Hartley & Hartley (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hartley & Hartley (No 3) [2023] FedCFamC1F 758

File number(s): SYC 6780 of 2020
Judgment of: CHRISTIE J
Date of judgment: 1 September 2023
Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – INJUNCTION – Media engagement by parents – Where the parties are public-figures – Where interlocutory injunctions have restrained the parties from media engagements that are negative about the other parent – Where the father seeks that the interlocutory injunctions are made on a final basis – Where the mother opposes the father’s application – Where the injunctions sought by the father are consistent with the expert opinion and in the best interests of the children –  Where the mother works in media –  Where the mother asserts the injunctions sought by the father will be substantially and disproportionately onerous for her given her profession – Where the evidence does not establish the mother will not be able to able to work nor any impact on her income or earning capacity – Where in the eyes of the Court, the rights of the children prevail over the rights of the parents where those rights conflict – Where the terms of the injunctions are not ambiguous – Order for each party to bear half of the costs of the Independent Children’s Lawyer.
Legislation: Family Law Act 1975 (Cth) ss 68B, 117, 121
Cases cited:

Chaoping (Steve) Chu v Da Cheng (Eddie) [2021] NSWSC 956

Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] KB 87

In the Marriage of B and B; Herald Sun TV PTY Ltd (Applicant) (1986) FLC 91-741

Patel & O’Riley (Non-Publication) [2010] FamCAFC 57

Re W: Publication Application (1997) FLC 92-756

Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365

U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance
Number of paragraphs: 97
Date of hearing: 16 August 2023
Place: Sydney
Counsel for the Applicant: Ms Gillies SC
Solicitor for the Applicant: Holmes Donnelly & Co Solicitors
Counsel for the Respondent: Ms Chrysanthou SC with Mr Olson
Solicitor for the Respondent: Barkus Doolan Winning
Counsel for the Independent Children's Lawyer: Ms Shea
Solicitor for the Independent Children's Lawyer: MCW Lawyers

ORDERS

SYC 6780 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR HARTLEY

Applicant
AND:

MS HARTLET

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

1 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.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.

2.Each parent be restrained from publishing negative or derogatory statements about the other parent on social media (which includes but is not limited to blogs, lnstagram and/or Facebook) or in any media publication, website, forum or…

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Details
Case
[2023] FedCFamC1F 758
Decision Date

CaseChat Overview and Summary

In the case of Hartley & Hartley (No 3), the Federal Circuit and Family Court of Australia (Division 1) dealt with an application by Mr. Hartley to make final the interim injunctions that were previously granted in the case. The injunctions primarily restrained both parties from making negative comments about each other in the media or social media, and from discussing issues arising from the family law proceedings with the media. The children had an Independent Children's Lawyer (ICL) who supported the making of the injunctions on a final basis. The mother opposed the application, arguing that the injunctions would be substantially and disproportionately onerous given her profession in media.

The court needed to determine whether the evidence supported making the interim injunctions final and whether the limitations imposed were reasonably adapted and no more than necessary to secure the best interests of the children. The court noted that the interim orders were clear and not ambiguous, and the evidence suggested that the injunctions were consistent with the expert opinion and in the best interests of the children. The court also noted that the mother's assertion that she would not be able to work or that her income or earning capacity would be impacted was not substantiated by the evidence.

The court decided that the injunctions should be made final as they were necessary to protect the best interests of the children. The terms of the injunctions were not ambiguous and the rights of the children prevailed over the rights of the parents where those rights conflicted. The court further ordered that each party bear half of the costs of the ICL. The court noted that the injunctions did not prevent either parent from discussing general issues such as domestic violence, mental health, drug and alcohol issues, and other social issues, as long as they did so without specific reference to the other parent or their personal experience.

The final orders included a provision for each party to bear half of the costs of the ICL, and clarified that the term "negative or derogatory statements" included those that would create a negative impression of the other party. The form of the order was subject to entry in the Court’s records, and the reasons for judgment could be subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

SYC 6780 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HARTLEY

Applicant

AND:

MS HARTLET

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

1 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. 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.

2. Each parent be restrained from publishing negative or derogatory statements about the other parent on social media (which includes but is not limited to blogs, lnstagram 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 family members and/or friends do so.

3. Within six (6) months of the date of these Orders the applicant and respondent each pay half of the costs of the independent children’s lawyer in the sum of $16,163.37.

THE COURT NOTES THAT:

A. "Negative or derogatory statements" are taken to include statements which the reasonable person would conclude create 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.

B. 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 as between the parties.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I accept that the parties’ subjective views may impact on their decisions going forward as to enforcement of the terms of the order but it is plain that the focus is on ensuring that neither parent contributes to negative information in the media about the other parent by providing information, commentary or documents. CONCLUSIONS Junior counsel for the mother submitted, by the mother’s case outline:8. … that the Court would only make such [restraints ] if: (a) there is an adequate evidentiary basis to conclude that the conduct sought to be restrained is in fact contrary to the best interests of the children; and (b) the limitation imposed is reasonably adapted and no more than is necessary to secure the bests interests of the children. … I agree. Senior counsel for the mother noted that the parties had agreed to a mutual non-denigration clause as part of the suite of final orders to which they each consented. Those orders provided:44.The Mother is restrained from denigrating the Father or the paternal family in the presence or hearing of the children and shall ensure that no other person denigrates the Father or the paternal family in the presence or hearing of the children.45.The Father is restrained from denigrating the Mother or the maternal family in the presence or hearing of the children and shall ensure that no other person denigrates the Mother or the paternal family in the presence or hearing of the children. It was submitted that “denigration” is a term which is easily understood and capable of being complied with. If the parties can understand what it means to denigrate one another then they can well understand what it means to make a negative comment about the other parent.COSTS The ICL sought her costs. Each of the parents indicated that if the court exercised its discretion to make an order for costs in favour of the ICL they sought six months to pay. The ICL did not oppose that course. The costs memorandum (exhibit 27) recorded total costs of $16,163.37 apportioned between the parents so each would be required to pay $8,081.69. I find that there are circumstances justifying the making of an order in favour of the ICL in reliance upon s 117(5) of the Act and will order accordingly.

Ratio Decidendi

Legal Principle Established

Given that injunctions function to place limitations on the conduct of a party, in this case to place limitations on both parties right to freedom of expression, it is important to do so only when required. The principles are not controversial and I adopt the manner in which they were set out in the reasons for judgment of McClelland DCJ in Hartley & Hartley [2021] FedCFamC1F 178 at [13] – [14]:13. 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’.14. 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.(Footnote omitted)CONSIDERATION The father seeks, on a final basis, orders that are identical to those which were made on an interim basis. The mother seeks that the father’s application be dismissed. The children have an Independent Children’s Lawyer (“ICL”). The ICL made submissions in support of the making of injunctions on a final basis. The interim orders made 21 September 2022 which the father seeks be made final are as follows:10.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.11. Each parent is restrained from publishing any negative or derogatory statements in relation to the other parent or any member of the other parent’s family or household to or in the presence or within hearing of the children. 12. Each parent be restrained from publishing negative or 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, including but not limited to journalists, social commentators, family members and/or friends, does so.THE COURT NOTES THAT:A. “Negative or derogatory statements” are taken to include statements which the reasonable person would conclude create 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. To make the orders the father seeks I would need to be satisfied that the evidence supports the making of such orders. I have had regard to the case outlines of the father, the mother and the ICL.