HERMANN & HERMANN

[2014] FamCA 213

FAMILY COURT OF AUSTRALIA

HERMANN & HERMANN [2014] FamCA 213

FAMILY LAW – INJUNCTION – Where the husband seeks mutual restraints on the parties discussing with the media or publishing material about the proceedings, the marital situation, the parties’ separation, the children and the parties individually or their family – where restraining orders have already been made by consent in relation to publishing material about the children – where there is significant and ongoing media interest in the parties – consideration of whether the proposed injunction is a restatement of s 121 or that special circumstances exist – consideration of a party’s freedom of expression – where the husband says the restraints are necessary to protect his reputation and income earning potential – where the wife says the proposed restraints are unnecessarily wide and oppressive – where the wife says the injunctions already in place are sufficient protection – consideration of the phrase “the marital situation” – finding that the proposed injunctions are necessary to protect the children’s best interests – no order made restraining the parties from discussing the marital situation – injunctions to expire in three years.

Family Law Act 1975 (Cth) s 121

Re Schwartzkopff (1993) FLC 92-381
Sitwell & Sitwell [2014] FamCAFC 5

APPLICANT: Mr Hermann

RESPONDENT: Ms Hermann

FILE NUMBER: MLC 4873 of 2012

DATE DELIVERED: 28 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES: 10 – 13 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC with Ms Vohra

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Glick SC with Mr Holmes

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

ORDERS*

IT IS ORDERED THAT

1. The husband, his servants and/or agents, without the express, prior written consent of the wife, be and are hereby restrained from:

   a)   Discussing with any member of any media organisation:

   (i)these Court proceedings;

   (ii)any other proceeding involving the husband, the wife or the children;

   (iii)the circumstances of the parties’ separation;

   (iv)the current or proposed care arrangements for the children;

   (v)the wife;

   (vi)the wife's family members or any of them.

   b)     publishing material in any form about:

   (i)these Court proceedings;

   (ii)the circumstances of the parties' separation;

   (iii)the current or proposed arrangements for the children;

   including but not limited to publishing material on any of Twitter, Instagram or any other social media site and posting or uploading photographs of the children or either of them on any of Twitter, Instagram or any other social media site save as provided in paragraph 28 of the orders made 13 February 2014.

2. The wife, her servants and/or agents, without the express, prior written consent of the husband, be and are hereby restrained from:

   a)   Discussing with any member of any media organisation:

   (i)these Court proceedings;

   (ii)any other proceeding involving the husband, the wife or the children;

   (iii)the circumstances of the parties’ separation;

   (iv)the current or proposed care arrangements for the children;

   (v)the husband;

   (vi)the husband’s family members or any of them.

   b)     publishing material in any form about:

   (i)these Court proceedings;

   (ii)the circumstances of the parties' separation;

   (iii)the current or proposed arrangements for the children;

   including but not limited to publishing material on any of Twitter, Instagram or any other social media site and posting or uploading photographs of the children or either of them on any of Twitter, Instagram or any other social media site save as provided in paragraph 28 of the orders made 13 February 2014.

3. These orders will remain in force until 1 April 2017, save and except if either or both of the parties file an application in a case supported by an affidavit seeking an extension of the orders.

4. The husband’s amended initiating application filed 21 August 2013 be otherwise dismissed.

*These orders have been amended where underlined to accord with the orders as pronounced by Justice Macmillan on 28 March 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hermann & Hermann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4873 of 2012

Mr Hermann

Applicant

And

Ms Hermann

Respondent

REASONS FOR JUDGMENT

1. On 12 February 2014 I made orders that finalised the financial relationship between the husband and the wife. The following day, I made final parenting orders leaving outstanding the determination of what remained of the parties’ competing proposals for injunctive relief.

2. During the course of these proceedings both the husband and the wife have consented to mutual restraining orders being made, albeit that the terms and scope of the injunctions have been amended and refined as the matter has progressed.

3. On 26 June 2012 orders were made by Chief Justice Bryant, inter alia, by consent as follows:

   That the husband and his servants and agents are hereby restrained from:

   (a)causing the children to participate in any media article, photograph, broadcast or other media coverage or activity without the express, prior written consent of the wife[;]

   (b)discussing these Court proceedings, the marital situation, the circumstances of the parties’ separation, the current or proposed care arrangements for the children, with any member of any media organisation without the express, prior written consent of the wife[;]

   (c)publishing material in any form about these Court proceedings, the marital situation, the circumstances of the parties’ separation, the current or proposed care arrangements for the children, including but not limited to publishing material on Twitter or Facebook[;]

   (d)providing to any media organisation photographs of the children, photographs of the former matrimonial home or photographs taken by the Victoria Police in connection with Magistrates’ Court of Victoria proceedings numbers … or …[;]

   (e)denigrating the wife or her family members to the children or within the presence and/or hearing of the children and from allowing the children to remain in the presence and/or hearing of any third party engaging in such behaviour[;]

   (f)discussing these Court proceedings in the presence and/or hearing of the children and from allowing the children to remain in the presence and/or hearing of any third party engaging in such behaviour.

4. On 15 April 2013 I made orders, which were subsequently amended under the slip rule, by consent as follows:

   That the husband and his servants and agents are hereby restrained from:

   (a)causing the children to participate in any media or social media article, photograph (including but not limited to photographs of the children or either of them posted or uploaded to any of Twitter, Instagram or Facebook or any other social media site), broadcast or other media coverage or activity without the express, prior written consent of the wife;

   (b)discussing these Court proceedings, the marital situation, the circumstances of the parties' separation, the current or proposed care arrangements for the children, with any member of any media organisation without the express, prior written consent of the wife;

   (c)publishing material in any form about these Court proceedings, the marital situation, the circumstances of the parties' separation, the current or proposed care arrangements for the children, including but not limited to publishing material on any of Twitter, Instagram or Facebook or any other social media site, and posting or uploading photographs of the children or either of them on any of Twitter, Instagram or Facebook or any other social media site;

   (d)providing to any media organisation photographs of the children, photographs of the former matrimonial home or photographs taken by Victoria Police in connection with Magistrates Court of Victoria proceedings numbers … or …;

   (e)denigrating the wife or her family members to the children or within the presence and/or hearing of the children and from allowing the children to remain in the presence and/or hearing of any third party engaging in such behaviour;

   (f)discussing these Court proceedings in the presence and/or hearing of the children and from allowing the children to remain in the presence and/or hearing of any third party engaging in such behaviour. (Emphasis in original removed).

5. In each instance there was a mirror order made with respect to the wife.

6. The  orders made by consent on 15 April 2013 were in similar terms to the orders of Chief Justice Bryant save and except that they extended the restraints on the parties to include publishing or posting on social media sites.

7. On 13 February 2014  I made final orders by consent , inter alia, as follows:

   That the husband and his servants and agents are hereby restrained from:

   (a)   save as provided in paragraph 28 herein, causing the children to participate in any media or social media article, photograph (including but not limited to photographs of the children or either of them posted or uploaded to any of Twitter, Instagram) or any other social media site, broadcast or other media coverage or activity without the express, prior written consent of the wife;

   (b)  providing to any media organisation photographs of the children, photographs of the former matrimonial home or photographs taken by Victoria Police in connection with Magistrates Court of Victoria proceedings numbers … or …;

   (c)  denigrating the wife or her family members to the children or within the presence and/or hearing of the children and from allowing the children to remain in the presence and/or hearing of any third party engaging in such behaviour;

   (d)  discussing these Court proceedings in the presence and/or hearing of the children and from allowing the children to remain in the presence and/or hearing of any third party engaging in such behaviour.

8. I made orders by consent in the same terms restraining the wife.

9. In addition the husband seeks a further order on a final basis that is in similar terms to sub-paragraph (b) of the orders made 26 June 2012 and 15 April 2013, as above, as follows:

   The husband and his servants and agents, without the express, prior written consent of the wife, be and are hereby restrained from:

   (a)        discussing with any member of any media organisation:

   (i)these Court proceedings;

   (ii)any other proceeding involving the husband, the wife or the children;

   (iii)the marital situation

   (iv)the circumstances of the parties’ separation;

   (v)the current or proposed care arrangements for the children;

   (vi)the wife;

   (vii)the wife’s family members or any of them[;]

   (b)  publishing in any form about:

   (i)these Court proceedings;

   (ii)the marital situation;

   (iii)the circumstances of the parties’ separation;

   (iv)the current or proposed care arrangements for the children[;]

   including but not limited to publishing material on any of Twitter, Instagram or any other social media site and posting or uploading photographs of the children or either of them on any of Twitter, Instagram or any other social media site save as provided in paragraph 28 of the orders made 13 February 2014.

10. The husband also seeks a mirror order with respect to the wife.

11. The wife opposes the additional injunctive orders sought by the husband and seeks that the husband’s application in this respect be dismissed.

Legal principles

1. Section 121(1) of the Family Law Act 1975 (Cth) (‘the Act’) provides as follows:

   (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;

   is guilty of 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 is guilty of 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.

2. In Sitwell & Sitwell [2014] FamCAFC 5 (‘Sitwell’), to which I was referred by counsel for the husband, the Full Court addressed the question of the circumstances in which the Court might grant an injunction to prevent a threatened or anticipated breach of s 121 of the Act. Having referred to a number of earlier decisions of the Full Court as well as  decisions of judges at first instance, the Full Court in Sitwell said at paragraph 65 as follows:

   Gibb & Gibb [(1978) FLC 90-405 (‘Gibb & Gibb’)] and Re Schwar[t]zkopff [(1993) FLC 92-381 (‘Re Schwartzkopff’)] comprise authority for the proposition that an injunction merely restating the effect of … s 121 [of the Act] is unnecessary and undesirable. Such an injunction should only be granted in special circumstances. The factual circumstances described in Re South Australian Telecasters Ltd and Xuarez & Vitela arguably fell within that category. Clearly, each case must be considered on its merits, but there can be no doubt that the mere fact that the proposed publication of material is likely to contravene … s 121 [of the Act] is insufficient to justify the granting of an injunction to prevent the publication of that material. In our opinion, evidence to the effect that the material to be published is likely to impact upon the welfare or best interests of children may be sufficient to demonstrate “special circumstances”. Similarly, evidence to the effect that the material to be published contains scandalous disparagement of courts or judicial officers which is likely to impair their authority, or serious and baseless attacks on the integrity or impartiality of courts or judicial officers, may also be sufficient to demonstrate “special circumstances”, particularly if it is apparent that the good sense of the community may not amount to a sufficient safeguard against such disparagement. It is unnecessary to provide further examples. The category of circumstances which might fairly be described as “special”, whether individually or in combination with other circumstances, is not closed.

3. The Full Court said further in Sitwell at paragraph 68:

   In our opinion, the injunctive relief sought … merely restated, or restated the primary effect of … s 121 [of the Act]. In the absence of “special circumstances”, therefore, it was unnecessary and undesirable for the Court to grant the relief. No “special circumstances” were identified before Johnston J, and none existed. Similarly, no “special circumstances” were identified before us. It follows that is Honour’s decision to dismiss the wife’s application was entirely proper, and that the appeal must therefore be dismissed.

4. In Sitwell it was submitted at first instance that the power to grant the relief sought by the wife in that case lay in s 114(3) of the Act. On appeal it was submitted that the injunctive relief sought could also be regarded as “an injunction for the personal protection of a party” pursuant to s 114(1)(a) of the Act. The Full Court ultimately held that whatever the source of power for the injunctive relief sought by the wife, her application failed on the basis that she had failed to demonstrate that there were “special circumstances” that would justify a departure from the general principle that an injunction restating the effect of s 121 of the Act is both unnecessary and undesirable.

5. In circumstances where the Court is satisfied that the injunctive relief is either not simply a restatement of s 121 of the Act or that “special circumstances” exist that would justify a departure from the general principles enunciated in Gibb & Gibb and Re Schwartzkpoff, the Court, subject to the source of its power to do so, may make such order in the case of s 114(1) as it considers proper, in the case of s 114(3) as it considers just or convenient, and with respect to s 68B as it considers appropriate for the welfare of the child or children.

Husband’s submissions

1. It was submitted by counsel for the husband that both the husband and the wife in this matter have high media profiles and that there has historically been significant media interest and coverage of their personal lives including their marriage, the birth of their children, and the circumstances leading up to and following the breakdown of their marriage and the proceedings subsequent to that breakdown.

2. I was referred to the husband’s affidavit filed 31 May 2012 in which he set out in some detail the background and history of that media coverage. It was subsequent to the husband deposing to these matters that he and the wife consented to the injunctive orders made on 26 June 2012. Counsel for the husband also referred to there being subsequent media coverage with respect to the husband’s alleged substance abuse and the allegations in relation to the wife’s behaviour.

3. On 4 July 2012 the wife filed an application in a case in which she sought orders enforcing sub-paragraph (c) of the orders made 26 June 2012, to which I have already referred, or, that in the alternative, the husband by himself, his servants and/or agents be restrained by injunction “from discussing and/or publishing any material in any form in relation to his use of [prescription medication] during the course of the marriage”, and from “discussing and/or publishing any material in any form in relation to the alleged use by the wife of any prescription medication during the course of the marriage”.

1. The wife in support of that application relied upon her affidavit filed 4 July 2012, in which she said at paragraph 4 as follows:

   I was distressed to read that the husband gave an interview in relation to his misuse of [prescription medication] which received extensive Australia wide coverage in newspapers and other forms of media [in] July 2012 … My distress arose out of the concern that I have as to the impact of such articles upon the welfare of our children and the husband’s apparent indifference or lack of insight as to such impact[.]

2. The wife further deposes in paragraph 6 of that affidavit as follows:

   The reason for me filing my current Application in a Case is that I am concerned that any publicity generated by the husband and/or his parents will have an adverse effect on the children. The articles which have been published will remain forever on the internet and will always be able to be accessed. When I have previously been in Court I have witnessed that [h]is Honour Justice Cronin and … Senior Registrar Fitz[G]ibbon as well as [h]er Honour Chief Justice Bryant have stressed that the parties should be very conscious of the adverse effect of damaging publicity on the welfare of the children and should refrain from talking to the press about matters connected with the proceedings between us.

3. The husband, in support of his application for the continuation of the media restraints and the extension of those restraints to include Facebook, Instagram, Twitter and other social media sites, deposes in his affidavit filed 25 November 2013 that whilst he was “aware that the press cannot publish details of these proceedings, the fact remains that almost every Court event has been followed by some sort of media commentary.”  

4. It was submitted on behalf of the husband that the wife’s only response to his application was to deny the necessity for final orders which prohibited both herself and the husband posting images of the children on their respective social media sites such as Facebook, Twitter and Instagram, and that she was otherwise agreeable to not including or giving permission for the inclusion of any images of the children on any forum, in any magazine or other published article, paid or otherwise, which has the effect of promoting herself or the husband.

5. It is the husband’s case that the injunctions he seeks are necessary to protect against damage to his reputation and the effect that might have upon his income earning potential and how that might impact upon both he and the wife and the children. Counsel for the husband also submitted that I should have regard to the adverse effect of the media coverage upon the welfare of the children, which was also the basis of the wife’s application in a case filed 4 July 2012. 

Wife’s submissions

1. It was submitted by counsel for the wife that the proposed injunctions were unnecessarily wide and oppressive and impinged on what counsel said was the wife’s “constitutionally guaranteed freedom of expression” and that such an injunction would be unenforceable because of its width.

2. Counsel for the wife submitted that the wife would be precluded on the basis of the proposed injunctions from even describing herself as married or separated or from saying that she had been “involved in an unhappy marriage”.

3. It was further submitted that the parties and the children would be sufficiently protected by the orders that were made on a final basis by consent on 13 February 2014.

The issues

1. Although counsel for the husband emphasised the fact that the wife had previously consented to orders in terms almost identical to those the husband now sought, I do not consider that to be determinative of this matter. I must consider the appropriateness of the orders sought as at the date of the hearing and on the basis of the evidence before me.

2. I am also not persuaded by the submission that I should not interfere with what the wife’s counsel described as her “constitutionally guaranteed freedom of expression”. There is no such guarantee in our Constitution nor is there any legislation enshrining a general right to freedom of expression.

3. As Kirby J said in ThomasvMowbray [2007] HCA 33 at paragraphs 379 and 380:

   International Law also safeguards individual rights to privacy and respect for family life; to freedom of expression and association; to freedom of movement; and to a fair hearing in the determination of one’s rights and obligations … The foregoing principles of international law have not been incorporated by municipal law into federal law in this country. However, that does not mean that the principles are irrelevant to the functions of the courts.

4. The court is faced with similar considerations with respect to the right of a party to freedom of movement and there have been many cases in this Court in which the best interests of children have impinged upon the freedom of movement of one or both of their parents. Although the wife’s right to freedom of expression is a matter I can and, in my view, should consider, it does not follow that it should not or cannot be curtailed when there are proper reasons for doing so. I am satisfied that when necessary to protect the best interests of children it may be necessary to curtail a parties’ freedom of expression.

5. In my view, the injunctive relief proposed by the husband is not simply a restatement of the provisions of s 121 of the Act. The orders sought by the husband go well beyond the proceedings themselves, which, subject to this remaining issue, have been concluded. The injunctive orders sought by the husband, in comparison to the orders to which the wife has already consented and which she submits are sufficient, are directed at not just information with respect to the children but with respect to the parties themselves. Even if I am wrong, I am satisfied that in this case there are special circumstances which make it appropriate to grant the injunctions sought by the husband.

6. It is not disputed that there has been significant media coverage of these parties and the circumstances of their separation which have led to what have been lengthy and acrimonious proceedings in this Court. Both parties have complained as to the intrusiveness of that media coverage in their lives and, more significantly, as to the detrimental effect of that media coverage on the welfare of their children. The media’s interest in the parties and the children in this case has continued unabated for what is now almost three years and it seems likely that it will continue. I note that on the date that I was asked to make the final orders and heard submissions in relation to this application that there was a journalist present in the body of the courtroom.

7. I am satisfied that I have the power to make the orders sought by the husband pursuant to s 68B of the Act in order to protect the best interests and welfare of the children in this case or, in the alternative, pursuant to s 114(3) of the Act if I am satisfied that it is just or convenient to do so.

8. The difficulty that I see in this case is that prosecution after the event for the publication of material in relation to these proceedings or the parties and the children generally is, in the context of the children’s best interests, like, as counsel for the wife put it, “shutting the gate after the horse has bolted”, albeit it was counsel’s submission that the proverbial horse in this case has already bolted.  

9. In this day and age information which is published or broadcast is almost immediately available on the internet and almost impossible to remove. Although the children in this case are still only very young it will no doubt not be long before they, like most children these days, are accessing information on the internet.

10. I am satisfied that there is a significant risk to the welfare of these children in circumstances where both the husband and the wife have at various times either been sought out by or have themselves courted the media.  It is also the case that the media interest in these parties and their children may be ongoing and may not necessarily be limited to these proceedings and their subject matter. I am not satisfied that the order proposed by the wife, which is directed primarily to publication of information in relation to the children, provides sufficient protection for their welfare. It is my view that it is the information about the children’s parents themselves and having their parents discuss each other in the media that may be the most damaging to these children, not just the possible mention of the children directly. I am satisfied it would not be in the children’s best interests for them to be exposed to information about their parents, their lifestyles, the unhappy breakdown of their marriage or whatever else their parents may wish to publicly ventilate in relation to each other. The fact that there may already be information that the children can access does not in my view lead to the conclusion that the parties should not be restrained in order to prevent further material being published.

11. However, notwithstanding the wording of the previous restraining orders, I accept counsel for the wife’s submissions with respect to the inclusion of the words “the marital situation”. This phrase that has been used in the past and is now proposed by the husband to be used on a final basis is, in my view, uncertain and unnecessarily wide.

12. Insofar as such discussions might include the details of the circumstances leading up to the separation and/or the subject matter of the proceedings that is prohibited in any event by the wording of the proposed order. I agree that, for example, both the husband and the wife should be permitted to discuss their marital status and say “I am divorced”, which might arguably be a breach of an order which restrained them from discussing their marital situation. However, neither the husband nor the wife should be under any misapprehension that the exclusion of this phrase would therefore permit them to discuss in detail the intimate details of their marriage or the circumstances which led to its breakdown or, for that matter, the personal details of each other’s lives in the future. Whilst I find it hard to understand why either the husband or the wife would want to discuss the intimate details of their marriage and/or its breakdown with a member of the press, the previous media coverage would suggest that they do not necessarily share the same view. 

13. Although the husband does not identify any immediate threat of media publication or the like, and it is the wife’s case that she does not have any immediate plans for same, both parties in this case would appear to have discussed at different times what might be considered to be personal information with the media.

14. In all the circumstances of this case I am satisfied that it is appropriate  in the best interests of the children to make the orders sought by the husband but excluding the restraint on the parties from discussing “the marital situation”. I accept counsel for the husband’s submission that if the wife wishes to discuss or promote her career that the proposed orders would not preclude her from doing so. It is also open that in the event that either of the parties wishes to discuss these matters with a member of any media organisation or publish any material in relation to any of the matters that are the subject of these restraining orders, that they may seek leave to do so, either by obtaining the written consent of the other party or by way of formal application.

15. However, I also accept counsel for the wife’s submission that an order of this kind should not be permanent. Whilst it will always be possible for the children in this case to access media coverage of their parents, both past and present, hopefully interest in them and their parents will either diminish over time or at the very least will be related to more positive aspects of their lives than has been the case over the last few years. On that basis, I propose to make orders that will be discharged after a period of time unless either party brings an application for it to be continued for some further period of time. In my view, an appropriate period is three years and, on that basis, the injunctive orders will remain in force until 1 April 2017.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 28 March 2014.

Associate: 

Date: 27 March 2014