Murray and Murray (No. 5) - [2020] FamCA 222

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY (NO. 5)

[2020] FamCA 222

FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and non-publication orders – orders pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) Family Law Act 1975 Cth)

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

2014

DATE DELIVERED:

31 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

31 January 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Makinson d'Apice Lawyers

SOLICITOR FOR THE RESPONDENT:

Husband in person

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer Family Lawyers

Orders

Pursuant to Rule 11.10(1)(b)(ii) of the Family Law Rules 2004, permission be granted to the Commissioner of Police, NSW Police Force to amend the Application in a Case filed 28 November 2019.
Pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) publication of the following Orders and/or Reasons for judgment of Justice Watts in these proceedings is prohibited until the conclusion of the matter R v Mr A – NSW District Court (Criminal) proceedings no. 2019/… and any appeal thereof is finalised, or until further order of the Court:
(a)Order and Reasons for Judgment delivered 11 October 2019, cited as Murray & Murray [2019] FamCA 737;
(b)Order and Reasons for Judgment dated 18 November 2019, cited as Murray & Murray (No. 2) [2019] FamCA 846;
(c)Reasons for Judgment dated 18 November 2019, cited as Murray & Murray (No. 3) [2019] FamCA 847, with the exception of paragraph 420 of the Reasons for Judgment;
(d)Ex Tempore Reasons for Judgment dated 17 December 2019;
(e)Ex Tempore Reasons for Judgment dated 31 January 2020.
The parties are not to provide a copy of transcripts of these proceedings to any other person except as provided in these Orders.
Order 2 hereof does not prohibit either the Husband or the Wife in these proceedings from:
(a)Obtaining a transcript of the oral evidence given during these proceedings and providing a copy of that transcript and any other evidence given during these proceedings to a party to these proceedings and/or 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;
(b)Providing a copy of the Orders and Judgments referred to in Order 2 hereof 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.
The Commissioner of Police inform the Registrar of the Court and my associate in writing forthwith of the conclusion of the criminal trial against Mr A including any conclusion of the appeal time or the conclusion of any appeal.
Until further order the Application filed by the Commissioner of Police on 28 November 2019; the Amended Application filed by the Commissioner of Police on 28 January 2020; the Affidavit of Theresa Hartcher filed 28 November 2019…

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.

Continue reading Murray and Murray (No. 5)

Details

AGLC: Murray and Murray (No. 5) [2020] FamCA 222
Case: [2020] FamCA 222
Decision Date: 31 January 2020

CaseChat Overview and Summary

In the matter of *Murray and Murray (No. 5)*, Justice Watts of the Family Court of Australia considered applications for suppression and non-publication orders. The proceedings involved the Commissioner of Police, NSW Police Force, and the parties to the family law proceedings, referred to as the Husband and Wife. The core of the dispute revolved around the publication of various orders and reasons for judgment previously delivered by the Court in the *Murray and Murray* proceedings.

The primary legal issues before the Court were whether to grant permission to the Commissioner of Police to amend an application, and crucially, whether to impose suppression and non-publication orders on specific judgments and orders made in the *Murray and Murray* proceedings. These orders were sought pursuant to sections 102PE(1)(b)(i) and 102PF(1)(a) of the *Family Law Act 1975* (Cth), with the stated purpose of preventing publication until the conclusion of related criminal proceedings in the NSW District Court, specifically *R v Mr A*, and any subsequent appeals.

Justice Watts granted the Commissioner of Police leave to amend their application. The Court then made extensive orders prohibiting the publication of several sets of reasons for judgment and orders, including those delivered on 11 October 2019, 18 November 2019 (Nos. 2 and 3), 17 December 2019, and 31 January 2020. These prohibitions were to remain in effect until the conclusion of the criminal proceedings against Mr A and any appeals therefrom, or until further order. The Court also made provisions for parties to obtain transcripts for legal advice and appeal purposes, and ordered that certain filed documents be sealed. Notably, the property settlement orders made on 18 November 2019 and paragraph 420 of the reasons for judgment in *Murray & Murray (No. 3)* were explicitly excluded from the non-publication orders. The Court also approved the use of a pseudonym for the publication of its judgment.

Orders

Orders of the court

Orders

1. Pursuant to Rule 11.10(1)(b)(ii) of the Family Law Rules 2004, permission be granted to the Commissioner of Police, NSW Police Force to amend the Application in a Case filed 28 November 2019.

2. Pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) publication of the following Orders and/or Reasons for judgment of Justice Watts in these proceedings is prohibited until the conclusion of the matter R v Mr A – NSW District Court (Criminal) proceedings no. 2019/… and any appeal thereof is finalised, or until further order of the Court:

2. (a) Order and Reasons for Judgment delivered 11 October 2019, cited as Murray & Murray [2019] FamCA 737;

2. (b) Order and Reasons for Judgment dated 18 November 2019, cited as Murray & Murray (No. 2) [2019] FamCA 846;

2. (c) Reasons for Judgment dated 18 November 2019, cited as Murray & Murray (No. 3) [2019] FamCA 847, with the exception of paragraph 420 of the Reasons for Judgment;

2. (d) Ex Tempore Reasons for Judgment dated 17 December 2019;

2. (e) Ex Tempore Reasons for Judgment dated 31 January 2020.

3. The parties are not to provide a copy of transcripts of these proceedings to any other person except as provided in these Orders.

4. Order 2 hereof does not prohibit either the Husband or the Wife in these proceedings from:

4. (a) Obtaining a transcript of the oral evidence given during these proceedings and providing a copy of that transcript and any other evidence given during these proceedings to a party to these proceedings and/or 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;

4. (b) Providing a copy of the Orders and Judgments referred to in Order 2 hereof 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.

5. The Commissioner of Police inform the Registrar of the Court and my associate in writing forthwith of the conclusion of the criminal trial against Mr A including any conclusion of the appeal time or the conclusion of any appeal.

6. Until further order the Application filed by the Commissioner of Police on 28 November 2019; the Amended Application filed by the Commissioner of Police on 28 January 2020; the Affidavit of Theresa Hartcher filed 28 November 2019 and the Affidavit of Theresa Hartcher filed 28 January 2020; copy of the Ex Tempore Reasons for Judgments dated 17 December 2019 and 31 January 2020 be sealed and not open for inspection by any person without further order.

7. In relation to the documents referred to in order 6, the parties are not to provide copies to anybody other than a person from whom they are seeking legal advice.

IT IS NOTED THAT:

8. Nothing in these Orders prevents the publication nor disclosure of the property settlement orders dated 18 November 2019 and paragraph 420 of the Judgment: Murray & Murray (No. 3) FamCA 847.

9. Order 2 hereof does not apply to the final property orders made by His Honour Justice Watts in these proceedings on 18 November 2019 and nothing in these orders prohibits either party from providing a copy of those orders to any person from whom they are obtaining professional advice and/or otherwise using that material for the purposes of implementation and/or enforcement of those orders.

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 Commissioner of Police & 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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