Newett & Newett - [2021] FedCFamC1F 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Newett & Newett [2021] FedCFamC1F 11

File number(s): BRC 2179 of 2018

Judgment of: HOWARD J

Date of judgment: 3 September 2021

Catchwords: FAMILY LAW – CONTEMPT – Application for Contempt – where the applicant failed to distinctly state the specific charges against the respondent – where the application must be dismissed on that ground alone – a consideration of section 121 of the Family Law Act 1975.

Legislation:
Family Law Act 1975 (Cth) ss , 35, 112AP, 121

Family Law Rules 2004 (Cth) r, 21.08

Judiciary Act 1903 (Cth) s, 24

Cases cited:
Best & Best (2015) FamCAFC 1164

Best & Best [2016] FamCAFC 190

Colina, Re; Ex parte Torney (1999) 200 CLR 386
Chang Hang Kiu v Piggott (1909) AC 312
Collins & Ricardo [2014] FamCA 786
Coward v Stapleton (1953) 90 CLR 573
Eagle & Scarlet (No.2) [2020] FamCAFC 291
Hearn v Street (2008) 235 CLR 125
In the Marriage of Gibb [1978] FLC 90 – 405

LGM & CAM (contempt) (No.2) (2008) FamCAFC 1

Oates v Q & Anor [2010] FamCAFC 202
R v Foster; Ex parte Isaacs (1941) VLR 77
Re Pollard (1868) LR 2 PC 106
Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539

Tate v Tate (2002) 29 Fam LR 195

Thornton & WorkCover Corporation South Australia [2009] FamCA 449
Witham v Holloway [1995] HCA 3

Division: Division 1 First Instance

Number of paragraphs: 96

Date of last submission/s: 24 August 2021

Date of hearing: 12 August 2021

Place: Brisbane

The Applicant: Litigant in Person

Counsel for the Respondent: Mr McGregor

Solicitor for the Respondent: AZ Lawyers

ORDERS

BRC 2179 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS NEWETT

Applicant

AND:
MR ARMSTRONG

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

3 SEPTEMBER 2021

1.That the applicant’s Application for Contempt filed 9 February 2021 is dismissed.
2.That the respondent’s Application for Costs is adjourned to a date to be fixed.

Note: The form of the order is subject to the entry 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Newett & Newett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
HOWARD J:
Background

The applicant in this case is Ms Newett. Ms Newett is a party in proceedings in the Family Court of Australia file…

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.

Keep reading for free

Create a free CaseChat account to read Newett & Newett and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FedCFamC1F 11
Decision Date: 3 September 2021

CaseChat Overview and Summary

In the matter of Newett & Newett, the applicant, Ms Newett, sought a contempt order against the respondent, Mr Armstrong, for alleged breaches of section 121 of the Family Law Act 1975 (Cth). Section 121 of the Act prohibits the publication of certain family law proceedings that identify individuals involved in the proceedings, unless specific exceptions apply. The case was heard by the Federal Circuit and Family Court of Australia. The central legal issue was whether the applicant had properly initiated contempt proceedings against the respondent for breaching section 121 of the Act. Additionally, the court considered whether breaches of section 121 should be addressed through contempt proceedings in the Family Court.

The court determined that the applicant's application for contempt must be dismissed. Firstly, the applicant failed to distinctly state the specific charges against the respondent, which is a fundamental requirement for such proceedings. Secondly, the court found that even if the applicant had properly stated the charges, a breach of section 121 should not be addressed through contempt proceedings. This conclusion was based on established case law, including the Full Court's decision in Schwarzkopff; Fitzgibbon v Barker, which held that the Family Court is generally not the appropriate forum for enforcing section 121. The court also noted that proceedings for offences against section 121 should not be initiated without the written consent of the Director of Public Prosecutions, as required by section 121(8) of the Act.

The court dismissed the application for contempt and adjourned the respondent's application for costs to a future date. This decision underscores the importance of adhering to procedural requirements in contempt applications and reaffirms the principle that breaches of section 121 are not typically addressed through contempt proceedings in the Family Court. The form of the order is subject to review for any minor typographical or grammatical errors or variations as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

BRC 2179 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS NEWETT

Applicant

AND:

MR ARMSTRONG

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

3 SEPTEMBER 2021

1. That the applicant’s Application for Contempt filed 9 February 2021 is dismissed.

2. That the respondent’s Application for Costs is adjourned to a date to be fixed.

Note: The form of the order is subject to the entry 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

My conclusion in relation to section 121 is supported by the decision of the Full Court in Oates v Q & Anor [2010] FamCAFC 202. In that case details of proceedings in the Family Court were disclosed to a Legal Services Commission. In that instance, it was section 121(9)(b) which provided protection to the person disseminating the information. In the present case it is section 121(9)(a) which provides protection to the respondent, Mr Armstrong. The decision of the Full Court in Schwarzkopff; Fitzgibbon v Barker Even if the respondent (Mr Armstrong) did not have the protection of section 121(9)(a) (which he does) and even if the applicant had proven that the respondent had breached section 121(1) of the Act – there is a long line of authority in this Court to confirm that a breach of section 121 of the Act ought not be dealt with by the Family Court of Australia by way of contempt proceedings – or otherwise. In this regard I note the decision of the Full Court in the Marriage of Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539 – especially at pages 547 – 548. In that decision the Full Court (comprising Barblett DCJ, Nygh and Purdy JJ) stated, inter-alia, at page 547:- For the prosecution reliance was placed on s 112AP(2) which provides that in spite of any other law, a court having jurisdiction under the Act may prosecute a person for contempt of that court. Whatever may be the scope of that provision, it is in our view clearly undesirable as a general principle to proceed under s 112AP for an alleged contravention of s 121. In In the Marriage of Gibb (1978) 6 Fam LN 7; (1978) FLC 90-405 the Full Court consisting of Pawley, Dovey and Frederico JJ had to consider an injunction granted by the trial judge restraining the wife in the proceedings from communicating with the press in relation to the pending Family Court proceedings or in relation to the husband's mode of life or source of income. The Full Court set aside the injunction remarking at FLC 77,083:‘Except in special circumstances this is a highly undesirable situation. It was not intended by Parliament that this court should enforce the provisions of s 121 relating to restriction of publication of evidence, as 121(4) specifically provides that proceedings for any offence against the section should not be commenced except by, or with the written consent of, the Attorney-General, and, of course, any such prosecution could not be brought in the Family Court.’Although this is a somewhat different situation, the underlying principle is equally applicable here. Except in special circumstances it is not desirable that this court should enforce by way of contempt or otherwise the obligations arising under s 121. This case, in our view, presents no special circumstances in which to depart from that principle.” In Schwarzkopff the Full Court had relied on the 1978 decision of the Full Court in the Marriage of Gibb [1978] FLC 90 – 405. The conclusion of the Full Court in Schwarzkopff was more recently supported by Loughnan J in Collins & Ricardo [2014] FamCA 786. It should be noted that the reference in Schwarzkopff and Gibb to section 121(4) should now be read as a reference to section 121(8) of the Act. By that subsection proceedings for an offence against section 121 of the Act "shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 2179 of 2018
Judgment of:	HOWARD J
Date of judgment:	3 September 2021
Catchwords:	FAMILY LAW – CONTEMPT – Application for Contempt – where the applicant failed to distinctly state the specific charges against the respondent – where the application must be dismissed on that ground alone – a consideration of section 121 of the Family Law Act 1975.
Legislation:	Family Law Act 1975 (Cth) ss , 35, 112AP, 121 Family Law Rules 2004 (Cth) r, 21.08 Judiciary Act 1903 (Cth) s, 24
Cases cited:	Best & Best (2015) FamCAFC 1164 Best & Best [2016] FamCAFC 190 Colina, Re; Ex parte Torney (1999) 200 CLR 386 Chang Hang Kiu v Piggott (1909) AC 312 Collins & Ricardo [2014] FamCA 786 Coward v Stapleton (1953) 90 CLR 573 Eagle & Scarlet (No.2) [2020] FamCAFC 291 Hearn v Street (2008) 235 CLR 125 In the Marriage of Gibb [1978] FLC 90 – 405 LGM & CAM (contempt) (No.2) (2008) FamCAFC 1 Oates v Q & Anor [2010] FamCAFC 202 R v Foster; Ex parte Isaacs (1941) VLR 77 Re Pollard (1868) LR 2 PC 106 Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539 Tate v Tate (2002) 29 Fam LR 195 Thornton & WorkCover Corporation South Australia [2009] FamCA 449 Witham v Holloway [1995] HCA 3
Division:	Division 1 First Instance
Number of paragraphs:	96
Date of last submission/s:	24 August 2021
Date of hearing:	12 August 2021
Place:	Brisbane
The Applicant:	Litigant in Person
Counsel for the Respondent:	Mr McGregor
Solicitor for the Respondent:	AZ Lawyers

BRC 2179 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS NEWETT Applicant
AND:	MR ARMSTRONG Respondent
ORDER MADE BY:	HOWARD J
DATE OF ORDER:	3 SEPTEMBER 2021