on public policy surrounding family violence and parenting disputes.

It was argued that the privacy provision prevented journalists from making important contributions to policy debates surrounding issues central to Australia’s family law system, and that an appropriate 'public interest exception' to restricted reporting is essential.

However, psychologist Michael Carr-Gregg felt that protecting the identity of litigants outweighed these public policy concerns where children were concerned. 

He thought it was important to protect children from the suffering they may experience in seeing, hearing or reading about their case in the media. Mr Kennedy agreed, noting that the privacy provision did not stop journalists from reporting on family law matters absolutely.

While we may now live in what has been described as a 'post-privacy world' due to the accessibility of information by way of internet and smart phones, those entering family law proceedings take comfort knowing that what is said and done in court is protected from being openly reported in the media.

Unlike knowing the identity of criminal offenders, it is not necessarily in the public interest to know who exactly is involved in the breakdown of a relationship if the facts of the dispute can still be reported.

Family law proceedings are highly personal to the people involved, and not all media outlets can be relied on to report on matters in a sensitive, appropriate and contextual way. 

Until such time as that may be the case, it is important we continue to uphold the privacy of family law litigants and their children.

[1] Section 121

Categories Family Law, Legislation

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