FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Company B & Saddler [2023] FedCFamC2F 114
File number: SYC 4723 of 2022 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – application pursuant to s 121(9)(g) and s 121(9)(d) of the Family Law Act 1975 (Cth) – applicant seeking orders permitting publication of accounts of family law proceedings which identify the first and second respondents as expert witnesses – respondents seek summary dismissal – Court has no jurisdiction – where there is no ‘justiciable controversy’ – application summarily dismissed Legislation: Australian Constitution s 71
Family Law Act 1975 (Cth) ss 4, 39(1), 39A, 39B, 69H, 111CD, 121(1), 121(9), 121(9)(d), 121(9)(g),121(11)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 134
Judiciary Act 1903 (Cth) s 39B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09(1)(a), 10.09(1)(d)
Cases cited: A Bank v Coleiro (2011) 252 FLR 359; [2011] FamCAFC 157
AH & SS (2005) 194 FLR 111; [2005] FamCA 854
Attorney-General v Observer Limited [1990] 1 AC 109
Company B v Public Trustee
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314
Commissioner of Taxation v Darling (2014) 285 FLR 428; [2014] FamCAFC 59
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36
Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214; [2022] HCA 5
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
In the Marriage of Lowe (1995) FLC 92-592; [1995] FamCA 19
Nationwide News Pty Ltd and Menaglio [2019] FCWA 266
Newett & Newett [2021] FedCFamC1F 11
Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24
Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5
Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881
Re W (Public Application) (1997) FLC 92-756; [1997] FamCA 8
Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495; [1976] HCA 23;
Seven Network (Operations) Ltd v Cockman [2018] FCWA 108
Stativa & Stativa [2015] FamCAFC 170
Western Australia Newspapers Ltd v Cuzens [2016] FCWA 6
Leeming, Mark, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd edition, 2020)
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 11 November 2022 Place: Sydney Counsel for the Applicant: Mr Sibtain SC with Mr Senior Solicitor for the Applicant: D Legal Counsel for the First Respondent: Mr Brennan SC with Ms McKenzie Solicitor for the First Respondent: SBA Lawyers Counsel for the Second Respondent: Mr Olson Solicitor for the Second Respondent: Barry Nilsson Lawyers ORDERS
SYC 4723 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SADDLER
First Applicant
MS HANSON
Second ApplicantAND: COMPANY B
Respondentorder made by: CHIEF JUDGE ALSTERGREN DATE OF ORDER: 10 February 2023 THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 26 August…
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- Company B & Saddler [2023] FedCFamC2F 114
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- [2023] FedCFamC2F 114
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CaseChat Overview and Summary
The Court held that no source of jurisdiction could be identified in the legislation that would confer upon it the power to grant the relief sought. The applicant had failed to identify any particular proceedings in which they sought to publish accounts, or provide a draft account. The Court was unable to determine whether any such accounts were ‘fair and accurate’. Furthermore, the Court held that there was no justiciable controversy capable of being resolved. The controversy that the applicant submitted was that the respondents oppose the Application. However, the Court held that without specificity, there was no controversy arising from this Application that was justiciable or capable of being resolved in the exercise of judicial power by the Court.
Ultimately, the Court dismissed the application on the basis that there was no source of jurisdiction that could be identified and no justiciable controversy capable of being determined. The Court held that the proceeding would be dismissed. The question of costs was adjourned to a hearing for further oral submissions.
This case highlights the importance of balancing the principle of open justice with the need for confidentiality and protection of parties and witnesses in family law proceedings. It also demonstrates the need for specificity and clarity in applications seeking leave to publish accounts of proceedings.
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