Is my Family Law matter open to the Public?
In general, most proceedings in family law courts and their decisions are accessible to the public. This is pursuant to section 97 of the Family Law Act 1975 (Cth). Section 97(1) provides that, subject to the Act, all proceedings in a court exercising jurisdiction under the Family Law Act, shall be heard in open Court.
However, under subsection (2), the Court may order that:
a) a specific person or persons not be present during the proceedings or a specified part of the proceedings;
b) persons in a specific class of persons not be present during the proceedings or a specified part of the proceedings; and
c) an order that only the parties to the proceedings, their legal representatives and other such persons (if any) may be present during the proceedings or a specified part of the proceedings.
Interestingly, the above proposition – of the family law courts being open, has not always been the case. They were previously heard in closed courts.
Previously all Family Law matters were heard in closed courts
Prior to 1983, Section 97 of the Family Law Act provided:
“(1) Subject to sub-s. (2) and to the regulations, all proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, shall be heard in closed court.”
In Russell v Russell  HCA 23; (1976) 134 CLR 495 Gibbs J said at 520-521:
“It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted `publicly and in open view’ (Scott v Scott  AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for `publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson  AC 177 at 200). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. If the Act had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases – even proceedings for contempt – the Parliament has attempted to obliterate one of their most important attributes. This it cannot do.
Changes to the Family Law Act – From Closed to Open
In 1983, the amendments were made to the Act under the Family Law Amendment Act 1983 No. 72 of 1983. Section 52 of the amending act provided:
52. Section 97 of the Principal Act is amended by omitting sub-sections (1) and (2) and substituting the following sub-sections: ”(1) Subject to sub-section (2) and to the regulations, all proceedings in the Family Court, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court. ”(2) In any proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, the court may, of its own motion or on the application of a party to the proceedings, make one or more of the following orders: (a) an order that a specified person is not, or specified persons are not, to be present in court during the proceedings or during a specified part of the proceedings; (b) an order that persons included in a specified class of persons are not to be present in court during the proceedings or during a specified part of the proceedings; (c) an order that only the parties to the proceedings, their legal representatives and such other persons (if any) as are specified by the court may be present in court during the proceedings or during a specified part of the proceedings.”.
In John Fairfax Publications Pty Limited v the Attorney General for New South Wales  NSWCA 198 (2 August 2000), Spigelman CJ said at 158:
“…it is an essential aspect of the character of courts of law that they are held openly and not in secret.”
An example of proceedings under the Family Law Act where an order was made for a closed court was in the case of Re: Alex  FamCA 1292 (6 May 2009). The proceedings involved a special medical procedure. The young person was born biologically female and had been diagnosed with gender identity dysphoria. An application was made for permission to perform bilateral mastectomies and an application to issue official documentation reflecting the young person’s gender as male. Directions were made during the case in December 2003 which included that the Court be closed during proceedings pursuant to s 97(2) of the Family Law Act 1975 (Cth).
In another case, Re Lesley (Special Medical Procedure)  FamCA 1226, Barry J made orders on 12 December 2008 for only parties to the proceedings and their legal representatives to be present in Court during the proceedings in accordance with section 97(2) of the Act. Interestingly, when the judgment was published, the names of the legal representatives were also omitted. The omission of the names of the legal represenstives is quite rare.
In Re Lesley, the case also involved an application for a special medical procedure . In this case, the application was for a Gonadectomy where Child identified as a girl. The court approved the application and made a declaration in the following terms in accordance with section 67ZC of the Family Law Act 1975 (Cth):
a. the proposed surgery for Lesley involving the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, is in the best interests of Lesley; and
b. the proposed surgery for Lesley being the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;
c. such further or other necessary and consequential procedures to give effect to the treatment of Lesley for her condition of 17-β/HSD deficiency, including hormonal treatment as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;
d. all scientists, doctors and other medical practitioners be and are hereby authorised to conduct such operations and procedures indicated in (b) and (c) above upon the written authority of the said Father and Mother.
Open or Closed?
Most family law proceedings are conducted in open courts, however the Court does have the power to make the court closed. Such application to close a court can be made by one of the parties or the Court can make such order on it’s own motion.
Article Written by Claire Naidu, Family Lawyer and published on 16.5.2014
Please note that the information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances because the application of laws and regulations undergo frequent changes. For further information, please do not hesitate to contact our family lawyers at from Claire Naidu & Co, Family Lawyers & Mediators at firstname.lastname@example.org