KEY POINTS:
When the Weekend Herald revisited two Family Court cases we covered a year ago, the aim was to find out more about Family Court processes - especially in relation to criticism that court matters take too long to resolve and that children suffer because of the delays.
But
although new rules came into effect in July 2005, allowing journalists to report on Care of Children Act cases, it was unclear how those rules would apply to a follow-up story that didn't involve sitting in on a court case. Family Court lawyers spoken to were uncertain too.
Principal Family Court Judge Peter Boshier provided some guidelines.
"It is clear that under the Care of Children Act you are able to report on proceedings and I think that the term 'proceedings' ought to be interpreted broadly ... I do not think that you are merely limited to sitting in the courtroom and reporting on what transpires there.
"You are reasonably able to look at the whole of the case, look at the court file and see what has happened subsequently. It all comes within the broad definition of 'proceedings'."
That seemed like music to a journalist's ears. But while the principle of open justice (justice must be seen to done) appears straightforward, its practice is always convoluted.
When the Weekend Herald applied to the North Shore Family Court for access to the court file on a case covered in late 2005, deputy registrar Bruce Archer was helpful - granting access to the case's applications, affidavits and decisions, but not to a Section 133 psychologist's report, a pivotal aspect of the case.
Archer explained that he had to consider whether I had a proper interest to the proceedings - something he found I had, given my past reporting of the case. But under Rule 428(b) of Family Court Rules 2002, Archer also has discretion to restrict access if he feels there is a special reason to do so.
In this instance he felt there was, saying, "I recognise that this may open the door to criticism in that Mr Barton may not have the full picture upon which he can provide a fair and balanced article, but in my view the right of the public to know is outweighed by the need to protect the children at this sensitive stage of the proceedings."
Which begs the question: What harm would come to the children if the information in the psychologist's report were made public?
Under Family Court rules, children are already protected by the requirement that there can be no naming, or reporting details that might identify the children, parents, support people, speakers on cultural issues, or any witnesses involved.
Under the cloak of anonymity, what harm would then occur in knowing about a type of emotional abuse, or what effect a parent's behaviour might be having on a child?
It's acknowledged that those who know the family might be able - despite the no-naming requirement - to figure out the parties in the case. But even if a few do make the connections that's not the same as publicly identifying someone. But it raises the question of privacy.
Reporting on a Family Court case is different from reporting criminal or civil proceedings. This is a forum where the dirty washing of relationships is aired.
Children are not present. But a journalist in the court feels very much an intruder on private matters which is why many would argue that what goes on there should stay secret. But knowing more about that process - through the examples of a few cases to show how the law intervenes when parents can't agree - is surely preferable.
