Hartley & Hartley (No 3)
[2023] FedCFamC1F 758
•1 September 2023
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is a final parenting hearing on a very limited issue. The parents reached an agreement on all issues (save one) and final consent orders were made orders of the Court on 23 June 2023 (“the consent orders”).
There are two children the subject of these proceedings: X born 2017 (6 years old) and Y born 2018 (four years old) (“the children”).
The consent orders provide for the parents to have equal shared parental responsibility. The children are to live with their mother and spend time with their father, graduated so that time increases to three weekends each school term in late 2023 and half school holidays by 2026.
After those orders were made the father was offered and accepted work outside Australia which may impact on his capacity to exercise all of the time provided in the consent orders.
The issue which the parties have asked the court to adjudicate is what injunctions (if any) are necessary, having regard to the welfare of the children.
This issue has been the subject of litigation between the parents for some time and both McClelland DCJ and I have previously made orders restricting the parties’ rights to make public statements of a negative or derogatory nature.
THE LAW
This is an application for injunctions which relate to the parents’ engagement with the media. In that context it is useful to understand the operation of s 121 of the Family Law Act 1975 (Cth) (“the Act”).
Section 121 of the Act provides:
(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)A person who, except as permitted by the applicable Rules of Court, 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 (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(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) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.
(5)An offence against this section is an indictable offence.
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d) the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
(10)Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note: Powers to make Rules of Court are also contained in sections 109A and 123.
(11) In this section:
court includes:
(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
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.
It is appropriate to consider the scope of s 121 of the Act since it is the wife’s case that these provisions are adequate and no further limitation should be imposed.
Section 121 of the Act is a limitation to the principle of open justice. While there is a general principle that proceedings be conducted in open court and anonymised reasons for judgment must be made publicly available, the limitation in s 121 of the Act recognises that there is a public interest in the protection of the private information of separating families, in particular children.
In Re W: Publication Application (1997) FLC 92-756 the Full Court, acknowledging the common law principles supporting the open reporting of legal proceedings, noted that this principle is the subject of legitimate restraint. Their Honours (Fogarty and Baker JJ, Finn J dissenting) wrote at 84,250:
Nevertheless, it has been recognised that these principles must allow certain exceptions when the requirements of justice so dictate, an acknowledgment that there are many competing interests which justice must respect. Viscount Haldane L.C. put it thus in an oft-cited passage in Scott v. Scott, supra, at 437-9:
While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, ... But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic ... It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. ... The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity ... He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure ...
Section 121(1) of the Act prohibits publication of “any account of any proceedings”. The reasons for judgment in a matter, to the extent that they contain identifying material, would satisfy that description.
It is plain that “any account of any proceedings” is not limited to dissemination of reasons for judgment. An account of proceedings will include a narrative which identifies a party (or children) and does so in the context of proceedings between them being before or having been before the Court.
The Full Court in Patel & O’Riley (Non-Publication) [2010] FamCAFC 57 observed:
9.Section 121 does not provide a general ban on publication of proceedings under the Act. What it does is make it an offence to publish any account of proceedings that identifies any of the persons involved in a newspaper or periodical publication, radio or television broadcast or by other electronic means. The means by which persons may be identified are extensively defined. In CCH, Australian Family Law and Practice, vol 1 (at 54-545) the authors said that while s 121 now prohibits only material that identifies the party, related persons or witnesses, and makes it clear that it is only intended to operate in publication in the media, subs (3) provides: “Such a large number of ways in which a person may be said to be identified as substantially to prevent any but the most broad general account of any proceedings in the Family Court.”
But, while s 121 of the Act is sufficiently broad to cover publication or dissemination of a parties’ narrative about proceedings which contains identifying details, it is not so broad to cover one party discussing the facts and circumstances of their (historically) intact relationship in a public setting in a manner which identifies the participants and potentially arguably not broad enough to cover a party discussing the circumstances in which their relationship ended.
It is for this reason that it is necessary to understand what other limitation might exist in the Act. An injunction under s 68B of the Act may be made where necessary for the welfare of the children.
Section 68B provides:
(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.
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.
Some background factual information is relevant to the application.
The parties separated in October 2019.
The father is a former professional athlete who has subsequently worked in sport and media. The mother trained as a media professional and describes herself as currently undertaking “freelance media […] work”. Her affidavit refers to her having grown her “social media following”.
There was an incident in late 2019 between the father and the maternal grandfather. On the following day the father was served with a provisional apprehended personal violence order (“APVO”) and an application for an APVO in relation to the events of the previous day. Significant litigation culminated in the father’s successful appeal against a charge (relating to the incident with the maternal grandfather). There is not and has not been an apprehended domestic violence order or any other family violence order as between the parties.
The father served the mother with his application to this Court seeking parenting orders on 25 September 2020. Soon after, the mother provided NSW Police with a long statement. In late 2020 an article was published in a major newspaper. The article was about the father and the sports organisation which was his employer at the time of publication. Prior to its publication, the mother provided the authors of the article with the same statement she had previously given to NSW Police.
It is not seriously in dispute that the primary sources of information for the article were the mother and her father. Reading the statement provided to police and the journalists alongside this newspaper article, it is plain that the mother was the source of the information contained in that article, at least as it concerns the parties. The article contains allegations that the father assaulted the pregnant mother, abused illicit and prescription drugs, swore at the mother and was in colloquial language “out of control”. All of the mother’s allegations, if true, would have been frightening for her and her family.
The proceedings before me were not conducted by either party (or the ICL) on the basis that I was being asked to find whether the allegations in this article (or any subsequent media) were true or otherwise. I appreciate that the allegations concerning domestic violence were maintained by the mother and denied by the father.
It must also be recorded that both the mother and the father have engaged with the media after separation. So, while the majority of these reason focus on the mother’s engagement with the media they do so in circumstances where the father has since the time of the first injunctions agreed to limits on his engagement and where the mother does not seek an injunction restraining the father’s engagement.
It is necessary to understand the interplay in the case between the parents’ media involvement and the children. The evidence is uncontroversial that the mother facilitated time between the children and the father prior to the first article in the newspaper. The father served his Initiating Application and associated material on the mother on 25 September 2020 and the mother provided the statement to police referred to above soon after. Sometime between that date and the publication of the article the mother provided that statement to the newspaper. The mother facilitated the children spending time with the father between 27-29 September 2020. From 30 September 2020, the mother ceased facilitating time between the father and the children and when the article was published, according to the case outline of the father, instructed her lawyers to write to the father’s lawyers:
In light of recent articles that have been published in the media, our client has serious concerns facilitating time between your client and the children. We are instructed that when there has been negative press about your client, it has been our client’s observation that your client’s mental health has regressed and our client is concerned what impact this could have on the children. In those circumstances the children will not be delivered to your client today.
Accepting the mother’s concern, as conveyed in her solicitor’s correspondence, on its face, the mother had been the source of the information in the article and had provided it with the knowledge that it may impact negatively on the mental health of the children’s father in circumstances where she had been facilitating the children’s time with him in the lead up to publication. This conduct seems inexplicable when viewed through the lens of its impact or potential impact on the parties’ children.
The parties met with the single expert Dr L, a child and family psychiatrist (“the single expert”), in early 2021 and then again three months later. The children, maternal grandparents and paternal uncle also attended upon the single expert in early 2021. The Court released the single expert’s 27 May 2021 report (“the single expert report”) on 4 June 2021. In the recommendations the single expert said at [309(v)]:
Both parties should undertake not to denigrate each other or their families. This should include the cessation of engagement with media organisations to put forward their case. To continue to do so will be detrimental to the children’s psychological development.
That recommendation followed the single expert opinion at [306]:
Although it would be inappropriate to place restrictions on contact between the children and a parent due to the provision of information to media organisations, it would be beneficial for the children for both parents to undertake to desist from further engagement with the media. Both parties should be aware of the detrimental impact on the children into the future which will result from such actions. The father expressed concern that the mother failed to grasp the significance of her actions. There was no indication that the mother recognised the significance of her behaviour. That said, it was evident that the media will continue to focus attention on the couple and their family life.
In cross-examination the single expert clarified that to the extent that he had entreated the parties to “desist from further engagement with the media” he had expressed himself poorly – he understood each of the parties may legitimately engage with the media in the future – his focus and the focus of his recommendation was squarely on his opinion that they should desist from engaging about matters relating to their relationship or the children.
In between the first set of interviews with the single expert and the second set, a magazine published an article based on interviews with the mother and her family. The article referenced the newspaper’s “explosive exposé”, highlighting the evidence of the single expert to the effect that when either of the parents chooses to engage with the media on the topic of their relationship it will inevitably cause the media to revisit past negative coverage.
In the single expert report the mother is reported to have discussed her concerns about media involvement as follows:
67. [Ms Hartley] identified the public aspect of their family circumstances as challenging. She minimised her contribution to this by her strong social media presence. This included posting pictures of the children on [social media] for her [several thousand] followers. Despite the impact of her media presence, she felt proud about her role in the community. Although she insisted that she kept the children and her private life separate, she repeatedly complained about the presence of paparazzi and being confronted by cameras at [events] which she related to “[Mr Hartley’s] vortex of partying on drugs”. She referred to the persistent online stories of [Mr Hartley’s] dating and partying in [Country W] and Sydney.
The mother is both concerned about the being in the public eye but simultaneously committed to being in the public eye. She is entitled to take this position. The real question is whether any orders can lessen the impact of this on the children of the parties. The children do not appear to have been the focus of her decisions about this topic (although as discussed elsewhere in these reasons the mother has sometimes indicated that she has been motivated by setting an example for her children). The single expert referred to his interview with the mother where she told him:
68. [Ms Hartley] had been approached by a friend and colleague, [Ms Z], in early 2020 regarding [Mr Hartley’s] drug use. [Ms Hartley] had helped [Mr Hartley] maintain his privacy at the time but subsequently decided to stop covering for him and found it “quite liberating” to share her experience with this friend/journalist.
The mother may well have found the experience of discussing the parties’ failed relationship liberating. The question for the court is to what extent the law should provide an injunctive remedy where parents talk about their relationship in the public sphere in a way which reflects negatively on one or both of them. It could not be said that the single expert was not cognisant of the mother’s desire to speak publicly and the connection between this and her work.
69. [Ms Hartley] had come to understand that she was a victim of coercive control, financial abuse and verbal abuse. He would call her “a cunt” on a daily basis. She had finally decided to prove the facts to the journalist at [the newspaper]. This enabled her to take control after [a] scandal and ongoing stories regarding [Mr Hartley]. It was her view that the truth needed to be told. She had the opportunity to share her experience.
Expressed as it is in the single expert report it seems plain that the mother’s decision to engage with the media was squarely focused on her need and desire (or perceived need and desire) to control the narrative. The single expert asked her about the engagement with media sources and recorded:
227. When asked about her contact with media organisations, referencing the additional questions raised by the Independent Children’s Lawyer, [Ms Hartley] questioned the reason for such enquiry. She explained that she had met with her friend, journalist [Ms Z], for several months to provide background for her exposé regarding [Mr Hartley]. This culminated in the provision of her 50-page statement to the Police to the journalist. This was her response to [other] articles which had favoured [Mr Hartley]. She complained of leaks made to other journalists. [Ms Hartley] proudly stated: “I have never spoken to a journalist about the divorce ever. I have maintained a dignified silence.” [The newspaper] article had not focussed on the divorce but on other aspects of [Mr Hartley’s] behaviour. She dismissed [Mr Hartley’s] assertion that he had never given an interview about any issues to the media. [Ms Hartley] commented: “Why would he? His behaviour has been disgusting. There is a real systemic issue of cover-up.”
It is difficult to reconcile the now uncontroversial evidence that the mother met with journalists and provided information, with the mother’s assertions via her solicitors’ letter dated 13 August 2021 as set out in the father’s case outline: “We note that to date, our client has not made any comment to the media about the parties’ separation nor has she spoken about the family violence endured at the behest of your client in any interview. She has spoken about the future and remained dignified”.
The single expert recorded in his report:
228. …When referred to the terms of reference for the assessment, [Ms Hartley] insisted, “I would never talk about the issues of the Family Court with media representatives.” [Ms Z’s] article attempted to set the record straight about the [sporting industry]. They had not been in the Family Court at the time. She denied that this has been a knee-jerk response to Family Court proceedings. When asked if the children’s experience had been address by [the newspaper], [Ms Hartley] agreed that they had, as she had been pregnant at the time and had been in the room with her daughter [during an incident].
229.[Ms Hartley] commented that it was “just quite bizarre” to be asked about such issues. She explained further that she had never contacted journalists, but rather she had been asked to verify facts for [Ms Z] over several months.
It is important to understand, given these comments, that none of the prohibitions which exist either by reason of the operation of s 121 of the Act, or by the making of injunctions pursuant to s 68B of the Act, are designed to protect the Court itself. There is an acknowledged public interest in accounts of proceedings provided they are not capable of revealing the identity of the people involved. The prohibitions arising from statute or Order are designed to protect privacy of individuals and to a greater extent to ensure the welfare of children involved in proceedings between their parents: See, eg, In the Marriage of B and B; Herald Sun TV PTY Ltd (Applicant) (1986) FLC 91-741, 75,419.
As discussed above the provisions of s 121 of the Act are different from those contained in s 68B and may be used to restrain a party from engaging in any conduct if the evidence supports that such conduct is harmful to children. The focus is not on the court proceedings per se but on whether the content of what is being shared by the parents is harmful to their children.
The single expert said:
304. …the mother appeared to have courted public support through her engagement with the media, facilitating the provision of information about the issues raised in these proceedings. This was not in the children’s best interests.
Here the difference between “any account of any proceedings” and “information about issues raised in these proceedings” is clear. The impact on the children does not arise from whether one of their parents is speaking about the court case per se but arises because one of their parents is speaking negatively about the other. The evidence did not establish that, from the children’s perspective, the impact on them is ameliorated if the information is true, or if the information helps benefit the wider community.
Following receipt of the single expert recommendations it is apparent that the mother did not agree with the conclusions or recommendations (or alternatively did not interpret them as urging caution in engagement on the relevant topics).
The father took part in a television program and accompanying media commentary in 2021. The mother does not complain that the father spoke negatively about her but rather that she felt obliged to counter his narrative of redemption. In fact she was explicit that the father’s participation in this program spurred her to speak on the record. In the introduction to an interview (Exhibit 30) Ms AA explains that the mother spoke to her of receiving messages on Instagram from other women following the father’s tearful confessions and redemption story on the television show he participated in 2021 and the mother relayed that she had formed the view that if she spoke about the circumstances of her relationship breakdown other women may benefit and that in doing so she would (adopting Ms AA’s words) “take the power back” by telling the story in her own words. The mother frames the narrative as a positive one for her and for the women who follow her story but that is not the focus of the Court’s inquiry.
The participation of both parties in media which touched upon the circumstances leading to the breakdown of their relationship illustrates the media cycle. In speaking about his involvement in the reality program, the father in his affidavit said at [72]: “I accepted this work so that I could do what I could to ensure that what is in the public domain, and therefore the impact of [Ms Hartley], her servants and agent’s actions on my children both now and in the future, are lessened to the extent that I can do so”. The message in the father’s media engagements was about contrition, apology and remorse but his explanation for his motivation seems to be to have an impact on the public narrative. Leaving aside the motives of either party – the engagement of one prompts the engagement of the other and a willing media creates a perpetual news cycle.
The mother says in her interview (Exhibit 30) that she watched no more than 15 seconds of “one of the initial interviews” of the father’s show which she perceived to be a “sanitised confession” with “a serious lack of responsibility by the media” prompting her to again seek to reframe the public narrative about the parties’ relationship and its breakdown.
The parties’ engagement with the media following the release of the single expert report led to the ICL’s application before McClelland DCJ when his Honour made orders as follows on 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.
With the orders of McClelland DCJ in operation the mother’s engagement with the media continued such that the father approached the Court for amendments to the existing orders when the matter was before me on 20 September 2022 and I made orders as follows:
THE COURT ORDERS THAT:
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.
It is important to examine the media interactions at and since the making of the injunctions since they underpin one of the single expert’s observations.
In 2021 prior to the injunctions issued by McClelland DCJ, a newspaper published an article. The authors of that article were the same as the 2020 article and Ms BB is someone the mother has identified as a friend.
As previously stated, the function of this hearing is not to determine whether in fact the conduct occurred but to focus on the impact of statements, on the parties’ children in the short, medium and longer term.
The mother recorded an interview with Ms AA (discussed above). It is not plain when the interview happened but the interview was released after the injunctions were issued by McClelland DCJ. The mother explained there was a “fairly quick turnaround” between the interview and the release of the interview.
I have listened to the interview, which was tendered in its entirety in reliance upon the submission of senior counsel for the respondent that it is necessary to consider the matters which the applicant says concerned him in the context of the whole interview. I accept that submission. I accept that the interview is not wholly or even primarily concerned with negative information concerning the father.
That said, the portions which the father has highlighted as causing him concern should be reviewed. Ironically, in the interview which Ms AA conducted with the mother, the mother said to Ms AA: “I knew I wanted my relationship with [Mr Hartley] to be private.” The mother's evidence never explicitly addresses when it was that her view in that regard changed or whether she specifically turned her mind to the impact of changing that position on the two children of the parties.
One of the matters which the father’s senior counsel highlighted in submissions is the concern that when interviewed the mother has alluded to being unable to speak freely about matters about which she wishes to speak freely. In context this appears to be her averting to the existence of prohibitions created by law (either s 121 or s 68B of the Act). The inference seems to be that if she were not so restrained then she would speak more freely. In Ms AA’s interview the mother said to the interviewer “there is still a lot of things I'm unable to speak about that I would like to be able to one day or I have to weigh up whether that's in my children's best interests.” At the time the mother made that comment to the interviewer she had the benefit of the single expert’s report which fairly firmly stated an expert opinion to the effect that publicly speaking about the breakdown of the relationship between the parents was not in her children's interests. In a similar vein, in the same interview, the mother said “I'd love to be able to explain some of the specifics and some of it I just can't [explain] yet. I'm unable to.” And still further: “The biggest thing is not staying silent. I might not be able to speak about it as much as I would like...” These comments signal in fairly strong terms a desire on the part of the mother to speak more freely. It is against this background that the ICL and the father seek the restraints that they do.
The interview with Ms AA canvassed the father’s agreed infidelity within the marriage in some detail. The mother said that “gaslighting” was “such a huge part of my relationship [with the father]”. The mother referred to the fact that “other women had not seen terms like “gaslighting and coercive control in a relationship in the public eye”.
There is an obvious tension involved in considering an application to prevent an adult from discussing any issue publicly. That tension is perhaps greater where the person involved is arguing that her contribution to the public discourse may be productive and useful for others. But even in these circumstances the task is to weigh that against the need to protect the subject children.
In 2022 there was an article in another news publication. The article went over allegations which had appeared in the media previously but was squarely focused on the parties’ parenting dispute.
In 2022 the mother’s podcast was released. In the first episode of that podcast the mother is interviewed by the journalist Ms BB who had been responsible for the earlier articles. In the podcast she is described as one of the mother's closest friends. The mother says: “I would like to tell my story” and repeats the background which led to the article. The mother told Ms BB that she remembered “being in that house watching the person I loved lose his mind…” and repeated the material relating to infidelity and drug use. The podcast includes the observation there is an epidemic in our country being that women are afraid in their own homes which, in context, is plainly a reference to the mother's personal experience. She speaks in that podcast about being believed and validated and repeats that the father’s “redemption story” was a powerful motivator in her telling her own story.
In that interview the mother says “one day my children may be able to look back at this time and there are so many headlines and there are so many stories that I simply cannot control… I needed to own my narrative…”
There is a suggestion, from time-to-time overt, that the mother's motive in telling her story is to provide a detailed narrative for her children and set an example for her children. Senior counsel for the father in cross examination asked the mother whether she had considered that providing information to the media may not align with the interests of her children the mother responded: “I think they do align”. When asked whether she thought that it was a gross invasion of X's privacy that these things were published about her parents she said: “no I don't”. When asked whether she thought it would have a negative impact on the children in the future she said: “I am proud of what I did …I don't think it will have a negative impact on my children. In time [they] will be given as much information as I can possibly give them”.
At a later point in the mother's cross examination she was asked whether or not she thought there was a benefit to the children in the interview she had provided to the newspaper in 2021. In response she said: “In future I think there will be a benefit”.
When the mother was asked what the benefit was she said that the children would have “a more whole understanding of a really complex and traumatic and horrific time that we went through…”. When asked why the children need a “whole understanding” the mother responded: “… in future we will be able to have discussions about what happened, what went on…”
It was put to the mother by senior counsel for the father that such discussions can occur without the necessity for either party to speak to the media. The mother responded that the children will be able to see that their “mum had a voice and a perspective and she wasn’t silenced…”
When cross-examined by the counsel for the ICL the mother was asked whether or not her experiences of the relationship with the father (and her wanting to ensure that the children had an understanding that “they came from love”) made it more important that the parents stay out of the public domain with negative comments. She responded: “ideally yes – but that is not the example I want to set for my daughter”.
One of the themes of the single expert evidence was that either of the parents sharing any narrative with the media was likely to rekindle the media's interest in their family and the family circumstances. This is borne out by the evidence. In 2022 following the release of the mother’s podcast an article appeared in a news publication. The article referred to the mother's comments regarding “gaslighting” on a recent podcast. The mother herself accepted that her making comments could revive media interests in previous allegations.
The single expert’s oral evidence did not waiver from the conclusion that engagement with the media by either parent on topics related to the parties’ relationship would be contrary to the children’s interests.
The written outline of submission on behalf of the mother argued that the single expert report conclusion was without foundation. I do not share that view. In cross-examination by counsel for the ICL the single expert expanded on his reasoning by reference to his expertise commenting that it was well understood that exposure to parental denigration is detrimental to the security of attachment relationships. It was the expectation of the single expert that as the children grew older their exposure to media and social media would increase (as would that of their peers).
In the single expert’s oral evidence he identified the risks associated with the children encountering negative comments by one parent about the other in media or social media. One of these risks was that the children’s relationship with one or both parents may be impacted
The single expert was asked specifically about [309(v)] of his report and the impacts of exposure to negative comments by one parent about the other on the children’s psychological development. He said that it was important for both parents to understand that a core part of the child’s identity relates to the other parent – if either parent is denigrated, the child is personally effected. Some of the potential effects on the children noted by the single expert included impact on capacity to trust, to form relationships in the future and impact on their basic sense of security within themselves. He also noted it may present an intergenerational effect in terms of their own approach to parenting in due course.
The father was challenged, by senior counsel who appeared on behalf of the mother, that he was more concerned with protection of his reputation than protection of the children. He denied it. I accept that if the injunction was sought to protect the father’s reputation then it would be unlikely to satisfy the requirements of s 68B of the Act. However, the mere fact that an injunction which, the evidence establishes, is necessary to protect the welfare of the children might simultaneously function to protect the father’s reputation would not rob the injunction of its utility.
To argue, as senior counsel for the mother did, that there is already substantial negative material available in the public sphere ignores the gravamen of the single expert opinion – that is, that negative material which comes directly from one parent about the other parent has a far greater likelihood of creating a detrimental outcome for the children than material which originates from an unrelated third party. The single expert’s evidence was to the effect that the communication of a parent is very powerful and very different from third party commentary because children identify with their parents as trusted figures. Hearing negative information about the other parent directly or indirectly from your own parent is likely to have a “more profound impact” in his view.
The single expert discussed the impact of hearing negative material from one parent about the other and identified potential confusion for the children. If the negative information or impression is contrary to their own experiences he opined it places the children in a challenging position from a cognitive point of view, with the potential to create cognitive dissonance and render them more vulnerable to emotional distress and problems with their mental health.
If anything, the cross-examination of the single expert strengthened the evidence about the risks involved in allowing the parents to speak freely (if “freely” included a negative message about the other parent). The single expert emphasised that efforts to correct the record threatened to bring the debate back into the present tense for the children. The children are entitled, in his view, to be shielded, as far as is possible, from the debate as between their parents – which certainly included, in his view, restraining them from adding negative information about the other parent to the public debate.
To the extent that it was put to the single expert that the mother’s parenting capacity might be enhanced by her being permitted to speak more freely, the single expert indicated he saw no evidence to support the conclusion that the mother’s parenting capacity had been harmed or would be harmed by the making of injunctions.
The fact that these parties (and the children) have lived and may continue to live their lives in the public eye makes it more important -not less important- that neither parent speak negatively about the other publicly. As compared to people outside of the public eye, here there is a far greater likelihood that the parties’ commentary will be picked up by the media and a far greater likelihood in those circumstances that it will come to the attention of their children either directly or indirectly or both.
Impact of injunction on parties
The father seeks that the injunctions continue. If he perceives there to be a disadvantage to him he does not address it. The mother on the other hand points to a potential impact on her career. In the single expert’s report he records:
231. [Ms Hartley] explained that her engagement in social media related to her work. In […] 2021, she had been interviewed for [a] magazine in an article about self-worth […]. [Ms Hartley] asked, “Am I being questioned about my job now?” The articled in [the magazine] did not mention [Mr Hartley] as the focus was on her self-worth. She explained, “These proceedings hadn’t been raised.”
The submissions of the mother at [3] of her case outline contended the impact of the restraint on the mother “will be substantially and disproportionately more onerous given her profession”. From the mother’s affidavit material I interpret that submission as advancing the position that the style of media that the mother is currently pursuing involves her drawing upon her own story with interviewers and with people she is interviewing – either to build rapport or authenticity.
The existence of the injunctions has not prevented the mother from working. She accepted she has “never stopped working”. At the conclusion of the proceedings there was no objective evidence by which I could conclude that the existence of the injunctions (which have been in place while she has been recording her podcasts and posting to her social media) have had an impact on the mother’s income and earning capacity. I pause to note that where the rights of the children come into conflict with those of an adult the authorities provide that those of the children would prevail: see U v U (2002) 211 CLR 238 at 262 per Gummow and Callinan JJ.
It is in this context that I regard the position adopted by the mother as failing to appreciate the context in which the litigation is taking place. Her junior counsel’s submissions said at [4] in the mother’s case outline, in reliance on dicta from Chaoping (Steve) Chu v Da Cheng (Eddie) [2021] NSWSC 956 at [11] and [20]: “[t]he public interest in free speech is a “foremost consideration” in this field, and the authorities “give primacy to the concept of freedom of speech.” But, these proceedings take place in a different “field” where the authorities give primacy to a child’s right to be protected from potential psychological harm which may flow from being exposed to negative commentary emanated from one parent about the other.
Terms of the injunction
On behalf of the mother it was submitted that the manner in which the orders sought to be made as final injunctive relief were drafted was too ambiguous. Ambiguity in the terms of the injunction would not assist the parties (or the children) and may well be productive of further conflict (and perhaps litigation).
This issue has plagued the history of this litigation and I accept the principle discussed by McClelland DCJ in Hartley & Hartley [2021] FedCFamC1F 178 at [26] where, citing Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] KB 87 at [95], he said: “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’”.
I also accept, unreservedly, that while the Court has the power to make the injunctions as sought the orders should be framed to impose no greater obligation than the objects of the Act require: see Sampson & Hartnett (No 10) (2007) FLC 93-350 at [31], [33], [46] and [58].
The father attached to his affidavit pictures from the mother’s social media which he was concerned may be interpreted as comments about the relationship between the mother and the father. In isolation the mother’s senior counsel is probably correct in saying that a picture of the mother’s desk, with the book “See What You Made Me Do” (a book about domestic violence) could not, without more, be seen as a comment about the father. In a similar vein – the mother providing a link on her social media to “Charmed and Dangerous: a woman’s guide to reclaiming a healthy relationship” and link to publications.legalaid.NSW.gov.au is not on its face a negative comment about the father. However, the mother’s social media does not occur in a vacuum. She has been public about relating to other women who have experienced violence and about providing them with a voice.
I accept that the social media posts the father identifies would not breach the injunction which is in place and I note that he made no application that the mother be dealt with for breach or contravention. I accept that neither parent should feel constrained to speak about social issues – or in the example discussed above, share useful information. It is the personal references to the experience of the mother with the father (and vice versa) that tell the public (for example, the children’s schools, friends and community) negative information about the children’s other parent that pose the risks identified by the single expert. Accordingly, it is appropriate that the orders include the notation which was made by McClelland DCJ.
I do not think there is any inherent ambiguity in the expression “negative or derogatory statements” and take the view that the notation assists to guide the parties to take an objective approach to the interpretation.
I accept that the original interlocutory order 12 was too broadly drawn to be sustainable as a final order and accordingly I will limit the classes of persons who the parties should use their best endeavours to dissuade from negative media engagement about the other parent to persons known to the parents personally: friends and family members.
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.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 September 2023
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