Murray and Murray (No 4)

[2019] FamCA 984

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY (NO. 4) [2019] FamCA 984

FAMILY LAW – PROCEDURAL – Application for suppression where the Commissioner for Police asserts that the suppression of the publication of evidence and findings made in judgments connected with property settlement proceedings is necessary to prevent prejudice to a criminal trial in respect of a third party referred to in the evidence and the findings – Whether further anonymisation of the judgments would be sufficient and whether the publication of the entire judgments should be suppressed – Where a request is made to the court’s publication officer to anonymise the orders and reasons for judgment – Where the matter is adjourned for further consideration

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Commissioner of Police, NSW Police Force

RESPONDENT: Mr Murray

RESPONDENT: Ms Murray

FILE NUMBER: SYC 5665 of 2014

DATE DELIVERED: 17 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Makinson d'Apice Lawyers

SOLICITOR FOR THE RESPONDENT: Husband in person

SOLICITOR FOR THE RESPONDENT: Wife in person

Orders

1. Pursuant to s 102PH of the Family Law Act 1975 (Cth), an interim suppression order is made in relation to the orders and Reasons for Judgment delivered 11 October 2019 and the two sets of orders and Reasons for Judgment delivered 18 November 2019.

2. A suppression order be made in relation to any of the evidence given during the proceedings, including affidavits, exhibits and transcripts of the oral evidence subject to the following provisos:

   a)   The wife be at liberty to provide to any financial institution and/or any real estate agent, copies of orders made for the purposes of her discussing with that financial institution(s) and real estate agent(s) the implementation of those orders;

   b)     The husband and/or the wife obtaining a transcript of the oral evidence given during the proceedings and providing a copy of that transcript and any other evidence in the proceedings to any person from whom they are obtaining professional legal advice and otherwise, using that material during the conduct of any appeal from the final property settlement order.

3. A request is made to the court’s Publication Officer to anonymise the Orders and Reasons for Judgment as soon as practicable and that the Registrar provide those Orders and Reasons for Judgments to the Commissioner for Police as soon as practicable.

4. The Commissioner for Police is within a period of 7 days after receipt from the Registrar of the anonymised version of the Reasons, to file and serve any further evidence upon which the Commissioner seeks to rely including addressing the issue as to why anonymisation of the judgments is not sufficient and whether or not publication of the entire judgments should be suppressed.

5. This matter be listed for further hearing on 31 January 2020 at 10 am.

6. Until further order, I suppress these ex tempore Reasons for Judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5665 of 2014

Commissioner of Police, NSW Police Force

Applicant

And

Mr Murray

Respondent

And

Ms Murray

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Commissioner of Police, NSW Police Force has made an Application in a Case pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) for information in these proceedings to be suppressed until the matter of R v Mr A, which involves criminal charges against Mr A and which is listed for hearing in the District Court of NSW commencing in 2020 and including any appeal, are concluded.

2. Amongst other things, Mr A has been charged with knowingly dealing with the proceeds of crime with the intent to conceal $4,131,000 in cash pursuant to s 193B(1) of the Crimes Act 1900 (NSW).

3. The trial of Mr A involves various allegations in relation to a number of cash deposits made by Mr R and/or the husband, at various financial institutions between March 2015 and June 2016.

4. The Commissioner of Police relies upon s 102PF(1)(a) of the Act to found the application. That section provides that a court may make a suppression order if “the order is necessary to prevent prejudice to the proper administration of justice”.

5. On 11 October 2019, I made orders for the production of documents by the NSW Police Force and for the attendance of Mr R to give evidence. The NSW Police Force originally indicated they had no documents to produce. Subsequently, Mr R’s police statement was obtained from the District Court of NSW together with a transcript of his evidence. Mr R attended court and was cross examined. Following that court event in which submissions were made in relation to the reopening of the case and its effect on the final property settlement order, the NSW Police Force informed the Court that they had made an error and that they had approximately 3,000 documents that they should have produced pursuant to the order that I had made. The wife chose not to further pursue the matter by a further reopening of the case and final judgment was delivered.

6. The application that the Commissioner of Police made is to prevent the risk of prejudice to the criminal trial of Mr A from disclosure of any findings or considerations by myself of the evidence in relation to any cash deposits made by Mr R and/or the husband at any financial institution in 2015 and 2016.

7. There are three judgments that were published and three sets of orders made in this matter that are relevant to the current application by the Commissioner of Police. The first is a judgment delivered on 11 October 2019 which, amongst other things, directed the NSW Police Force to produce the relevant documents. That judgment refers to proceedings in the District Court relating to a criminal trial in which Mr R publicly gave evidence as to the involvement of himself and the husband in transactions which are the target of the Commissioner of Police’s application for suppression.

8. The second judgment was made on 18 November 2019 and granted the wife leave to reopen the case and to adduce further evidence in that case, namely, Mr R’s statement made to the NSW Police Force; a transcript of his evidence in the District Court and Mr R’s oral evidence before me given on 28 October 2019. The reasons for granting that leave were published on 18 November 2019 and contain information in relation to the matters of which the Commissioner of Police seeks suppression.

9. Thirdly and also on 18 November 2019, a final judgment was delivered in the proceedings between the husband and wife for a property settlement order. Again, that judgment contains some references to the subject matter of the application made by the Commissioner of Police.

10. Ms Hartcher, on behalf of the Commissioner of Police, today informs the Court that the Commissioner has not seen any of the orders or judgments.

11. Part XIA of the Act deals with the suppression and non-publication of information.

12. Section 102PD of the Act provides that in deciding whether to make a suppression order, the court concerned must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

13. In proceedings under the Act, s 121 restricts the publication of court proceedings in a way that would identify a party to the proceedings; a person who is related to or associated with a party to the proceedings or witnesses in the proceedings. Section 121(3) of the Act provides examples of those types of things that cannot appear in a published judgment in proceedings under the Act. However, the Court since 2007 has anonymised judgments so that the public can see in an open way how justice is administered under the Act, without identifying information that would reveal the identity of parties to the proceedings.

14. Rule 5.19 of the Family Law Rules 2004 (Cth) (“the Rules”) relates to applications for a suppression or non-publication order and is as follows:

    An applicant for an order to suppress publication of a judgment must file an affidavit that sets out evidence relating to the following:

    (a)the public interest in suppressing or not suppressing publication;

    (b)why further anonymisation of the judgment would not be sufficient;

    (c)whether publication of the entire judgment should be suppressed or only part of the judgment;

    (d)whether publication should be suppressed in one medium or in all media;

    (e)whether a summary of the judgment should be made publicly available if publication of the judgement is suppressed;

    (f) one or more of the grounds, mentioned in subsection 102PF(1) of the Act, on which the application is made.

    Note: The Court anonymises all judgments in accordance with the requirements of section 121 of the Act.

15. In her affidavit in support of this application, Ms Hartcher has not addressed the requirements of r 15.19(b) and (c) of the Rules. That is understandable, given that the Commissioner of Police has not had access to the orders and the Reasons for Judgment.

16. In order for me to receive that evidence from the Commissioner for Police, I intend to request that the Court’s Publication Officer as soon as practicable, anonymise the judgments and that the Registrar provide those judgments to the Commissioner for Police and I will adjourn this matter to further consider the evidence of the Police.

17. Further, Ms Hartcher has indicated today that the Police want to file further evidence in support of their application.

18. The wife has indicated that she has communicated with the Commissioner of Police’s representatives and they are content for her to be able to show material to financial institutions so that, in particular for example, she could put herself in a position to comply with paragraph 3 of the property settlement order. The husband has indicated today that yesterday he filed an appeal against the property settlement order made 18 November 2019. He will need to be in a position to obtain transcripts of the evidence and so will the wife, in order to prosecute that appeal and he will need to have access to the Court file and material on the Court file, including exhibits.

19. For those reasons, I will make the following orders:

    a)Pursuant to s 102PH of the Act, an interim suppression order is made in relation to the orders and Reasons for Judgment delivered 11 October 2019 and the two sets of orders and Reasons delivered 18 November 2019.

    b)A suppression order be made in relation to any of the evidence given during the proceedings, including affidavits, exhibits and transcripts of the oral evidence subject to the following provisos:

    i)The wife be at liberty to provide to any financial institution and/or any real estate agent, copies of orders made for the purposes of her discussing with that financial institution(s) and real estate agent(s) the implementation of those orders;

    ii)The husband and/or the wife obtaining a transcript of the oral evidence given during the proceedings and providing a copy of that transcript and any other evidence in the proceedings to any person from whom they are obtaining professional legal advice and otherwise using that material during the conduct of any appeal from the final property settlement order.

    c)A request is made to the court’s Publication Officer to anonymise the Orders and Reasons for Judgment as soon as practicable and that the Registrar provide those Orders and Reasons for Judgments to the Commissioner for Police as soon as practicable.

    d)The Commissioner for Police is within a period of 7 days after receipt from the Registrar of the anonymised version of the Reasons, to file and serve any further evidence upon which the Commissioner seeks to rely including addressing the issue as to why anonymisation of the judgments is not sufficient and whether or not publication of the entire judgments should be suppressed.

    e)        This matter be listed for further hearing on 31 January 2020 at 10 am.

    f)        Until further order, I suppress these ex tempore Reasons for Judgment.

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 December 2019.

Associate: 

Date:  19.12.2019