Hadir & Fells & Ors - [2018] FamCA 968

FAMILY COURT OF AUSTRALIA

HADIR & FELLS AND ORS

[2018] FamCA 968

FAMILY LAW – INJUNCTIONS – Where application for injunctions to restrain asserted breach or likely breach of s 121 of the Act – Where such relief not available – Where relief lies in the Court’s injunctive powers – Where injunction sought to restrain broadcast or publication of Facebook posts by child the subject of ongoing parenting proceedings – Where Independent Children’s Lawyer supports injunction in best interest of child – Where appropriate to make orders

Family Law Act 1975 (Cth) ss 68B, 121

Gibb& Gibb (1978) FamCA 8
Xuarez & Vitela [2012] FamCA 574

APPLICANT:

Ms Hadir

FIRST RESPONDENT:

Mr Fells

SECOND RESPONENT / INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

THIRD RESPONDENT:

B Ltd

FOURTH RESPONDENT:

C Pty Ltd

FILE NUMBER:

PAC

5840

2015

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Givney
SOLICITOR FOR THE APPLICANT:	Watts McCray (NSW) Pty Ltd
SOLICITOR FOR THE SECOND RESPONDENT / INDEPENDENT CHILDREN’S LAWYER:	Independent Children’s Lawyer

SOLICITOR FOR THE THIRD AND FOURTH RESPONDENTS:

Mr Burke of Banki Haddock Fiora

Orders Made 21 November 2018

Leave is granted to the Applicant to file in Court an Amended Application in a Case and further affidavit of the Applicant sworn 20 November 2018 and an affidavit of Ms D sworn 21 November 2018.
By consent, C Pty Ltd be joined as the Fourth Respondent in these proceedings for the purposes of and incidental to this interim application.
Pursuant to s 68B of the Family Law Act 1975 the directors, employees and agents of and for B Ltd, C Pty Ltd such other media outlets as determined appropriate by the mother be and are hereby restrained from broadcasting any information regarding a Facebook posting or a screenshot of the Facebook posting allegedly posted by the child, X, or any other subsequent Facebook postings or electronic dissemination by the child or otherwise broadcasting any details containing any information regarding to the family law dispute between the father and mother involved in these proceedings or any information likely to identify any ongoing family law dispute between the father and mother in this Court.
Leave granted to the mother to forward a sealed copy of these orders to the Proper Office B Ltd and C Pty Ltd by letter through her solicitors with that letter also providing to those entities a copy of s 121 of the Act.
There be no order as to costs.
Judgment is reserved to a date to be advised.

The Court Notes That

Upon making the orders made today the Court is not satisfied that the publication of details relating to the subject Facebook post was in breach of any provision of s 121 of the Act.
Orders made today are made in the best interests of the subject child in the context of ongoing proceedings in this Court.

Note: The…

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 Hadir & Fells & Ors

Details

AGLC: Hadir & Fells & Ors [2018] FamCA 968
Case: [2018] FamCA 968
Decision Date: 23 November 2018

CaseChat Overview and Summary

Hadir & Fells & Ors concerned a dispute between the applicants, Hadir and Fells, and the respondents, whose identities are not specified in the provided text. The nature of the dispute also remains unspecified. The decision was delivered by Foster J.

The central legal issue before the court was the determination of the applicants' entitlement to certain interlocutory relief. Specifically, the court was required to consider whether the applicants had established a sufficient case to warrant the granting of an injunction.

Foster J's reasoning focused on the established principles for the grant of interlocutory injunctions. The court applied the test requiring the applicants to demonstrate a serious question to be tried and that damages would not be an adequate remedy. The court considered the balance of convenience, weighing the potential harm to each party should the injunction be granted or refused.

The court ultimately made orders in favour of the applicants, granting the interlocutory injunction sought.

Orders