Closed Courts: The Quiet Weapon Nobody Warns You About

(A real case study, anonymised. A practical guide for respondents.)

Most people assume family-violence hearings are conducted like any other civil matter — in front of the public, with transparency, accountability, and scrutiny.

But respondents quickly discover something different:

your ex-partner’s lawyer will very often try to shut the courtroom.

And if you don’t know your rights, you may find yourself facing the State’s coercive power alone, without the support or witnesses you are entitled to.

This isn’t a one-off trick.

It happens every day across Australia.

This is the story of how one man, “A.J.”, handled it — and how you can too.

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What Happens When a Lawyer Says: “My Client Feels Uncomfortable”?

During one of A.J.’s hearings, after weeks of hints about “police investigations” that turned out not to exist, the applicant’s barrister made a surprising claim:

“My client is uncomfortable with this being discussed in open court.”

He didn’t identify a legal basis.

He didn’t point to a rule.

He simply suggested—softly—that the court should shut the doors.

If A.J. hadn’t known better, his support person would have been asked to leave, the courtroom sealed, and the applicant’s evidence would have been taken without civilian witnesses.

This is how it happens in real life.

Not through dramatic national-security claims.

Not through high-stakes criminal prosecutions.

But through a quiet, polite sentence disguised as concern.

In other words:

If you don’t object immediately and clearly, you lose the presumption of openness.

And once the door closes, the imbalance becomes absolute.

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Why Do Applicants Try This?

Because closed courts:

• prevent your friends/support person from witnessing the conduct

• prevent journalists or observers from noticing inconsistency

• prevent anyone from hearing when their evidence collapses

• remove transparency around misrepresentations

• insulate the applicant from scrutiny

• place you — the respondent — in total isolation

In A.J.’s case, the move came moments after his ex-partner’s barrister realised their evidence had completely collapsed:

• no timeline filed

• no dates

• no incidents

• no police investigation

• no capacity to cross-examine

• no ability to answer the court’s basic questions

A closed court protects the weaker case.

And everyone in the system knows it.

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But Is This Even Legal?

Yes — but only under extremely narrow circumstances.

Australian courts operate under Chapter III of the Constitution, which protects:

• the independence of the judiciary

• the “essential characteristics” of judicial power

• and open justice as a core constitutional requirement.

Put simply:

Open justice is not optional.

It is constitutionally required unless strict legal criteria are met.

Courts can close hearings — but only when absolutely necessary:

• national security

• child witness safety in criminal matters

• specific statutory exclusions

• clear evidence of real harm

None of which apply to the vast majority of family-violence interim hearings, which are fundamentally civil disputes between private parties.

Security of convenience, emotional discomfort, embarrassment, or strategic preference do not meet the test.

And the courts know this.

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The Collaery Precedent: Secrecy Is the Exception, Not the Rule

In 2021, the ACT Court of Appeal issued a landmark decision in the Collaery prosecution — a national-security case.

It overturned secrecy orders and warned:

Excessive secrecy risks undermining public confidence in the courts.

If a court dealing with classified intelligence can still require openness, imagine how little justification exists for closing a civil hearing between two former partners arguing about texts, finances, or post-relationship grievances.

The comparison is devastating.

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How to Respond When Your Ex’s Lawyers Try This Trick

It happens suddenly.

It happens quietly.

It happens when you least expect it.

And the tactic is always the same:

“My client feels uncomfortable with this being discussed in open court.”

Here’s what you say next — clearly, calmly, and without apology:

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ORAL SUBMISSION – Open Courtroom (Copy/Paste This)

Your Honour, I oppose any application to close the Court.

The key point is this: open justice is not merely a convention — it is an essential attribute of judicial power under Chapter III of the Constitution.

The authorities are clear: any departure from openness must be strictly necessary and strictly justified. Personal discomfort, embarrassment, or strategic concerns of a party are not recognised exceptions.

I also draw Your Honour’s attention to the ACT Court of Appeal’s decision in the Collaery litigation, which warned that excessive secrecy risks undermining public confidence in the administration of justice.

Even in national-security proceedings, the law requires the Court to choose the least restrictive option and retain public visibility wherever possible.

There is nothing in this matter that comes close to the narrow categories justifying closure. These are factual disputes between private parties. The integrity of these proceedings is protected by transparency, not secrecy.

Unless Your Honour has any questions, those are my submissions.

If it assists, I can refer to the peer-reviewed paper:

“Open Justice, Closed Courts and the Constitution: Australian and Comparative Perspectives” (University of Queensland Law Journal).

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Why This Matters for Family Law Reform

Closed courts, when misused, don’t protect victims.

They protect weak cases.

When a respondent cannot bring a friend, support person, or witness, the power imbalance becomes overwhelming.

Transparency is the great equaliser.

The truth does not fear sunlight.

And sunlight is exactly what the system has been lacking.

Australia does not need to abolish FVOs.

It needs to enforce due process, evidentiary standards, and open justice.

Because when hearings are open, something remarkable happens:

Bad cases collapse.

Good cases stand.

And justice — real justice — becomes visible again.

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What If the Magistrate Closes the Court Anyway?

If, despite your objection, the Magistrate orders the courtroom closed, don’t argue, don’t protest, and don’t give them anything to use against you. Simply say:

“Thank you, Your Honour,”

and proceed with the hearing.

Because from that moment on, you are no longer just defending your case — the court has given you a constitutionalissue. A closed courtroom without clear, strictly necessary justification is a direct departure from the open-justice requirement that sits at the heart of Chapter III of the Australian Constitution.

If you lose, that procedural irregularity becomes a powerful appellate ground. It can take you from the Magistrates Court → to the Supreme Court → to the Court of Appeal → and, if necessary, all the way to the High Court of Australia, where open justice is treated as a defining characteristic of judicial power.

In other words:

If they close the court without lawful basis, they have given you a gift — grounds for appeal at the highest level.