New Zealand Law Society - The loss of anonymity in relationship property proceedings

The loss of anonymity in relationship property proceedings

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Traditionally, fictitious names or initials have been used to anonymise the names of parties to Family Court proceedings. This meant that cases could be published setting out the legal issues, while still protecting the identities of parties in proceedings that are always intensely personal.

However, there has been a recent shift in the way that the senior courts have dealt with anonymisation in relationship property proceedings. Parties now need to be aware of the very real risk that if their case progresses beyond the Family Court, their identity may be published, and their entire relationship subject to media interest.

The rules about publication of Family Court proceedings changed in 2009 with a view to making the Family Court more open and accessible. Sections 11A to 11D of the Family Courts Act 1980 were inserted at that time, but consideration of these sections has been slow. Section 11A enables ‘accredited news media reporters’ to attend hearings. Sections 11B to C set out what can be published. There is a prohibition against publishing identifying information about children under the age of 18 without leave of the court, which means that Family Court proceedings in relation to the care of children are likely to remain anonymised.

There is also a prohibition against publishing identifying information about a ‘vulnerable person’, which is defined in s 11D, and includes, for example, a person who has applied for a protection order, or who is subject to orders under the Protection of Personal and Property Rights Act 1988. A vulnerable person is also ‘a person whom the court considers likely for any other reason to be particularly susceptible to any adverse consequences associated with the publication of a report’ (s11D(i)). To date this appears to have been interpreted narrowly. These sections are included in the Property (Relationships) Act 1976 (ss 35 and 35A), and have started to have a notable impact on the privacy parties can expect when applying to the court.

One of the first cases to consider this issue was Sanders v Sanders (2010) 28 FRNZ 205. A reporter from the NBR attended the hearing, and the husband was unsuccessful in applying to prevent publication of identifying information – his name and the address of the family home.

In Ridge v Parore [2013] NZHC 2335 the High Court allowed the publication of the parties’ personal details even though both parties requested non-publication. Both parties had a high public profile, and the order was sought to protect their minor children from the publicity that would inevitably result from the proceedings. A limited order was made preventing the publication of the children’s names, but given the parties’ names were not protected, it was a fairly pointless order.

In the recent decision of Greig v Hutchison [2016] NZCA 479 (not their real names), the Court of Appeal said there was no justification for name suppression, and criticised the lower courts for granting it “without any question”. The wife’s submission was that she never supported name suppression. The husband’s submission was that he was a ‘vulnerable person’, however the Court’s view was that he had “not demonstrated any particular susceptibility beyond the usual desire to keep private lives out of the public eye”.

The Court reluctantly granted name suppression, but only because they considered it unjust not to, given that the parties had made their application for leave to appeal to the Court of Appeal on the assumption that their anonymity would continue. The Court was very clear to state that “our granting name suppression in this case is not to be treated as a precedent”. The Court also referred to their decision Y v Attorney-General [2016] NZCA 474, which was released at the same time as the Greig decision which sets down principles to guide judges exercising the court’s inherent, discretionary jurisdiction to grant suppression in a civil proceeding.

The publication of private details is not just limited to personal information, but can extend to business details as occurred in DFT v ASR (FAM 2006-004-002652 4 August 2010, Judge Burns). This case involved the division of shares that were part of the relationship property pool. The company, BFL, applied under section 11D(i) for non-publication of any information or details concerning BFL. Judge Burns considered that allowing a company which is worth a significant sum of money to be a ‘vulnerable person’ would be too far removed from Parliament’s intention.

The only way to guarantee confidentiality is to refrain from commencing court proceedings. Those parties who cannot resolve matters themselves should be strongly cautioned that while the Family Court is typically sympathetic to name suppression applications, the senior courts are not so kind.

Jacinda Rennie is a partner in specialist Wellington family law firm McWilliam Rennie. McKenzie Cox is a law clerk at McWilliam Rennie.

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