Hartley & Hartley
[2021] FedCFamC1F 178
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hartley & Hartley [2021] FedCFamC1F 178
File number(s): SYC 6780 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 8 November 2021 Catchwords: FAMILY LAW – CHILDREN – INJUNCTIONS – Where the Mother and Father have media profiles and have made prior statements to the media regarding the other parent – Where the parties are not opposed to the proposal by the Independent Children’s Lawyer seeking a restraint preventing the Mother and Father from publishing statements on certain matters regarding the other parent – Where the parties are in dispute regarding the scope of such restraints – Finding that the Father’s proposed restraints against ‘negative’ statements are unjustifiably broad and ambiguous – Orders proposed by Independent Children’s Lawyer and Mother ‘appropriate for the welfare’ of the children – Significant public interest and concern in respect to the issues of family violence, mental health and substance abuse – Notation as sought by the Mother and Independent Children’s Lawyer made with regard to not unreasonably restraining freedom of speech including in respect to the broader issues referred to above. Legislation: Family Law Act 1975 (Cth) ss 68B, 68B(2), 121. Cases cited: Andrews & Andrews [2007] FamCA 562.
Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
Hartley & Hartley [2021] FamCA 610.
Cardile v LED Builders Pty Limited [1999] HCA 18.
Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd [1932] 2 KB 87.
Sieling and Sieling (1979) FLC 90-627.
Division: Division 1 First Instance Number of paragraphs: 34 Date of last submission: 30 September 2021 Date of hearing: 6 August 2021 & 19 August 2021. Written submissions filed on 30 September 2021. Place: Sydney via webconference Solicitor for the Applicant: Holmes Donnelly & Co Solicitors Solicitor for the Respondent: Barkus Doolan Counsel for the Respondent: Ms Lawson Solicitor for the Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Ms Lioumis ORDERS
SYC 6780 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARTLEY
Applicant
AND: MS HARTLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
8 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Notwithstanding the provision of s 121 of Family Law Act 1975 (Cth), without admissions each party is hereby restrained from discussing, disseminating, providing information about, commenting on or publishing any statements about the family law proceedings, or any issues arising therefrom, with any media outlet, journalist, media identity and/or any social media platform, website, forum or publication.
2.Without admissions, each parent be restrained by injunction from publishing any derogatory statements in relation to the other parent or members of the other parent's family or household to or in the presence or hearing range of the children. Each parent is also restrained from publishing derogatory statements about the other parent on social media (which includes, but is not limited to, blogs, Instagram and/or Facebook) or in any media publication, website, forum or digital platform and each parent will use their best endeavours to ensure that no other person does so.
FURTHER IT IS NOTED THAT:
A.These orders do not prevent each parent from publishing general statements about domestic violence and coercive control, mental health issues, matters pertaining to drug and alcohol issues and other social issues but they are to do so without specific reference to the other parent and/or their own personal experience of same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Hartley & Hartley are approved approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUSTICE MCCLELLAND:
INTRODUCTION
This decision concerns an issue about whether restraints should be imposed upon the parties, who both have significant media profiles, to restrain them from engaging in public discourse regarding matters that have occurred during the course of their relationship and in respect to these proceedings.
The issue of restraints first came before me by way of the Applicant father, Mr Hartley’s (‘the Father’) Application in a Case filed on 12 July 2021 seeking a review of interim parenting orders with respect to the parties’ two children (‘the Interim Parenting Proceedings’). The Respondent Mother, Ms Hartley (‘the Mother’), and the Independent Children’s Lawyer (‘ICL’) are the remaining parties to these proceedings.
On 6 August 2021, the Interim Parenting Proceedings were listed for hearing before me, at which time I reserved my judgment in the matter. Relevant to the current issue, at that hearing, the ICL sought, amongst other orders, the proposed orders 11 and 12 of the ICL’s Case Outline document being, in summary, restraints on the parties’ engagement with media outlets and the making of negative comments in the presence of the children, notwithstanding s 121 of the Family Law Act 1975 (Cth) (‘the Act’).
On 19 August 2021, I delivered reasons in respect of the Father’s Application in a Case that was the subject of the Interim Parenting Proceedings, save for the issue of restraints. That issue alone was the subject of a further Application in a Case filed by the ICL on 17 August 2021, for which I reserved judgment on 19 August 2021 and invited written submissions and proposed orders from the parties. In accordance with my subsequent orders made on 9 and 17 September 2021 extending the time for such submissions to be filed, the parties, who were unable to reach agreement, filed written submissions on 30 September 2021 on their respective proposed restraints.
THE PARTIES’ PROPOSED ORDERS
At the hearing on 6 August 2021, the ICL sought restraints of the parties be made in the following terms:
11.Notwithstanding the provision of s121 of Family Law Act 1975 each party be hereby injuncted and restrained from discussing, disseminating, providing information about, commenting or publishing on any aspect of the separation and/or family law proceedings or any issues arising therefrom, with any media outlet, journalist, media identity and/or on any social media platform, website, forum or publication.
12.Each parent be restrained by injunction from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent's family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the children or via written correspondence or on social media, including but not limited to blogs, lnstagram and/or Facebook which may be viewed or accessed by the child/ren and each parent will use their best endeavours to ensure that no other person does so.
(as per the original)
The reasons advanced by the ICL for seeking those orders were summarised in my decision Hartley & Hartley [2021] FamCA 610 (‘the Interim Parenting Judgment’) at paragraphs 71-74 as follows:
71.The ICL noted that the proposed order in that respect was motivated by paragraphs 227–228 of the report of Dr L. In those paragraphs Dr L referred to the mother providing a 50 page statement which the mother had made to police regarding the father’s conduct, to the media. Counsel for the ICL submitted that it was a concern that the mother expressed knowledge of s 121 of the Act but didn’t agree to the proposed order (11) submitted by the ICL.
72.In submissions before me, the ICL expressed concern about further media publicity of the parents’ relationship and the allegations they respectively make against each other. The ICL contended that, in circumstances where both parents have highly visible public profiles, the children are potentially prejudiced by others becoming aware of their parents’ private lives. This would include, for example, the children’s friends, the parents of their friends, their teachers, and other persons with whom they associate.
73.Counsel for the ICL further expressed concerns about the potential for the father to have inappropriately disclosed information concerning the parties’ private affairs including their marital dispute and matters arising from their marital dispute to the media…
74.The ICL contended, that irrespective of what has occurred in the past, orders as sought by the ICL in terms of her proposed order (11) should be made to prevent such disclosure from occurring in the future. Proposed order (11), it was therefore submitted, was in the best interests of the children and would confirm the need for both parents to focus their priority on the children.
The orders were, through the course of the hearing, supported by the Father but not the Mother. The Mother has, however, subsequently changed her position and now supports the need for restraints. Each party has, however, now proposed a different form of wording to that proposed by the ICL at the hearing. The parties’ respective proposed orders are set out immediately below.
The orders now proposed by the Independent Children’s Lawyer are as follows:
PENDING FURTHER ORDER IT IS ORDERED
1.Notwithstanding the provision of s121 of Family Law Act 1975 without admissions each party hereby restrained from discussing, disseminating, providing information about, commenting on or publishing any statements about the family law proceedings or any issues arising therefrom, with any media outlet, journalist, media identity and/or any social media platform, website, forum or publication.
2.WITHOUT ADMISSIONS each parent be restrained by injunction from publishing any derogatory statements in relation to the other parent or members of the other parent's family or household to or in the presence or hearing range of the children. Each parent also be restrained from publishing derogatory statements about the other parent on social media (which includes but it not limited to blogs, Instagram and/or Facebook) or in any media publication, website, forum or digital platform and each parent will use their best endeavours to ensure that no other person does so.
3.Within 48 hours of the date of these orders the Mother and Father are to provide disclosure of any public statements, comments, posts, publications, interviews filmed in which the Mother and/or the Father and/or the children are referenced, directly or indirectly.
NOTATION:
4.These orders do not prevent each parent from publishing general statements about domestic violence and coercive control, mental health issues, matters pertaining to drug and alcohol issues and other social issues but they are to do so without specific reference to the other parent and/or their own personal experience of same.
The Mother agrees, by her written submissions filed on 30 September 2021, ‘on a without admissions basis’ to the orders proposed by the ICL including the notation. That agreement is specified to be on the basis that ‘…the Court has formed the view at this interim stage, it is appropriate for such an order to be made’.
As previously noted, at the hearing of the Interim Parenting Proceedings, the Father supported the need for a restraint as proposed by the ICL. Having considered the revised proposal by the ICL the Father now proposes a different form of order, which is as follows:
PENDING FURTHER ORDER IT IS ORDERED
1.That the Father be permitted leave to rely on the Affidavit filed 30 September 2021.
2.IT IS NOTED the parties are aware of the provision of s121 of Family Law Act 1975 restraining them from discussing, disseminating, providing information about, commenting on, or publishing any statements about the family law proceedings or part thereof;
3.IT IS FURTHER NOTED the below Orders are made by Consent on a without admissions basis.
4.Each party is restrained from discussing, disseminating, providing negative information about, commenting negatively on, or publishing any statements about any issues arising from the family law proceedings, or any aspect of the party’s separation with any media outlet, journalist, media identity and/or any social media platform, website, forum, or publication.
5.Each parent be restrained by injunction from publishing any negative or derogatory statements in relation to the other parent or members of the other parent's family or household to or in the presence or hearing range of the children.
6.Each parent be restrained from publishing negative or derogatory statements about the other parent on social media (which includes but it not limited to blogs, Instagram and/or Facebook) or in any media publication, website, forum or digital platform and each parent will use their best endeavours to ensure that no other person, including but not limited to journalists, social commentators, family members and/or friends, does so.
7. IT IS FURTHER NOTED “negative or derogatory statements” are taken to include statements which the reasonable person would conclude creates a negative impression of the other party, expressly or impliedly from the statement made, having regard to all of the relevant circumstances in which that statement was made.
(as per the original)
RELEVANT PRINCIPLES
The Court is empowered to grant injunctive relief in the nature of that sought by the parties pursuant to s 68B of the Act which relevantly empowers the Court to ‘grant such injunction as it considers appropriate for the welfare of the child’ including, pursuant to s 68B(2), by interlocutory order ‘in any case in which it appears to the court to be just or convenient to do so.’
At the outset it should be noted that the granting of an injunction restraining the exercise of what otherwise would be a person’s inherent rights and freedoms is a serious matter. The breach of such injunction potentially exposes a person to an action for contempt of Court. As noted by the plurality in Cardile v LED Builders Pty Limited [1999] HCA 18 (‘Cardile’) at [31]:
…that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights.
(references omitted)
In considering the nature of the injunctive relief, it is important to be aware of the general principle that ‘equity intervenes to the minimum extent necessary to do justice’.[1]
[1] See Giumelli v Giumelli (1999) 196 CLR 101 at [10] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ referred to in Norton & Locke (2013) 284 FLR 51 at [72].
In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78 264, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.
CONSIDERATION
As outlined earlier in this judgment, the Father by his Minute of Order dated 30 September 2021, seeks, amongst other orders, that he be ‘permitted leave to rely on the Affidavit filed 30 September 2021’. That proposed order was not supported by an argument based on well-known principles regarding circumstances in which a Court will accept further evidence subsequent to the conclusion of the hearing of the matter[2]. Nonetheless, in circumstances where the content of that Affidavit has not influenced the decision that I have made in this matter and simply to avoid yet further litigation between the parties in this matter I can confirm that I have read the Affidavit and have had regard to its contents. In summary, it simply confirms the view that I have formed that each party has, regrettably, including in the period subsequent to the hearing of this matter on 6 August 2021 and 19 August 2021, engaged in public commentary which, at the very least, is contrary to the spirit and intent of the orders first proposed by the ICL at the Interim Parenting Proceedings.
[2] See Reid v Brett(2005) VSC 18 at [41].
In summary, to a large extent, the horse has already bolted in respect to the very issue raised as a concern by the ICL at the Interim Hearing and which I also regarded as being a concern as noted in my decision of 19 August 2021. That issue was the potential harm to the children caused by the parties’ conduct in repeatedly engaging with the media about their private affairs, which, as I say, has unfortunately occurred.
Had it not been my concern for the best interests of the children I would have, quite frankly, rejected the submissions of each party on the basis of the conduct that they have respectively engaged in. In that respect as noted by Cronin J in Martin & Martin and Ors [2013] FamCA 222 at [29] that it is well understood “that parties seeking the relief of the court through an equitable remedy must come with clean hands.”[3]
[3] Citing Black Uhlans Incorporated v New South Wales Crime Commission and Ors [2002] NSWSC 1060.
Further in Andrews & Andrews [2007] FamCA 562 the Full Court at [56] applied the maxim as set out in Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: Butterworths, 4th ed, 2002) at [3-110] that ‘he who comes into equity must come with clean hands’. Their Honours at [56] noted that the learned authors succinctly summarised the principle as follows:
It means that when a plaintiff whose conduct has been improper in a transaction seeks relief in equity that relief will be refused. … [i]t is an historical reflection of the fact that courts of equity began with courts of conscience.
(See Cory v Gertcken (1816) 2 Madd 40; 56 ER 250; Cawthorn v Cawthorn (1998) FLC 92- 805 at 85,061).
Neither of the parties, in my view, comes to this issue with clean hands.
However, for reasons which I set out in paragraphs 71 – 74 of the Interim Parenting Judgment I consider it is appropriate to grant an injunction for the purposes explained by the ICL in order to protect the welfare of the children in this matter. It appears that there is, at least, at this point in time, a broad consensus that such an order is appropriate. The dispute is, as noted, in respect of the wording of the proposed injunction.
In that respect, instead of the words as used in proposed order 1 of the orders proposed by the ICL and supported by the Mother which would restrain the parties from, broadly put, publication ‘about the family law proceedings or any issues arising therefrom’, the Father by his proposed order 4 seeks to restrain publication about ‘any issues arising from the family law proceedings, or any aspect of the party’s separation’.
The wording proposed by the Father is, in my view, unjustifiably broad and goes beyond that which is necessary to protect the interests of the children and their welfare.
In proposed order 2, the ICL and the Mother propose a restraint on both parties in respect to the publication of ‘derogatory statements’ regarding the other party, and that ‘each parent will use their best endeavours to ensure that no other person does so’. Whereas the Father, in his proposed orders 5 and 6, proposes to restrain each parent from publication of ‘negative or derogatory statements’ about the other parent and that ‘each parent will use their best endeavours to ensure that no other person, including but not limited to journalists, social commentators, family members and/or friends, does so’. All of the parties propose that their proposed restraint above includes ‘members of the other parent's family or household to or in the presence or hearing range of the children’. I agree that such a restraint is appropriate.
However, it is, again my view that the Father’s proposal is unreasonably and unjustifiably broad. In so finding I note that the Father seeks to clarify the broad language which he proposes by defining ‘negative or derogatory statements’ in the following terms:
…“negative or derogatory statements” are taken to include statements which the reasonable person would conclude creates a negative impression of the other party, expressly or impliedly from the statement made, having regard to all of the relevant circumstances in which that statement was made.
That definitional notation does not, in my view, assist the Father’s position. If anything it expands the unacceptable width of the expression ‘negative or derogatory statements’ to include anything which could give a ‘negative impression of the other party, expressly or impliedly.’ Moreover, the determination of that question cannot be made until the statement has, in actual fact been made or published. I note, in that respect, the reference to the past tense application of the phrase ‘relevant circumstances in which the statement was made’ (emphasis added).
As an additional reason for rejecting that aspect of the Father’s proposed order I note that orders which potentially attract a coercive response should be expressed in clear language. The fundamental principle is that ‘if the Court is to punish any one for not carrying out its orders the order must in unambiguous terms direct what is to be done’: Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd [1932] 2 KB 87 at [95].
The breach of an injunction gives rise to the prospect of proceedings for contempt of court which has potentially very serious consequences for the party acting in breach of the order. The orders proposed by the Father are, in my view, not only unreasonably and unnecessarily broad, they are unsatisfactorily ambiguous and could result in an injustice in the event that proceedings were commenced against one or other of the parties for breaching the orders as they are proposed by the Father.
Finally, the question becomes whether I should include, in the orders, the notation proposed by the Mother and ICL which would permit the Mother and Father to comment publicly on issues regarding family violence, mental health and other matters, providing such commentary does not refer specifically to the personal circumstances involving either parent, these legal proceedings or matters arising therefrom.
In my Interim Parenting Judgment handed down on 19 August 2021, and in these reasons, I have specifically refrained from determining whether the Mother’s allegations made against the Father concerning family violence are of substance and, similarly, neither should this decision be regarded as a determination of the issue.
Nevertheless, family violence, mental health and substance abuse are serious social and political issues that are of general concern in society and the Judges of this Court. The Court would, in most circumstances be loathe to make any orders which impeded any person’s right to participate in discourse in respect to such serious issues. Moreover, insofar as those issues are the subject of political commentary, I note the comments of Mason CJ in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 143 to the effect that ‘ordinarily paramount weight should be given to the public interest in freedom of communication’ in connection with political commentary.
To be clear, in referring to the comments of Mason CJ it has been unnecessary for me to determine whether commentary engaged in by either party falls within the concept of implied freedom of political communication. Rather, as a matter of discretion I have determined that it would not be ‘just or convenient’ to restrain either parents’ commentary in the manner proposed by the Father and the notation proposed by the ICL and the Mother would be a further safeguard against that occurring.
In so finding, I have had regard to Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57 where Gleeson CJ and Crennan J noted at [16], in the context of an application for interim injunctive relief to restrain publication, that ‘there is the public interest in the right of free speech’ to consider. In so stating their Honours referred to London Artists Ltd v Littler [1969] 2 QB 375 at 391 where Lord Denning MR said:
Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. [4]
[4] See also Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; and helpful commentary in George, P “Defamation Law in Australia 2ed”, LexisNexis (2011) pp 117 – 122.
Clearly, there is understandably considerable public interest and concern regarding the prevalence of family violence, mental illness and substance abuse in our society.
CONCLUSION
Accordingly, for these reasons I have made the orders as proposed by the ICL in the ICL’s Minute of Order dated 30 August 2021 and supported by the Mother. I have not, however made the proposed order 3 requiring parties to particularise public commentary that they have already made. This is in circumstances where it is not possible to prevent that which has already occurred.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 8 November 2021
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