Hadir & Fells & Ors
[2018] FamCA 968
•23 November 2018
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 | of | 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 form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadir & Fells and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5840 of 2015
| Ms Hadir |
Applicant
And
| Mr Fells |
First Respondent
And
| Independent Children’s Lawyer |
Second Respondent
And
| B Ltd |
Third Respondent
And
| C Pty Ltd |
Respondent
REASONS FOR JUDGMENT
The application for determination arises from an Application in a Case filed by the mother on 20 November 2018. In that application the mother sought injunctive relief under section 68B of the Family Law Act 1975 as against the respondent B Ltd to restrain the broadcasting of any information regarding to a Facebook posting or a screenshot of the Facebook posting allegedly posted by the mother’s teenage child X or, otherwise, broadcasting details of any information regarding the family law dispute between the mother and father involved in these proceedings. It was asserted that such publication or broadcast would be in breach of s 121 of the Act
In the alternative, the applicant sought similar injunctive relief pursuant to the provisions of section 68B of the Family Law Act 1975.
By reason of urgency and after considering the evidence and submissions, orders were made with reasons to be published as soon as practicable. These are those reasons.
On 21 November 2018 the mother filed an Amended Application in a Case essentially seeking the same relief but adding a prayer for an order as to costs on an indemnity basis as against B Ltd.
The mother relied upon the following documents:
a)her affidavit filed 20 November 2018;
b)her affidavit filed 21 November 2018;
c)the affidavit of Ms D, Solicitor filed 21 November 2018.
It is common ground between the parties that the mother and her estranged partner have been engaged in prolonged proceedings in this Court as to parenting and property adjustment.
The child X is a child of the parties’ de facto relationship born in 2002. That child is presently in the primary care of the father with the two younger children of the parties’ relationship in the primary care of the mother.
It is also readily apparent that the mother has a somewhat fractured relationship with the child.
Context
The mother became aware of a Facebook post, allegedly a post made by the child. The post makes various criticisms of the mother, an advocate for domestic violence reform, in the context of the mother’s own conduct and behaviour within the household and in her relationship with her estranged partner and her children.
The post makes no reference to there being any ongoing proceedings in this Court nor does it make any reference likely to identify any party or related party in proceedings before this Court.
If, indeed, the post is by the child, then the post seeks to engage in the public debate about domestic violence by raising the child’s allegations and assertions as to the mother’s own conduct and behaviour in her own household.
Section 121
Section 121 of the Act relevantly provides:
Restriction on publication of court proceedings
(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) …
(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)…
(5)An offence against this section is an indictable offence.
(11)In this section:
…
"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.
The alleged Facebook post by the child does not infringe the provisions of section 121.
Section 121 does not of itself give rise to any injunctive power to restrain any asserted or ongoing breach of its terms: Gibb & Gibb (1978) FamCA 8. The remedy as appropriate lies in the Court’s injunctive powers in ss 68B and 114 of the Act: Xuarez & Vitela [2012] FamCA 574 (Forrest J).
The mother says that subsequent to her becoming aware of the subject Facebook post, she was contacted by an associate producer of a program. An enquiry was made of the mother as to whether the assertions in the post were true and whether the mother would go on the public record on the issue. The mother was informed that it was proposed that the issues raised by the Facebook post were due to air.
The mother, through her solicitors, responded by letter to the request drawing attention to the provisions of section 121 of the Act and the provisions of section 68B of the Act.
Section 68B
Section 68B of the Act relevantly provides:
Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The mother sought an undertaking from B Ltd that it would cease-and-desist publication of any material or information regarding the children or the mother in her capacity as a mother.
At about 4.56 pm that day the mother’s solicitors received an email from B Ltd advising “your response is noted, and I confirm that at this stage, without any admission, [B Ltd] does not intend to proceed with publication of these allegations tomorrow”.
However, in a good demonstration of the left hand not knowing what the right hand was doing and at about 5.28 pm one day a broadcaster employed by a wholly-owned entity of B Ltd, C Pty Ltd (Exh “C”) broadcast the contents of the alleged Facebook post with the broadcast also being available for listening or viewing through the Internet.
The mother’s solicitor promptly contacted B Ltd and was informed that at 5.30 pm a direction had been issued not to publish. Regrettably, this was a few minutes after the impugned material was published by broadcast. It appears that subsequently the availability of the broadcast has been removed from the Internet.
A consideration of the broadcast (Exhibit “D”) leads to the conclusion that as with the Facebook post itself the contents of the broadcast and the limited comment that accompanied a repetition of a major portion of the Facebook post does not fall foul of section 121 of the Act.
It was contended on behalf of the respondent B Ltd and the further respondent, added by consent, C Pty Ltd that the broadcast did not infringe the provisions of section 121.
Whilst that may be the case, the reality is that the engagement of a child in a public debate about domestic violence by involving her parents and, in particular, the mother in salacious and untested allegations is inappropriate where there are ongoing proceedings in this Court where such allegations are to be tested.
The Independent Children’s Lawyer
As submitted by the Independent Children’s Lawyer, who represents the subject child in ongoing proceedings in this Court, facilitating the child achieving some public notoriety by an ongoing debate or allegations about the mother is inappropriate and not in the child’s best interests. Otherwise, it is contended the child could be subject to ridicule or embarrassment.
Whilst the Court is not in a position to restrain the child, assuming that it was indeed the child that published the Facebook post, it is appropriate in the best interests of the child to facilitate orders that restrain the broadcast or further publication of any posts or further information by the child and that restrain the broadcasting of details of any information regarding the ongoing family law dispute between the father and mother involved in these proceedings.
As properly contended by the Independent Children’s Lawyer such relief is found in s 68B of the Act. It is appropriate that injunctive orders are made as sought.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 November 2018.
Associate:
Date: 23 November 2018
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