Adair & Adair - [2021] FedCFamC2F 333

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adair & Adair [2021] FedCFamC2F 333

File number(s): NCC 749 of 2021

Judgment of: JUDGE BETTS

Date of judgment: 27 October 2021

Catchwords: FAMILY LAW – Property settlement proceedings finalised – husband applies now for Court’s leave to publish affidavits to defended some pending criminal charges against him in the Local Court in which the wife is the alleged victim – wife says husband can publish affidavits as of right and did not need to bring this application – argument as to the operation of section 121 of the Family Law Act – argument as to the operation of the implied undertaking in Rule 6.04 of the FCFCOA Rules 2021.

Legislation:
Family Law Act1975

Federal Circuit and Family Court of Australia Rules 2021

Federal Circuit Court Rules 2001

Cases cited:
Australian Trade Commission v McMahon (1997) 73 FCR 211

Crawford & Timms [2020] NSWSC 380

Esso Australia Resources Limited v Plowman (1995) 183 CLR 10

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne & Street [2008] HCA 36

Liberty Funding Pty Ltd -v- Phoneix Capital Lid (2005) 218 ALR 283

Springfield Nominees Pty Ltd v Bridge Lands Securities Pty Ltd (1992) 38F FCR 217

Division: Division 2 Family Law

Number of paragraphs: 47

Date of last submission/s: 27 October 2021

Date of hearing: 27 October 2021

Place: Newcastle

Counsel for the Applicant: Ms Court

Solicitor for the Applicant: Joplin Lawyers

Counsel for the Respondent: Ms Mahony

Solicitor for the Respondent: Unified Lawyers
ORDERS

NCC 749 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ADAIR

Applicant

AND:
MS ADAIR

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

27 OCTOBER 2021

THE COURT ORDERS THAT:
1.Leave is granted to the Respondent Wife to rely upon the Response to the Application in a Case and Affidavit of the Wife filed 26 October 2021 notwithstanding they were filed out of time.
2.Pursuant to Rule 6.04 of the Federal Circuit and Family Court of Australia Rules 2021 the Affidavit of the Applicant Husband filed 10 March 2021 and the Affidavit of the Respondent Wife filed 21 April 2021 may be published in the Husband’s Local Court criminal proceedings (2020/00369683 & 2020/00369638).
3.The Husband’s costs application in respect of the Application in a Case is listed for hearing at 2.15pm on 16 December 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Adair & Adair [2021] FedCFamC2F 333
Case: [2021] FedCFamC2F 333
Decision Date: 27 October 2021

CaseChat Overview and Summary

The applicant, Mr Adair, applied for leave to publish affidavits from his property settlement proceedings in order to defend some pending criminal charges against him in the Local Court. The respondent, Ms Adair, argued that the husband did not need to bring this application as she believed he could publish the affidavits as of right. The central issue for the court was the operation of section 121 of the Family Law Act 1975 (Cth) and the implied undertaking in Rule 6.04 of the Federal Circuit and Family Court of Australia Rules 2021. The court needed to determine whether the husband was entitled to publish the affidavits in the criminal proceedings without contravening the law.

The court found that section 121 of the Family Law Act 1975 (Cth) makes it an offence to publish family law proceedings that identify persons, associated persons, or witnesses involved, except in very limited circumstances. However, Rule 6.04 of the FCFCOA Rules 2021 provides that parties may publish proceedings with the implied undertaking that they will not identify any person involved in the proceedings. The court held that the husband could publish the affidavits in the criminal proceedings as long as he adhered to the implied undertaking in Rule 6.04.

The court granted leave for the respondent to rely upon her response to the application filed out of time and allowed the publication of the affidavits in the criminal proceedings, subject to the implied undertaking. The court also listed the husband's costs application for hearing on a future date. The final orders of the court allowed the publication of the affidavits in the criminal proceedings, provided the implied undertaking was observed, and listed the husband's costs application for hearing on a future date.

Orders

Orders of the court

NCC 749 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ADAIR

Applicant

AND:

MS ADAIR

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

27 OCTOBER 2021

THE COURT ORDERS THAT:

1. Leave is granted to the Respondent Wife to rely upon the Response to the Application in a Case and Affidavit of the Wife filed 26 October 2021 notwithstanding they were filed out of time.

2. Pursuant to Rule 6.04 of the Federal Circuit and Family Court of Australia Rules 2021 the Affidavit of the Applicant Husband filed 10 March 2021 and the Affidavit of the Respondent Wife filed 21 April 2021 may be published in the Husband’s Local Court criminal proceedings (2020/00369683 & 2020/00369638).

3. The Husband’s costs application in respect of the Application in a Case is listed for hearing at 2.15pm on 16 December 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NCC 749 of 2021
Judgment of:	JUDGE BETTS
Date of judgment:	27 October 2021
Catchwords:	FAMILY LAW – Property settlement proceedings finalised – husband applies now for Court’s leave to publish affidavits to defended some pending criminal charges against him in the Local Court in which the wife is the alleged victim – wife says husband can publish affidavits as of right and did not need to bring this application – argument as to the operation of section 121 of the Family Law Act – argument as to the operation of the implied undertaking in Rule 6.04 of the FCFCOA Rules 2021.
Legislation:	Family Law Act1975 Federal Circuit and Family Court of Australia Rules 2021 Federal Circuit Court Rules 2001
Cases cited:	Australian Trade Commission v McMahon (1997) 73 FCR 211 Crawford & Timms [2020] NSWSC 380 Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne & Street [2008] HCA 36 Liberty Funding Pty Ltd -v- Phoneix Capital Lid (2005) 218 ALR 283 Springfield Nominees Pty Ltd v Bridge Lands Securities Pty Ltd (1992) 38F FCR 217
Division:	Division 2 Family Law
Number of paragraphs:	47
Date of last submission/s:	27 October 2021
Date of hearing:	27 October 2021
Place:	Newcastle
Counsel for the Applicant:	Ms Court
Solicitor for the Applicant:	Joplin Lawyers
Counsel for the Respondent:	Ms Mahony
Solicitor for the Respondent:	Unified Lawyers

NCC 749 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ADAIR Applicant
AND:	MS ADAIR Respondent

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	27 OCTOBER 2021