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Suppression is about more than press freedom

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Details of Family Law cases are being suppressed in the media, but is it really helping the cause? (Image via thebluediamondgallery.com)

Suppression of Family Law cases in the interests of justice works against the publicity needed to raise awareness, writes Ariel Marguin.

SUPPRESSION HAS BEEN a hot topic lately in the Australian media and the Senate. 

Is this because pundits like Alan Jones and Andrew Bolt feel that ordinary punters are being silenced and their freedom of speech curtailed? Given their past records, I doubt that. Unless a person agrees with them, they get no air time. So they’re running their own suppression racket, as are most of the media who filter out anything that might frighten the horses, or the FRights (Fathers’ Rights groups), or sponsors, or Government who are funding, say, the ABC.

Or is it because making money out of stories about George Pell and other alleged transgressors might be limited in the interests of a “fair trial”?

Is it because the AFP “spectacularly” raided journos from both the ABC and News.com? 

The acme of suppression is felt by those who want to expose the unbalanced and unreasonable processes of Family Law.

In an article in the Saturday Paper in March 2019, Arthur Moses, President of the Law Council of Australia, wrote about suppression and the media:

Undeniably, there are matters where it can be argued that suppression is also in the interests of justice. Where competing tensions arise, recent experience suggests we need to reconsider and recalibrate that balance in this age of digital communication and globalisation. We must ensure suppression laws are fit for purpose and promote, not curtail, the administration of justice.

 

Open justice requires not only that justice be done but that justice be seen to be done. This means that, wherever possible, the media should be able to report on matters before our courts.

 

Legislation prohibits the publication of certain particulars in relation to various forms of litigation. For example, the Family Law Act prohibits publication of names of parties involved in family law cases.

Justice for Children Australia is aware of many Family Law cases where capricious and cruel judicial decisions adversely affect the lives of children.  Suppression orders trump public disclosure and the decisions by judicial officers exposing children to risk go unreported.

Contrary to the views of Arthur Moses, secrecy and suppression do not invariably ‘protect the safety of a witness or victim, vulnerable people or children’.

As U.S. Justice Brandeis wrote in the 19th Century:

‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’

Brandeis was focused on changing financial services regulation but his observation is relevant to the operation of “open justice” and can also be applied to the incredible financial, emotional and psychological costs for non-lawyers caught up in legal processes — in particular, Family Law and children.

Section 121 of the Family Law Act makes it an offence to publish proceedings that identify persons or witnesses involved in Family Law proceedings. But under certain circumstances, these details can be revealed. In at least two instances, this was because the fathers of children involved in custody disputes were allowed and even encouraged to spread the names and pictures of the children all over the media because the mothers had “stolen” their children to protect them from damaging court decisions.

But the mothers – and the children – were not allowed to use such a forum to respond and to explain their side of the story. A story where sexual and other abuse by these fine, upstanding fathers led the mothers to remove the children so they would not be subject to further abuse. The abuse was ipso facto sanctioned by the Family Court which is supposed to protect children.

What advantages do children who’ve been abused by such parents gain from having their names and stories suppressed? Absolutely none — on the contrary, their already significant disadvantages (lack of genuine representation, inability to be heard by judicial officers, separation from their loving and protective parent) are intensified. How often have I heard victims of our “fair and public” legal system cry out in agony, “But surely the Judge will listen to us and protect us” and how often has their faith in this system been betrayed and traduced?

Moses says that:

‘We must ensure that suppression laws are fit for purpose and promote, not curtail, the administration of justice.’

That is often contrary to how Family Law is administered.

Moses acknowledges that ‘Suppression orders, by nature, impede open justice’. His article discusses the effect of these laws on media ability to report and, of course, that is very important. But for Justice for Children Australia, the most important and absent consideration is that children should be listened to and all processes in Family Law should start from them and work upwards rather than the top-down institutional approach that currently prevails.

Decisions about children's welfare, wellbeing and happiness must be taken out of the adversarial legal system immediately. By concentrating on shooting the messengers (people who try to protect children and media who try to tell the truth), suppression orders ensure that the message is not heard and the truth cannot be revealed. Children are silenced and their abusers advantaged.

For years, the Family Law system has led the way in silencing and suppression. Whenever children’s welfare or legal rights – or their human rights – are discussed, Family Law is excluded from that discussion. 

The 2008 National Plan to Reduce Violence against Women and their Children barely mentioned children or mothers suffering from Family Law processes which force children to live or have unsupervised contact with their abusers.

Since 2008, protection for women and children has actually diminished. Partly because women in various governments like Pru Goward in NSW and Julia Gillard have made life worse for women and children by removing refuges and subsistence payments or resources. The single mothers pension was reduced by the Gillard Government, while refuges and services were closed by Pru Goward as Minister for Women and Community Services. 

Stolen generations; apologies for forced adoptions; Royal Commission into Institutional Responses to Child Sexual Abuse — all these have tried to address the damage done to certain children in this society. But never children in Family Law. It’s as if they’re invisible. Incidentally, how is the Family Court not an institution? It was specifically excluded from the Terms of Reference of that Royal Commission.

Almost the only acknowledgement of children’s silencing was a report by the Human Rights Commission in 1997, Seen and heard; priority for children in the legal process (1997). Since then, despite appointment of a Children’s Commissioner, nothing has happened to improve children’s ability to have a real voice and a real choice in Family Law.

The way children’s lives have been damaged by Family Law and related systems means they may struggle to survive, even if they’re not murdered as Darcey Freeman, Jack and Jennifer Edwards and so many others have been.

Individuals, organisations and media outlets are too scared to speak out about the children who are being damaged and abused every day by decisions made by judicial officers in the Family and Federal Circuit Courts.

Children must be given a real choice and real voice and their future assessed by a process with integrity and transparency, a process not conducted in the courts but possibly along the lines of the Family Group Conferencing program in NSW.

Suppression does not protect the innocent and those who defend them. It protects the guilty.

Ariel Marguin is the Chair of Justice for Children Australia.

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