Publishing Family Court judgments: problems and

solutions
LYN NEWLANDS*
Abstract
Why does the Family Court publish its judgments in anonymised form? What are the
practical options for anonymisation? How are pseudonyms allocated? How does the
Court ensure that judgments are sufficiently anonymised to avoid identification of
parties and their children without impacting on the integrity of the Judges reasons?
How does the Court balance the competing needs for public access and parties privacy?
This paper provides an overview of judgment anonymisation and publication by the
Family Court, and examines some of the associated problems.

Introduction

The Family Court of Australia is a superior court of record, tasked to assist

Australians to resolve their most complex legal family disputes. As a matter
of interest, it is not a closed Court and anyone is able to observe its
hearings; only rarely are hearings held in camera. Judgments should ideally
be made widely available to promote access to justice for precedent and
public information purposes. This is particularly important, given that up to
22 per cent of litigants in the Court are self-represented at some stage during
the course of their matter.
Historically, until 2007, limited numbers of judgments were published online
based solely on their precedential value. This had the effect of severely
limiting the amount of publicly available family law case law and promoted
the perception of the Court as a secretive organisation, exempt from public
scrutiny. It also meant that first instance judgments, which provide a
window into the conduct of proceedings and contribute to transparency,
were inaccessible to the wider community.
In preparing family law decisions for publication extra resourcing, over and
above that required in other jurisdictions to undertake the same task, must
be provided to anonymise them. Anonymisation is the deceptively simple
task of removal and/or replacement of any identifying information in the
judgment whether that information is factual or contextual.

Judgments Publication Coordinator, Family Court of Australia. This article is

professional, non-peer-reviewed expert commentary.

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Family Law Act 1975 (Cth) s 121 Restriction on publication

of court proceedings

Under the Act, publication by any means of information that would identify
parties and witnesses is a criminal offence. Section 121(1) reads:
A person who publishes in a newspaper or periodical publication, by
radio broadcast or television or by other electronic means, or
otherwise disseminates to the public or to a section of the public by
any means, any account of any proceedings, or of any part of any
proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party
to the proceedings or is, or is alleged to be, in any other way
concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment
for a period not exceeding one year.
Fortunately, s 121(3)(a) provides an effective starting point for
anonymisation. It lists the sort of particulars that should be taken to be
identifying:
(3) Without limiting the generality of subsection (1), an account of
proceedings, or of any part of proceedings, referred to in that
subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides
or works, or the locality in which any such premises are situated;
(iii)

the physical description or the style of dress of the

person;
(iv) any employment or occupation engaged in, profession
practised or calling pursued, by the person or any official or
honorary position held by the person;
(v) the relationship of the person to identified relatives of the
person or the association of the person with identified friends or

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identified business, official or professional acquaintances of the
person;
(vi) the recreational interests, or the political, philosophical
or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has
an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a
member of the public, or to a member of the section of the public to
which the account is disseminated, as the case requires;
This list is obviously not exhaustive and comprises largely factual
information. Online publication of judgments increases the complexity of
anonymisation because the use of search engines such as Google (depending
on the expertise of the user) makes joining the dots to identify
parties/children much easier than in the old days of print and paper.

Family Court publication policy post-2007

In 2007, the Chief Justice introduced a new judgments publication policy

whereby almost all of the Family Courts judgments would be published on
AustLII, including both substantive and interim judgments at first instance
and on appeal. To give an idea of the scope of that change of policy, prior to
2007 approximately 200250 judgments were published annually; since 2007,
that figure has increased to around 1500 fully-anonymised judgments
published per annum.
The Judgments Publication Office (JPO) was created to develop, manage
and undertake the publication process. Under the guidance of senior judicial
officers, a standard judgments template, judgments production style guide,
anonymisation guidelines and a family law specific catchwords list were
developed and implemented.
The JPO, with a permanent staff of two supplemented with occasional
contract assistance, depending on workload requirements, carries out the
anonymisation and publication of judgments. Exception to the publication
policy may be made where a suppression or non-publication order is made
by the Judge in which case, the JPO must be notified to avoid accidental
publication. Such orders are relatively rarely made.

Anonymisation principles

When anonymising judgments, three principles need to be borne in mind

privacy of the parties and children; integrity of the Judges reasons; and

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ensuring the finished product is intelligible. These principles may at times
conflict with each other, requiring a delicate balancing act to achieve
effective anonymisation of the judgment at hand.

Anonymisation which option?

The general practice of the Family Court has been to use generic language in
judgment writing. In family law judgments, using terms such as the
mother, the father, the child, the paternal grandparents etc, or legal
classifications (for example, applicant, respondent), can actually be more
easily read and understood than the use of names ad infinitum, particularly
if the matter involves a large extended family with intergenerational namesharing. Writing in generic language has the additional benefit of minimising
the amount of anonymisation required to make the judgment publishable.
For courts undertaking routine anonymisation of judgments, there are two
options from which to choose.
Partially automated anonymisation uses software
replace pre-defined words from text. This process
subsequent quality control check to identify and
anonymisation required. This is the option chosen
Court of Australia

designed to find and

is supplemented by a
undertake any further
by the Federal Circuit

Manual anonymisation is a traditional word by word, line by line editing

process where individual words and phrases are substituted by less
identifiable terms/phrases, for example, an electrician might become
skilled tradesman. As an incidental consequence of the anonymisation
process, the judgments officer undertakes an informal proof reading role
whereby minor punctuation, grammatical and/or formatting errors may be
corrected, and more serious problems referred back to chambers for
resolution, prior to external publication of the judgment. This is the option
selected by the Family Court of Australia.

Why use pseudonyms?

Prior to 2007, sensitive Family Court judgments were usually anonymised by

the use of the first letter of the parties surnames or their initials place of
names. With the increased publication, that practice fell out of favour
within 1500 judgments per annum there could potentially be a hundred or
more B & B [2015] FamCA , most of which would be unrelated matters.
The decision to replace party names with pseudonyms was taken for several
reasons:

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It is easier for litigants and lawyers to remember actual names rather

than letters/initials for citations.

It is an effective way to protect the parties privacy.

It enables the media to report on family law cases without risk of

breaching s 121.
1

Pseudonyms are allocated to the matter, rather than the individual

decision, which enables the reader to track back across multiple
decisions in the same matter.

Factors to consider when allocating a pseudonym

Publication of its judgments provides a window into the client base and
operation of a court. To facilitate that transparency for the Family Court it is
desirable the pseudonym that is allocated to a matter is as akin to reality as is
possible within the constraints of s 121.
2

This is achieved by using pseudonyms that:

Begin with same letter as the partys actual name.

Be ethnically appropriate.

Be culturally sensitive.

Be respectful to the parties.

Be phonetically dissimilar to the partys actual name.

Anonymisation how to anonymise a Family Court judgment

The documents Advanced Properties fields are checked and any personal
metadata about judges and staff is removed. The Microsoft Word user profile
for JPO staff is set up so that all documents are saved as Family Court of
Australia.
The first step in anonymisation of a judgment is the identification of an
existing pseudonym or the allocation of the pseudonym if a new matter.

Family Law Act 1975 (Cth) s 121.

Ibid.

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Only parties identified on the cover sheet of the judgment as applicant(s) and
respondent(s) are given a pseudonym, all other names used in the judgment
are anonymised by letters or generic terminology.
As each letter used stands in place of a word, it is important that the same
letter should not be used for different words. Of necessity, particularly when
anonymising complex judgments, there may be times where this can only be
achieved by using combinations of letters.
Government agencies and large business entities do not usually require
anonymisation, unless it is apparent that failure to do so would lead to the
identification of a party or witness. For example, the fact that the parties hold
accounts with the Commonwealth Bank would not be identifying unless
account numbers were included.
Private business entities and smaller companies with which the parties have
some involvement are anonymised where possible using generic language.
However, in complex property matters, for example, it will often be
necessary to replace company names with letters. In that case it is important
to ensure that only the name of the company is edited and that the
appropriate indicator of the business type (Pty Ltd, Limited, PLC, LLC, etc.)
is retained.
Significant dates which are likely to be in the public domain, such as dates of birth,
marriage and death, should be reduced to the year only where possible, or
month and year if necessary. It is not usually necessary to anonymise dates
of separation, court-related dates, dates of personal conflicts, etc.
Geographical information such as residential and business addresses can be
anonymised using such terms as the former matrimonial home, the rural
property, overseas. Again, particularly in more complex decisions, it may
be necessary to use letters combined with contextual descriptors. In this era
of global business and internet romance, it is important to note that the
anonymisation of overseas countries is very much dependent on context
for example, the requesting country in a Hague Convention judgment about
international child abduction is not anonymised, given that the decision
relates to international jurisdictional issues.
Unique numerical identifiers (vehicle registration, credit card number, phone
number, property folio number, ABN numbers etc) are highly identifiable
online, and should always be either replaced by an ellipsis, or an ellipsis and
the last digit(s) of the number.
Other identifying details (occupation, sports clubs, religion, volunteering,
politics, recreational pursuits etc) are anonymised as required using generic
descriptions or letters.

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Quotes from other proceedings involving the same parties, including from
proceedings in other jurisdictions, are anonymised, with any changes
enclosed in square brackets. Particular care needs to be taken where quotes
are from other jurisdictions it may not be possible to anonymise such
quotes sufficiently to prevent identification by a skilled internet searcher. In
that case, permission may be sought from the judge to omit part or all of the
quoted text with an appropriate notation (for example, Sentencing reasons
omitted to comply with Family Law Act 1975 (Cth) s 121).

Recognising and anonymising contextual information risks

Contextual information in the form of apparently innocuous facts that in and

of themselves would not be identifying but that can, in combination with
each other, become identifying, may be difficult to recognise when
anonymising judgments. This problem is compounded by the power of
internet search engines to crawl across diverse unrelated websites and
harvest relevant information.
Contextual information challenges may arise simply out of the use of
language that is specific to a particular occupation or circumstance. For
example, there is no point anonymising an occupation related to the military
where one party has been dismissed from the service, without then
anonymising the term dishonourable discharge.
A further challenge is faced where there is media coverage, unrelated to the
family law proceedings, which enables the astute online searcher (be he/she
media reporter, extended family member, childs school friend, or local
neighbourhood gossip) to identify the parties and their children. One
example will suffice an interlocutory judgment was published by the
Family Court wherein one of the parties was an international sportsman who
was the recipient of some lucrative sponsorship deals. The Judge was
contemplating how sponsorship deals should be dealt with in the context of
property settlement and that piece of information could not be anonymised
without impacting on the integrity of the reasons. Unfortunately,
sportsman and sponsorship were sufficient for a well-known media outlet
to generate stories about the case which, while they complied with the letter
of the law by not actually naming them, provided sufficient detail for their
readership to identify the parties.
The onus of recognising and resolving contextual information risk lies with
the judgments officer undertaking the anonymisation. Recognition is
facilitated by maintaining awareness of diverse current events and the
application of lateral thinking. Resolution may involve editing the
information to make it less identifiable, or it may involve discussions with
the relevant judicial officer to negotiate a solution.

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10 Anonymisation keys
Consistent anonymisation promotes the ability to read multiple judgments in
the same matter without having to constantly revise whos who and whats
what, thus making the judgments more user friendly and accessible for
research purposes.
To facilitate consistent anonymisation, the JPO compiles and maintains
running sheets (aka anonymisation keys) to record words and phrases that
are edited in the course of anonymisation. Essentially each key is a Microsoft
Word document containing a two-column table, linking changes made from
the original to the anonymised version. The keys are stored on a shared
drive, making them accessible to all JPO staff and can be provided to other
Court staff on request.
The keys ensure anonymisation is applied consistently throughout the life of
a matter, regardless of the number of judgments delivered in that matter.
Once the key is created, it can be added to as necessary when later
judgments in that matter are anonymised.

11 Transparency public access v parties and childrens privacy

The internet is a powerful platform for courts to publish their judgments,
providing access and transparency in decision-making to the profession and
the wider community. For courts with family law jurisdiction, however, the
internet brings with it some unique challenges.
Jigsaw identification is the identification of a person, achieved by
combining two or more pieces of information (for example, a partys
occupation and his/her conviction of a criminal offence) from two or more
sources (for example, a judgment and a Google search). It poses a particular
problem where either or both of the parties have been involved in activities
that have resulted in them acquiring a high level media profile. That profile
may result from involvement in criminal proceedings but may equally arise
from involvement in philanthropy, high society, elite sports, or any other
circumstance that leads to media reporting.
3

Use of social media such as Facebook or Twitter, either deliberately (as a

means of disparaging the other party) or inadvertently (recording personal
news and events), can also put highly identifiable personal information in
the public domain in a way that was not previously possible. And it is not

H v A (No 2) [2015] EWHC 2630 (Fam).

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unknown for an unhappy litigant to seek validation by creating a personal
website to vent their dissatisfaction. Such online activity can render
successful anonymisation of judgments extremely difficult, especially where
reference to that activity itself features within the judgment.
In the family law online environment the demand for public access to
judgments competes with the statutory requirement for privacy. In the
anonymisation process, securing the parties privacy vies with the need to
maintain the integrity of the reasonsif anonymising the judgment
sufficiently to prevent identification undermines or destroys the integrity of
the judicial officers reasons, then publication is a futile exercise.
In applying an approach of must retain if ratio, may omit if obiter, it is
essential that JPO staff are able to recognise when anonymisation threatens
to encroach on the integrity of the reasons, at which stage the judicial officer
will need to be informed/consulted. In that situation, the Judge will decide
whether or not the offending information can be properly omitted.

12 Conclusion
Since 2007 the Family Court of Australia has endeavoured to publish as
many of its judgments as possible. It has provided the extra resources
required to enable it to do so in compliance with the requirements of s 121 of
the Act. When unforeseen problems have arisen, they have been recognised
and resolved. The learning thus acquired has added to the knowledge base
of the JPO and is applied constantly in the complex and challenging exercise
of anonymisation.
Online publication of its judgments enables the Family Court to make them
widely accessible to the public and the profession, and logically extends the
transparency inherent in its operation as an open court. At the same time,
parties can be reassured that the Court makes every effort to protect their
privacy. Many problems have been addressed since 2007 but, given the
constantly evolving online environment, I am sure there will always be
more!