This Doesn’t Concern You: Privacy in Family Court Proceedings
By Neal Wood |06 September 2017 |Separation and Divorce-Articles
Depending on your circumstances, going through a separation or divorce can be a very confronting and isolating time. Naturally, in those dark and difficult times, we turn to our good friends, family and other supports to help get us through and share the load. Even if those other people haven’t been through the same experience, their warmth and empathy can make those long days in the first few weeks after separation seem that bit more manageable.
In the midst of that safe, comfortable environment, the distinction between what it is probably okay to share with your inner circle and what may best be left to the privacy of your family law solicitor’s office is probably the last thing on your mind. Thankfully, for the most part, the distinction between what is and isn’t appropriate to share with others may never actually be born out. All things going well, given a bit of time and the right assistance, it may be entirely possible for you and your former partner to be able to amicably reach an agreement on what happens at the end of the relationship, whether that is property, parenting, child support or divorce.
When it comes to resolving matters outside the context of court proceedings, we often talk about things happening in the shadow of the law. In essence, that means that even though the technical court rules and processes do not strictly apply, there is a general agreement to adopt the same process such as swapping relevant documents and statements of fact, engaging joint experts to narrow the issues in dispute, and then attending a conference to resolve the dispute. While everyone is prepared to voluntarily follow that process, things go well but sometimes responses or documents are not forthcoming and the voluntary process breaks down.
While the majority of matters will resolve without ever seeing the inside of a court room, there are of course those situations where a court resolution may be the only realistic alternative to move the matter forward and secure that important end. Once court proceedings have been started, the informal process converts to something with a lot more substance and, importantly, more strict consequences if a party elects not to play by the rules.
While the terms of the Family Law Act and the accompanying Rules of Court can be very complex, they create an environment where the formal process to resolve, or at least reduce, the issues in dispute is known even if the ultimate outcome is still uncertain and within the discretion of a judge. Suddenly, the option not to play by the rules goes away and if a party elects not to respond, provide documents, or participate in the dispute resolution process, then there are steps that can be taken.
Why is all that important? Well, in essence, once you have the formality of a court process and the formal rules apply, it is no longer voluntary. Parties need to have confidence in the court and the process which they are now required to participate in, including that the very personal and sensitive information that they are now required by law to provide to the other party and the court will be treated as such.
Unlike almost all other court proceedings, family law proceedings are essentially private disputes. Even the cases that are decided by judges are only published on the legal reporting website after a special order is made to change the names of the parties and children involved and remove all the personal information of those involved such as dates of birth, addresses, businesses, or companies and the like. The court and lawyers take that privacy very seriously; not only because it promotes the resolution of disputes, but because there are strict consequences that can flow if someone decides to use private court documents for a different purpose. In short, the Family Law Act (section 121) is absolutely clear that such publication is an indictable offence unless expressly authorised by a court order or falling within a very, very limited range of exceptions.
Unless you have received express advice from your lawyer otherwise, treat every court document or piece of information or document you receive in the context of your family law matter as private and confidential. While it may be tempting, almost natural, to want to share your experience and side of the story with others, it should never happen by showing or giving copies of court or financial documents to others.
Within the family court environment, complying with the absolute letter of the law is just so important even if the other party doesn’t. Sadly, one of the most common examples we come across as family lawyers is where a former partner decides to involve other people in a family court matter. It varies, but that involvement can be anything from posting things relating to court events on Facebook, to showing or giving copies of court documents to friends, family members, teachers, or counsellors. At an extreme, it can involve a party providing the other person’s court or financial documents to their employer, creditors, or the Tax Office to embarrass or attempt to gain some leverage over their former spouse. In short, it cannot and should not happen. If it does, it is not an invitation to return serve or set the record straight. By all means, capture the evidence of what has occurred, but leave it at that and seek advice from your family lawyer right away.
There are right ways to deal with breaches of the law about the privacy of family law disputes and they are generally best left with your lawyer to help guide you on.
So while it is okay to share your experience with those around you, leave the court and other documents between you and your lawyer.