Family law cases are held in-camera. This means they are held in private. However, the Courts Bill 2013 has been published and this bill aims to relax the rule. It will allow for greater coverage of family law proceedings.

The change will essentially allow for court reporters to publish accounts of family law proceedings, including applications for domestic violence orders although judges will retain the power to exclude the press in certain circumstances. Interestingly, a judge will have the power to exclude the press from hearing evidence which may contain commercially sensitive information. This provision is likely to be relied on in many family law cases. The aim is to increase public confidence in the judicial system by partially removing the blanket which ordinarily hangs over family law cases.

Interestingly, the Bill does not close off the ambiguity whereby breach prosecutions can be fully reported. For example, if a domestic violence order is breached and a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. To me this is an unacceptable position given that family law cases are meant to be ‘in-camera.’ I have gained a great experience in family law given that I trained with the Legal Aid Board where the majority of their cases relate to family law.

It is disappointing that the Department of Justice didn’t take this opportunity with the Courts Bill 2013 to close off the ambiguity. Yet, they might still do so via a Criminal Law (Miscellaneous Provisions) Bill but I do not see why it could not be included in the Courts Bill. I assume that breach prosecutions will be made subject to the new rules in the Courts Bill, so that the press can attend hearings and publish reports so long as they do not identify the parties. Nevertheless, it is hoped that the restriction on reports of breach prosecutions will be introduced soon.

What I also find interesting about the Courts Bill 2013 is that it allows for “bona fide representatives of the Press” to attend such proceedings. Yet, this term is not defined in the Bill, so it will be a matter for a judge in any given case to determine whether a person is such a bona fide journalist. Of course, the Minister may make regulations to aid such a determination.

This right of access is subject to a wide-ranging discretion on the part of the judge hence some people may feel the lifting of the blanket on ‘in-camera’ cases has not gone far enough. I had a discussion recently with a legal colleague where he feels disappointed by the bill. He feels it doesn’t go far enough. He is disappointed that the opportunity was not taken to go further and provide a power permitting the broadcast of (certain) proceedings, in due course.

Interesting times lies ahead for family law cases.

Mar 25, 13