Nathan and Merrill

[2018] FamCA 994

FAMILY COURT OF AUSTRALIA

NATHAN & MERRILL [2018] FamCA 994

FAMILY LAW – ORDERS – Contravention – Penalty

Family Law Act 1975 (Cth) Pt VII Div 13A, sub-divs C, D, E, F

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

APPLICANT: Ms Nathan

RESPONDENT: Mr Merrill

INDEPENDENT CHILDREN’S LAWYER: Silkwoods

FILE NUMBER: ADC 3121 of 2015

DATE DELIVERED: 27 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Andrew Hill and Co

COUNSEL FOR THE RESPONDENT: Mr Britton

SOLICITOR FOR THE RESPONDENT: Weatherley & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Olsson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Silkwoods

Orders

1. That within seven (7) days from the date of this order MR MERRILL enter into a Bond for a period of nine (9) months without surety or security upon the following conditions:-

   (a)       That he be of good behaviour during the period of the Bond;

   (b)       That he comply with all current and future parenting 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 Nathan & Merrill 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 ADELAIDE

FILE NUMBER: ADC 3121 of 2015

Ms Nathan

Applicant

And

Mr Merrill

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Contravention Application filed 25 June 2018 Ms Nathan (“the mother”) alleged that Mr Merrill (“the father”) contravened paragraph 4 of orders made 21 February 2018 on 15 March 2018, 24, 25 and 26 April 2018 and 10 May 2018.

2. The parties are the parents of X born … 2014 and Y born … 2016 (“the children”).

3. On 24 October 2018 the father admitted the breaches of the order and conceded that he did so without reasonable excuse.

4. The order contravened is in the following terms:-

   4.The parties be restrained and an injunction is granted restraining each of them from publishing any video, photograph or any other form of image, together with any commentaries, remarks letters or statements or any other form of reference to or about these proceedings, the children and/or the respondent on Youtube, Facebook, internet websites or any other form of social media.

5. It is notable that the order contravened was made by consent on 21 February 2018.

6. The mother’s affidavit in support of the contravention application was uplifted by her Affidavit filed 6 November 2018. The gravamen of the contravention application is that the father posted a video, created a Facebook page and posted photographs and commentaries of the children.  He gave an interview which resulted in an article being published in an online newspaper in early 2018 and in the print newspaper later the same month and set up an online petition calling for the mother’s re-trial.  Further videos were posted of both children later in 2018.

7. Exhibit “1” in the proceedings comprise copies of the social media posts and the online news article that clearly identifies by narrative and picture the parties and the children.

8. The father filed his own Affidavit on 5 October 2018 acknowledging that he did not intend to defend or dispute the allegations.

9. He now accepts that his use of social media was not appropriate and states that the “links referenced in [the mother’s] affidavit have now been removed from social media”.

10. There is some contention as to whether all of the social media or online links have been removed but for the purposes of the proceedings and the father’s sentencing, I accept that he has now done all that he can.  There may be third party sites beyond the control of the father that still have information pertaining to the parties and the children online.  To the extent that the father now recognises that his actions were not only in breach of an order, but carried a more significant mischief namely, the odium that may be experienced by the children, it is a reasonable expectation of the mother that the father will use his best endeavours to seek the removal of whatever online information may remain.

THE LAW

1. The sections of the Family Law Act 1975 (Cth) (“the Act”) concerning applications for Contravention of orders are contained in Division 13A of Part VII of the Act.

2. Subdivision C to F of Division 13A of Part VII of the Act provide the orders available to the Court that can be made in instances where:-

   (c)       The contravention has been alleged but not established (sub-div C);

   (d)The contravention is established but reasonable excuse for the contravention is found (sub-div D);

   (e)The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and

   (f)The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

3. I have determined that the contravention should be considered as “more serious”.

4. As discussed, the breaches were in respect of orders that had been made by consent.  There was clear focus on the serious mischief that was likely to result to the children in relation to the unregulated use of social media.

5. The father’s actions were deliberate and egregious.

6. Subdivision F will only apply if the conditions in either s 70NFA(2) or s 70NFA(3) of the Act are satisfied. Subsection 70NFA(3) is not directly applicable in that this contravention represents the first occasion on which the father has been found to have contravened an order.

7. I consider that the father has behaved in a way that “showed a serious disregard” of his obligations in respect of the order.

8. In Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 the Full Court asserted at [50] that:-

   … Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enlivened the extra powers available under that section.

9. The significant issue that arises from the father’s conduct is that what he has done may not necessarily be capable of remedy.  Third party agencies may well continue to promote and/or refer to the story and it could not be said that the father’s conduct was innocent or minor.  The commentary, videos and photographs are emotive and contain detailed personal information of the children and the parties.  The children’s identity is now public knowledge.

PENALTY

1. There is a concession by the parties that the appropriate penalty should be a Bond requiring the father to be of good behaviour for a period of nine months.

2. Section 70NFE provides that if a Bond is imposed it is limited for up to two years but may be with or without surety and security.

3. The conditions that may be imposed include the following:-

   (a)To attend an appointment (or a series of appointments) with a family consultant; or

   (b)To attend family counselling; or

   (c)To attend family dispute resolution; or

   (d)To be of good behaviour.

4. In the circumstances of this case and taking into account the ready admission by the father that he has contravened the orders, I consider that requiring the father to enter into a Bond for a period of nine months with a condition that he be of good behaviour provides an appropriate balance of punishment and deterrent.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 November 2018.

Associate: 

Date:  27 November 2018