Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020
File number(s): BRC 8029 of 2020 Judgment of: CAREW J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – whether leave is necessary to enable a party to provide a copy of a parenting order, family report and any reasons for judgment to treating health practitioners pursuant to r 6.04 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 – whether leave is necessary to provide parenting order to children’s schools, extracurricular activity provider and medical or allied health providers – consideration of s 121 of the Family Law Act 1975 (Cth) – where an affidavit or family report is found to fall within scope of r 6.04 and leave is required – where leave is not required to provide a copy of an order to the children’s schools, extracurricular activity providers or medical or allied health providers – where leave is required to provide a copy of any reasons for judgment to treating health practitioners Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Adair & Adair [2021] FedCFamC2F 333
AH v SS (2006) 34 FamLR 24
Attorney General v Wurrabadlumba (1990) 101 FLR 414
Evert & Pascal [2022] FedCFamC1F 569
Halstron & Halstron [2018] FamCA 887
Hearne v Street (2008) 235 CLR 125
In the marriage of T. and T. (1984) FLC 91-588
In the matter of P (a child) (1993) FLC 92-376
Kipling & Netis [2020] FamCAFC 79
Lietzau & Lietzau [2018] FamCAFC 167
Oscar & Traynor [2008] FamCAFC 158
R Pty Ltd atf the Fletcher Trust & Jones and Anor [2016] FamCA 928
Re W: Publication application (1997) FLC 92-756
Toric and Toric (1981) FLC 91-046
Number of paragraphs: 48 Date of last submission/s: 16 December 2022 Date of hearing: 14 December 2022 Place: Brisbane Counsel for the Applicant: Mr J. Todman Solicitor for the Applicant: Stolar Law Pty Ltd Counsel for the Respondent: Mr W. Ness Solicitor for the Respondent: Cherry Family Lawyers Counsel for the Independent Children's Lawyer: Ms M. Murphy Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDER
BRC 8029 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EARNSHAW
Applicant
AND: MR FARELLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS THAT:
1.The applicant and respondent have leave to provide a copy of the following documents:
(a)the family reports of Ms E dated 1 October 2021 and 29 November 2022; and
(b)the ex tempore reasons for judgment dated 14 December 2022;
upon request, to any medical or allied health practitioner (including a mental health practitioner or family therapist) engaged by the applicant and/or respondent to assist either themselves, or a child or the children collectively.
Note: The form of the order is subject…
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- AGLC
- Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020
- Case
- [2022] FedCFamC1F 1020
- Decision Date
CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, the case of Earnshaw & Farella (No 2) arose concerning the interpretation and application of section 121 of the Family Law Act 1975 (Cth), which prohibits the publication of material identifying parties or witnesses in family law proceedings to the public or a section of the public. The central issue before the court was whether the proposed parenting order, which included provisions for the parents to provide copies of family reports, reasons for judgment, and parenting orders to treating health practitioners and children’s schools, constituted a publication or dissemination under section 121. The court needed to determine if these provisions were permissible under the exceptions outlined in section 121(9) of the Act.
The court considered whether the dissemination of the specified documents to health practitioners and educational institutions constituted a publication within the meaning of section 121. The court referenced previous cases where similar provisions were discussed and found that providing documents to professionals for the purpose of their professional practice or to entities involved in the children's welfare did not amount to publication under section 121. The court noted that the rationale behind section 121 was to protect the privacy of parties and witnesses by preventing prurient reporting to the public. Therefore, as long as the dissemination was not to the public at large but to specific professionals or entities for legitimate purposes, it did not breach the provisions of section 121.
Ultimately, the court concluded that the proposed provisions in the parenting order did not constitute a publication under section 121, as they were intended for the professional use of health practitioners and educational institutions. The court found that the dissemination was not to the public but to specific individuals and entities for the purposes of providing care and support to the children involved in the proceedings. Therefore, the provisions were permissible under the Act.
The court decided that the inclusion of paragraphs 28 and 29 in the parenting order was not necessary and was not pressed by any party. The final parenting order did not include these provisions.
The court considered whether the dissemination of the specified documents to health practitioners and educational institutions constituted a publication within the meaning of section 121. The court referenced previous cases where similar provisions were discussed and found that providing documents to professionals for the purpose of their professional practice or to entities involved in the children's welfare did not amount to publication under section 121. The court noted that the rationale behind section 121 was to protect the privacy of parties and witnesses by preventing prurient reporting to the public. Therefore, as long as the dissemination was not to the public at large but to specific professionals or entities for legitimate purposes, it did not breach the provisions of section 121.
Ultimately, the court concluded that the proposed provisions in the parenting order did not constitute a publication under section 121, as they were intended for the professional use of health practitioners and educational institutions. The court found that the dissemination was not to the public but to specific individuals and entities for the purposes of providing care and support to the children involved in the proceedings. Therefore, the provisions were permissible under the Act.
The court decided that the inclusion of paragraphs 28 and 29 in the parenting order was not necessary and was not pressed by any party. The final parenting order did not include these provisions.
Orders
Orders of the court
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Background
Background to the litigation
A short point arises for determination concerning whether or not leave is necessary pursuant to r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) (or otherwise) to enable a party to provide a copy of a parenting order, family report and any reasons for judgment, to treating health practitioners of the parents and/or children, and whether or not leave is necessary (pursuant to r 6.04 or otherwise) to provide a copy of a parenting order to the children’s schools, extracurricular activity provider or medical or allied health providers engaged from time to time. Short background The substantive proceedings were listed for final hearing on 14 December 2022. Ms Earnshaw (“the applicant”) is the mother of four children and Mr Farella (“the respondent”) is the father. The proceedings only concerned the two youngest children, X, 16 years of age, and Y, 11 years of age. The two older children are adults. The applicant and respondent resolved their parenting dispute on the first day of trial and a final parenting order was made with short reasons for judgment delivered ex tempore indicating the Court’s satisfaction that the proposed order was in the best interests of the children in the circumstances of the case. Included in the proposed minute of order were the following provisions:28.Pursuant to s 121 of the Family Law Act 1975 (Cth), the parties shall be at liberty to provide a copy of:a. The family reports of [Ms E]; andb.Any reasons for judgment delivered in support of parenting orders; andc. These orders;To any health practitioners (including mental health practitioner) engaged by the parties to assist either themselves, or a child of the children collectively, including any family therapist.29.Pursuant to section 121 of the Family Law Act the parents are at liberty to provide a copy of these orders to any school, extracurricular activity provider, medical or allied health provider who engage with the children from time to time. When asked why liberty to provide the identified documents pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”) was necessary, counsel sought and were granted time to consider the matter. Section 121 of the Act prohibits the publication of material to the public or a section of the public that identifies a party to proceedings, any related or associated person or a witness in the proceedings. There are certain exceptions set out in s 121(9), including if the publication is to a person who is a member of a profession, in connection with the practice of that profession. Section 121 Section 121 of the Act is in the following terms:(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:(a) a party to the proceedings;(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or(c) a witness in the proceedings;commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:(a) it contains any particulars of:(i) the name, title, pseudonym or alias of the person;(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;(iii) the physical description or the style of dress of the person;(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;(b)in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or(c)in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.(4)A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.(5) An offence against this section is an indictable offence.(8)Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.(9)The preceding provisions of this section do not apply to or in relation to:(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or(aa)the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or(b)the communication of any pleading, transcript of evidence or other document to:(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or(d)the publishing of a notice or report in pursuance of the direction of a court; or(da)the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:(i) a separate volume or part of a series of law reports; or(ii) any other publication of a technical character; or(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or(ii)to a person who is a student, in connection with the studies of that person; or(g)publication of accounts of proceedings, where those accounts have been approved by the court.(10)Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.(11) In this section:court includes:(a)an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and(b)a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.electronic means includes:(a)in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Upon the proceedings resuming before me on 14 December 2022, Ms Murphy for the independent children’s lawyer briefly submitted that, on reflection, the provision of the proposed documents to the persons/organisations named was not a publication to a section of the public and in so far as publication was to a professional, then it came within the exception in any event. Ms Murphy’s submissions were adopted by counsel representing each parent. The inclusion of paragraphs 28 and 29 of the minute of order was not pressed by any party in the form set out above. Conclusion - s 121 The rationale for the prohibition in s 121 is to prevent the breach of a person’s privacy by an account of their proceedings being given to a public group. As noted by Bryant CJ in AH v SS[1], s 121 was inserted into the 1975 Act to prevent the “prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings.” [1] (2006) 34 FamLR 24 at 29. There are several elements to establishing a breach of s 121:(a)That a person publishes in a newspaper, or periodical publication, by radio broadcast or television or by other electronic means (definition of ‘electronic means’ includes in the form of data, text or images by means of guided and/or unguided electromagnetic energy – ss 121(11) e.g. email); or(b)That a person otherwise disseminates;(c)To the public or a section of the public;(d)An account of any proceedings or any part of any proceedings;(e)That identifies a party, a person related to or associated with a party, a witness in the proceedings. Very little, if any, attention has been given in the authorities to the means of the publication or dissemination sought to be prevented i.e. in a newspaper etc. or by other electronic means. However, the practical application of s 121 has been considered in a number of cases in this Court. In Toric and Toric,[2] the Full Court said in obiter that the provision of court documents to a consulate with the intention of seeking advice was not a publication within the meaning of s 121 of the Act. It was suggested in that case that a ‘publication’ would not occur if court documents were provided to a person in order for them to be translated or to receive advice about the impact of them. [2] (1981) FLC 91-046 at 76,396. In In the marriage of T. and T.,[3] the Full Court held that:… the transmission of documents to the Attorney-General or to responsible officers of his Department is not “publishing” or “publication” “to the public or a section of the public” within the meaning of sec. 121 …. [3] (1984) FLC 91-588 at 79,747. In In the matter of P (a child),[4] the Full Court held that the proposed provision of copies of family reports to an expert retained by a party in the course of the proceedings was not prohibited by s 121(1) of the Act as it would not amount to a publication or dissemination to “the public or a section of the public”, but, in any event, s 121(9)(f)(i) would apply. [4] (1993) FLC 92-376 at 79,895.
Ratio Decidendi
Legal Principle Established
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