Smith v Jones (No. 3)

1. [1]

   On 16 September 2022 I refused an application by the plaintiff for a suppression order over her name: Smith v Jones (No. 2) [2022] NSWSC 1321. The bases for the application made no reference to s 121 of the Family Law Act 1975 (Cth).

2. [2]

   I subsequently became aware of this provision and its effect which makes it an offence to publish an account of a Family Law proceedings (or any part of it) that identifies or tends to identify persons who are parties to that proceeding.

3. [3]

   On the basis that my judgment in the primary proceedings - then not yet published - dealt in detail with correspondence in and details about proceedings between the parties under the Family Law Act, I took the view that the parties should assist the Court with further brief written submissions.

4. [4]

   Submissions were provided on 21 October 2022. Both parties concurred with my preliminary view that s 121 on its face appeared to require at the least, a pseudonym order protecting the identity of the parties.

The relevant legislation and principles

1. [5]

   Section 121(1) of the Family Law Act states:

2. [6]

   There are some exemptions provided under s 121(9):

3. [7]

   Counsel for the plaintiff submitted none of these exemptions applied. I agree.

4. [8]

   As noted in DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488 per Perry J at [135] to [137]:

5. [9]

   Suppression and non-publication orders are dealt with in the Court Suppression and Non-publication Orders Act 2010 (NSW). It provides relevantly in Part 2 of that Act as follows:

Submissions, Decision and Order

1. [10]

   Counsel for both parties submitted that the making of orders protecting the identity of the parties by way of a pseudonym would protect the proper administration of justice in this case by ensuring comity with the scheme of anonymity mandated by s 121 of the Family Law Act. I agree.

2. [11]

   The only other option would be to remove from the primary judgment all the references to the Family Law proceedings. This is not a viable option as the reasoning underpinning the judgment relies upon details in correspondence between the parties in those Family Law proceedings and if reference to that material was removed, the judgment would be incomplete and the reasoning elliptical.

3. [12]

   In my view, the only practical way to serve the obligation to safeguard the public interest in open justice is to provide the full reasons, but with pseudonyms to protect the parties’ interests under s 121 of the Family Law Act.

4. [13]

   I am satisfied the order is necessary to prevent prejudice to the proper administration of justice and I make the following order:

   1. (1)

      Until further order, the parties in these proceedings will be known as Helen Smith and Stephen Jones upon the grounds specified in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that this order is necessary to prevent prejudice to the proper administration of justice.