Balancing Justice and Protection: When a Mother's Right to Appeal Meets Public Interest Immunity

📝 Introduction

In Salmani & Hasan [2021] FedCFamC1F 29, the Federal Circuit and Family Court of Australia faced a complex dilemma involving family law, public interest immunity, and the right to procedural fairness. At the heart of the matter was a mother's attempt to access confidential court reasoning to support her potential appeal, balanced against the imperative to protect sensitive information deemed critical by the NSW Crime Commission. This case illuminates how the court carefully calibrates competing interests—open justice and public safety.

📚 Facts and Issues

Facts:

• The matter stems from parenting proceedings between Ms. Salmani (the mother) and Mr. Hasan (the father).
• In a prior judgment (Salmani & Hasan [2021] FamCA 623), Justice Harper upheld a claim by the NSW Crime Commission for public interest immunity over parts of a psychologist’s report.
• This led to a Confidential Annexure that included the Judge's detailed reasoning, restricted to legal representatives and not disclosed to the mother.
• The mother sought a variation to this restriction to allow her legal team to discuss the confidential contents for preparing an affidavit and potentially appealing the primary decision.
• The Independent Children’s Lawyer (ICL), who has access to the annexure, did not oppose the application, nor did the NSW Crime Commission.

Legal Issue:

• Should the court vary its interlocutory order (Order 6) to permit the mother full or partial access to the confidential annexure in the interests of procedural fairness and preparation of her case?

⚖️ IRAC Analysis

Issue:

Whether the mother's right to procedural fairness and appeal preparation justifies a variation of Order 6 to allow disclosure of confidential material, despite a legitimate claim of public interest immunity.

Rule:

Under Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, interlocutory orders may be varied. A claim of public interest immunity, recognized in law, prevents disclosure of material that would be injurious to the public interest (including safety or administration of justice). Procedural fairness and open justice must be weighed against such immunity (see Salmani & Hasan (No. 2) [2021] FamCA 623).

Application:

• Justice Harper acknowledged the mother's difficult position and desire to receive fair legal advice.
• However, full disclosure was denied due to:
• The real risk of harm to the child (as outlined in the primary judgment).
• Potential compromise to NSW Crime Commission procedures.
• The adequacy of the ICL to protect the child’s interests, mitigating the need for the mother to review the annexure herself.
• A compromise was reached: the mother’s legal representatives were permitted to form an opinion and advise her on potential appeal grounds and prospects without disclosing the content of the annexure (para [18]).

Conclusion:

The Court allowed a minor variation of Order 6 to permit legal advice about appeal prospects without revealing confidential content, balancing procedural fairness with public interest concerns.

🧠 Judicial Reasoning

Justice Harper’s decision hinged on public interest immunity, prioritizing the best interests of the child and integrity of law enforcement processes over the mother's request for full access. The judge reasoned that:

• Open justice must yield when disclosure risks harm or undermines public institutions (paras [3], [13]).
• The mother could prepare her case without access to sensitive details (para [14]).
• The ICL’s role in protecting the child's interests sufficed, reducing the need for direct maternal access (para [15]).
• A limited advisory role for her lawyers struck a proportionate balance (para [17]).

The court cited the primary judgment (Salmani & Hasan (No. 2)), reinforcing that restricted disclosure was integral to upholding the immunity claim and safety concerns.

💡 Take-Home Lesson

Balancing Justice Requires Nuance: Even where procedural fairness is a fundamental right, courts may impose limits when competing public interests—like child safety and sensitive law enforcement operations—demand confidentiality. Salmani & Hasan underscores that courts can carve out narrow exceptions to balance legal rights without compromising overarching public concerns.