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Company B & Saddler

Company B & Saddler

Case [2023] FedCFamC2F 114 10 February 2023

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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, 2^nd 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 Applicant

AND:
COMPANY B
Respondent

order made by: CHIEF JUDGE ALSTERGREN

DATE OF ORDER: 10 February 2023

THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 26 August…

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.

Continue reading Company B & Saddler

Details

AGLC: Company B & Saddler [2023] FedCFamC2F 114
Case: [2023] FedCFamC2F 114
Decision Date

CaseChat Overview and Summary

The applicant, Company B, sought leave to publish investigative reports relating to the use of Family Report writers as expert witnesses in family law proceedings in Australia. These reports were intended to critically examine the qualifications, experience, methodology and practices of certain Family Report writers, as well as the manner in which these reports are used by the Court. The first and second respondents, Mr Saddler and Ms Hanson respectively, sought summary dismissal of the application on the basis that the Court lacked jurisdiction to grant the relief sought. The central legal issues before the Court were whether the Court possessed subject matter jurisdiction to grant the relief sought, and whether a justiciable controversy existed.

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.

Orders