NEUBERT & NEUBERT AND ORS
[2017] FamCA 903
•9 November 2017
FAMILY COURT OF AUSTRALIA
| NEUBERT & NEUBERT AND ORS | [2017] FamCA 903 |
PUBLICATION ORDER – Application for permission to publish account of determination of a proceeding – Orders made for the publication, in all forms of media, of a fair and accurate report of the judgment of the Court published 18 October 2017 and this judgment shall have the names of the parties included
| Family Law Act 1975 (Cth) |
Gillespie v Bahrin; The Herald and Weekly Times Ltd(intervener) (1993) FLC 92-388
| Farnell & Anor and Chanbua [2016] FCWA 17 |
| APPLICANT: | Caroline Overington as a sub-editor of ‘The Australian’ newspaper |
| 1st RESPONDENT: | Graeme Bruce Gordon Bradfield as Personal Legal Representative of Olga Baraquio Neubert |
| 2nd RESPONDENT: | Klaus Dieter Neubert |
| INTERVENOR: | Josephine Ramos Cooper |
| FILE NUMBER: | HBC | 796 | of | 2014 |
| DATE DELIVERED: | 9 November 2017 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 9 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person - Ms Overington |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Lewinski |
| SOLICITOR FOR THE 1ST RESPONDENT: | Butler McIntyre & Butler |
| COUNSEL FOR THE 2ND RESPONDENT: | In person |
| SOLICITOR FOR THE 2ND RESPONDENT: | In person |
| COUNSEL FOR THE INTERVENOR: | Mrs Mooney |
| SOLICITOR FOR THE INTERVENOR: | Phillips Taglieri |
Orders
Leave is granted for a sub-editor of News Ltd (as publishers of ‘The Australian’ newspaper) to make an oral application for permission to publish pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
The Court grants permission for publication, in all forms of media, of a fair and accurate report of the judgment of the Court published 18 October 2017 and this judgment shall have the names of the parties included.
Media organisations are encouraged but not obliged to state in the report that the full judgment of the Court can be found at IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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 HOBART FILE NUMBER: HBC 796 of 2014
Caroline Overington as a Sub-Editor of ‘The Australian’ newspaper Applicant
And
Graeme Bruce Gordon Bradfield as Personal Legal
Representative of the late Olga Baraquio Neubert
First respondentAnd
Klaus Dieter Neubert
Second Respondent
And
Josephine Ramos Cooper
IntervenerEX TEMPORE REASONS FOR JUDGMENT
Caroline Overington as a Sub-Editor of the Australian Newspaper has applied to this Court for permission to publish accounts of the determination of the proceedings between Klaus Neubert, his late wife Olga Neubert and an intervenor, Josephine Cooper.
This matter is of interest to the media as Mr Neubert has been the subject of significant media reporting following an act by him of terrible family violence through the shooting and murder of Olga Neubert in May 2015 immediately followed by the shooting of Mrs Cooper, causing her serious and permanent injuries.
The crimes, criminal trial, conviction and sentencing of Mr Neubert and the proceedings for civil damages between Mrs Cooper and Mr Neubert, all conducted in the Supreme Court of Tasmania, have been the subject of identifying and broad media coverage over the last two years or so.
Prior to her death, Olga Neubert had commenced proceedings in the Federal Circuit Court for property orders under the Family Law Act 1975 (Cth) (‘the Family Law Act’). Those proceedings were subsequently transferred to the Family Court and the legal personal representative of the estate of the late Olga Neubert was permitted to continue those property proceedings. Mrs Cooper intervened in the Family Law property proceedings to protect her entitlement to significant damages.
Those property proceedings were heard in August 2017 and this Court delivered reasons and made final property orders on 18 October 2017. It is in that context that this oral application for permission to publish is made.
Arrangements were made for Mr Neubert to appear by telephone link to the Court and for the legal representatives to appear likewise.
Section 121 of the Family Law Act provides restrictions on publication of court proceedings with criminal sanctions for publications in breach of that statutory provision. Section 121(9)(g) of the Family Law Act empowers this Court to permit publication of accounts of proceedings.
Ms Overington appeared in person. Mr Neubert attended from Risdon Prison, but terminated his involvement prior to the Court convening.
The legal representatives for the Estate of the late Olga Neubert and Mrs Cooper were initially concerned as to the detail of the reasons to be made available. However, when it was clear that the anonymised version would be used with the parties’ actual names, they offered no opposition to the relief sought by Ms. Overington.
As a resident of Tasmania, I have taken judicial notice of the extensive media reporting of the crimes and subsequent hearings and determinations in the Supreme Court of Tasmania.
As to the case law, in Gillespie v Bahrin; The Herald and Weekly Times Ltd(intervener) (1993) FLC 92-388 at 79,998, Frederico J observed:-
It was submitted that, as the matter is already in the public domain, this case is similar to that which was considered by Mason J. (as he then was) in The Commonwealth of Australia v. John Fairfax & Sons Limited and Others (1980) 147 CLR 39 where an injunction restraining publication of sensitive foreign policy documents was refused on the basis that limited publication already having taken place, the detriment apprehended by the Commonwealth would not be avoided by the grant of an injunction.
Reliance was placed by the Intervener on public interest and the freedom of the press. It was submitted that in the circumstances of this case the public interest outweighed the need for the Court to protect the welfare of the children:
‘Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern or interest to the nation, to a particular section of the community or to particular individuals are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain.’ (Hinch v. Attorney-General (Vict.) (1987) 164 CLR 15 at 57 (per Deane J.))
I agree with Frederico J that, in the context of proceedings to parties to a relationship, particularly where children are involved, these are weighty considerations.
The approach to be taken when considering such matters under was discussed by Chief Judge Thackray of the Family Court of Western Australia in Farnell & Anor and Chanbua [2016] FCWA 17 where he said:-
735. In Sedgwick and Rickards [2013] FCWA 52, Duncanson J considered the relevant statutory provisions and case law relating to publication of an account of proceedings in the context of a surrogacy case. At [48], her Honour concluded:
I accept there is an aspect of public interest to this case. Surrogacy is becoming increasingly prevalent. Unfortunately not all surrogacy arrangements are carried out in accordance with the legislation leading to the exploitation of vulnerable adults and children both in Australia and overseas. The reporting of the arrangements in this case is informative. It may provide an example to others and discourage surrogacy arrangements undertaken contrary to the terms of the legislation. The permission to report the account of proceedings will not be inconsistent with the best interests of the child. Had it been so, the best interests of the child would have overridden the public interest.
736.I respectfully agree with Duncanson J, and I have decided to permit publication of my judgment for the following additional reasons:
•the story is already in the public domain;
•an account has already been permitted of what occurred at an interim stage;
•there has been significant public interest in the case and it has been at the forefront of discussion about possible law reform;
•the public has a legitimate interest in knowing how Australian law deals with the complex issues that arose in the proceedings;
•it would be impossible to publish an account in a way that did not immediately link the story to the notorious “baby Gammy” case; and
•if the Farnells are to receive the “vindication” they want, it would be of limited value unless published in the way the earlier inaccurate story was published.
The preceding cases demonstrate the dichotomy between the need to protect children from the publication of information that could make the child’s life difficult or intolerable and societies underlying philosophy that justice needs to be open and accessible to be truly just. Section 121 of the Family Law Act was designed by the legislature in part to protect children at the expense of completely open court proceedings.
In this particular case there is a broader public benefit in shining a light on the abominable behaviour of those who inflict domestic violence on their intimate partners, their family and friends.
As with many decisions there is, and was, a balancing of factors in this determination.
Mrs Cooper is an innocent victim of a violent crime and her private circumstances have been and will likely be the subject of broader publication. The verdict she received in the civil proceeding in the Supreme Court was publicly reported.
In this case there are no children of the relationship between Mr Neubert and Olga Neubert. However, there are infant beneficiaries of the Estate of the late Olga Neubert and the identities and countries of residence of these children are and will remain anonymised in the reasons irrespective of the outcome.
Further, the circumstances of the parties to these proceedings are that:-
· the story of these crimes and the events following the attacks are already in the public domain;
· accounts of these events have been the subject of serious media interest.
· The outcome of the criminal and civil proceedings, in the Supreme Court of Tasmania, are readily available in unexpurgated form on that courts website;
· I reiterate that there are no children of the marriage of Mr Neubert and the late Olga Neubert;
· there has been significant public interest in the events and cases that followed the murder of Mrs Neubert and the wounding of Mrs. Cooper.
· the public has a legitimate interest in knowing how Australian law deals with the complex processes and outcomes that follow such crimes. Particularly, given community concerns about family violence arising between intimate partners and often around relationship breakdown; and
· it would be impossible to publish an anonymised account of this case in Tasmania which did not link it to the Supreme Court proceedings and the media interest surrounding them.
Given all of those circumstances, leave is granted for Caroline Overington to make an oral application for permission to publish pursuant to s 121(9)(g) of the Family Law Act and grant permission for publication of a fair and accurate report of the judgment of the Court in with the names of the parties included. I have determined to leave out material which could lead to the identification of the nieces and nephews of the late Olga Neubert and the infant grandchildren of Mr Neubert. I have also left out the precise detail and situation of property, bank account numbers and the like.
Given that a more detailed version of the reasons will now be on the Family Court website, I will encourage, but not oblige media organisations to state that the full judgment of the Court can be found at >
As this application was to be heard today, the Court requested that the judgment be prepared in a form available for broad distribution, in the event that the application was successful. As such a copy of the identifying judgment will be available for access by media from the Court’s Media Officer today.
Accordingly, I will so order.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 9 November 2017.
Associate:
Date: 9 November 2017
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