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…
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CaseChat Overview and Summary
The primary legal issues the court had to decide included whether to grant injunctions preventing the parties from making public statements that could adversely affect the children. The court also had to consider whether it should permit additional evidence to be submitted by one of the parties after the hearing had concluded. Furthermore, the court needed to weigh the interests of the children against the equitable maxim that parties must come to court with "clean hands," meaning they should not have engaged in improper conduct that would disqualify them from receiving relief.
The court exercised its discretion to grant the orders proposed by the Independent Children's Lawyer, with some modifications. It rejected the proposal that required the parties to detail their public comments, as it was not possible to prevent statements already made. The court emphasised the importance of protecting the children from harm caused by their parents' public conduct. It noted the well-established principle that the power to grant injunctions should be exercised cautiously and only when necessary to protect the applicant's interests. The court also took into account that both parties had engaged in public commentary contrary to the spirit of the proposed orders, which undermined their respective positions. Despite this, the court proceeded with its decision to protect the children's best interests.
The final orders of the court included injunctions to prevent further public commentary that could harm the children, along with other measures to safeguard the children's welfare. The court's decision underscores the importance of balancing the rights and interests of the parties with the paramount consideration of the children's welfare in family law disputes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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).