Leishman and Leishman

[2014] FCCA 1931

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEISHMAN & LEISHMAN [2014] FCCA 1931

Catchwords:
FAMILY LAW – Application of wife seeking to publish material suggestive that elements of s.121 of the Family Law Act 1975 offence could be made out – application dismissed.

Legislation:  
Family Law Act 1975 (Cth), s.121

Applicant: MS LEISHMAN

Respondent: MR LEISHMAN

File Number: MLC 5856 of 2011

Judgment of: Judge Hartnett

Hearing date: 18 August 2014

Delivered at: Melbourne

Delivered on: 19 August 2014

REPRESENTATION

The Applicant: In Person

The Respondent: No appearance

ORDERS

1. The Application in a Case filed by the wife on 15 July 2014 is dismissed and the matter removed from the list of cases.

IT IS NOTED that publication of this judgment under the pseudonym Leishman & Leishman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 5856 of 2011

MS LEISHMAN

Applicant

And

MR LEISHMAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by an Application in a Case, rather than an initiating application, filed by the Applicant wife on 15 July 2014.  The matter was listed in the duty list yesterday and I reserved my decision to this day.

2. In support of the application was an Affidavit sworn by the wife on 8 July 2014.  Its contents, the wife relies upon, by way of evidence in the proceedings.  I am satisfied that there was service upon the Respondent husband of the Application in a Case filed 15 July 2014 and supporting Affidavit sworn 8 July 2014. There is filed, an Affidavit of Service together with a signed Acknowledgement of Service, on 6 August 2014.  The wife entered the witness box during the course of the proceeding to identify the signature of the husband on the Acknowledgement of Service filed 6 August 2014. The husband did not appear nor did he seek any orders, for instance by way of injunction, from the Court.

3. The Application in a Case filed 15 July 2014 of the wife sought orders as follows:- 

   “1.  Matter to be heard urgently, original publication date is 3rd July, 2014. 

   2. Seek approval for publication of Court proceedings in my book – (omitted) against s121, Family Law Act.

   3. Seek permission to publish my photo at the back cover of the book, against s121, Family Law Act.”

4. Section 121 of the Family Law Act 1975 (Cth) (‘the Act’) is the pivotal section in a consideration of this application. I set it out here in full 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;

   (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

   (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 26B, 37A, 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.”

5. It would appear that the wife has written a book about, as she describes it in paragraph 6 of her Affidavit sworn 8 July 2014, her:-

   “…recovery journey from family violence...”

6. The wife in her affidavit evidence notes that the purpose of her book is to:-

   “…encourage women and men who experience family violence to seek help...”

7. In paragraphs 7 and 8 of her Affidavit sworn 8 July 2014, the wife says as follows:-

   “7. In the book pseudo names are used for my ex-husband and children, but I am using my real name as the author.  Without knowing the possible obstacles we face, none of us has the courage to seek help unless we are faced with life and death situation. Hence, in the book I did not sugar coated any of my experience. 

   8.  Recovery process is difficult; it is one step forward, three steps back.  It is not like when you leave the relationship that is the end of the problem.  It is very difficult to regain freedom.  Obviously a single mum with two boys, recovery is not a matter about me.  It involves the two children as well.  In that process I have to apply for Intervention Order for protection and to protect the children from emotional abuse, I went through the Family Law Court.”

8. The wife urged upon the Court that it was a matter of public interest that she be permitted to release the details of the proceedings in her case.  In annexure 1 to her Affidavit sworn 8 July 2014, the wife set out some parts of the content of her book.  Those parts were headed:  (1) Events Leading to an Appearance at Family Court;  (2) Preparation for the Family Court Hearing;  (3) The Approach of the Court Date.

9. Section 121 of the Act provides for restrictions on publication of Court proceedings of the type proposed by the wife. The section sets out an absolute prohibition. An offence against the section is an indictable offence. Prosecution cannot be brought in this Court.

10. The inclusion of a photograph of the wife on the back cover of the proposed book, and the noting of the wife as the author of the book is an identifying feature of the wife that would result in some members of the community identifying the two children of the parties, X born (omitted) 1996, and Y born (omitted) 2005. Thus breaches of s.121 of the Act could possibly be made out.

11. The extract annexed to the wife’s Affidavit sworn 8 July 2014 of that part of her book appearing under the heading “The Approach of the Court Date” may well be a distortion of the actual hearing and appears to contain a claim made by the wife of actual bias without the testing of such claim through the normal channels of judicial appeal.

12. There is no public interest element or other matter that would defeat the prohibition set out in s.121 of the Act and accordingly the wife’s application must be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  26 August 2014