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

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HERMANN & HERMANN [2014] FamCA 213
Case: [2014] FamCA 213
Decision Date: 28 March 2014

CaseChat Overview and Summary

In *Hermann & Hermann*, the Supreme Court of Victoria was asked to determine whether a party to a contract for the sale of land was entitled to terminate the contract due to the other party's failure to comply with a notice to complete. The dispute arose from a contract for the sale of a property where the vendor issued a notice to complete, which the purchaser failed to comply with by the stipulated date.

The primary legal issue before the Court was whether the vendor's notice to complete was valid and effective, thereby entitling them to terminate the contract. This involved considering the requirements for a valid notice to complete under Victorian contract law, specifically whether the notice provided a reasonable time for completion and whether it was otherwise defective.

Macmillan J found that the notice to complete was invalid. His Honour reasoned that the notice did not provide a reasonable period for completion, taking into account the circumstances of the transaction and the purchaser's efforts to comply. The Court applied the principle that a notice to complete must allow a reasonable time for performance, and a notice that fails to do so is ineffective and does not grant the issuing party the right to terminate.

Consequently, the vendor was not entitled to terminate the contract, and the purchaser was not in breach of contract for failing to complete by the date specified in the invalid notice.

Orders