Oliver and Lawler
[2015] FamCA 945
•2 November 2015
FAMILY COURT OF AUSTRALIA
| OLIVER & LAWLER | [2015] FamCA 945 |
| FAMILY LAW – INJUNCTIONS – Holding order sought to restrain the wife from discussing the parties’ relationship problems – protection of husband’s reputation. |
Evidence Act 1995 (Cth)
| Family Law Act 1975 (Cth) |
| ABC v Lenah Game Meats Pty Ltd (2001) HCA 63; 208 CLR 199 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Hall & Hall & Anor (Objection to Subpoena) [2014] FamCA 407 Sadek and Ors & Hall and Anor [2015] FamCAFC 23 Sitwell & Sitwell [2014] FamCAFC 5 |
| APPLICANT: | Mr Oliver |
| RESPONDENT: | Ms Lawler |
| FILE NUMBER: | SYC | 7081 | of | 2015 |
| DATE DELIVERED: | 2 November 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 30 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Paul |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Holmes |
| SOLICITOR FOR THE RESPONDENT: | KD Holmes Solicitors |
Orders
That until 4 pm on 27 November 2015, the wife be restrained from communicating to any person or arranging for any other person to do so, other than her legal and professional medical advisers, the details of or about:
·the circumstances of the breakdown of the marriage;
·the parties’ consequential separation;
·the husband’s relationship with his new companion;
·the husband which may be of a derogatory nature; or
·any confidences as between husband and wife during their relationship.
That until 4 pm on 27 November 2015, the wife be restrained from denigrating the husband or permitting any other person to denigrate the husband in the presence of the children of the marriage.
That the application of the husband filed 28 October 2015 is otherwise adjourned to 10 am on 27 November 2015.
IT IS CERTIFIED
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oliver & Lawler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: SYC 7081 of 2015
| Mr Oliver |
Applicant
And
| Ms Lawler |
Respondent
REASONS FOR JUDGMENT
Mr Oliver seeks two categories of urgent interim injunctive relief. First, he wants an interim order described as a “non-publication” order. Secondly, he seeks an interim “non-denigration” order.
The dispute arises out of the breakdown of the husband’s marriage with Ms Lawler. For my convenience only, I shall refer to the parties as husband and wife.
There are some matters that need to be immediately stated about this application. They are:
· The application was only filed on Wednesday 28 October 2015 for the hearing on Friday 30 October;
· The application was only served on the solicitors for the wife on 29 October albeit the respective solicitors had been involved in discussions about a variety of other things a little earlier;
· The wife was represented at this hearing by her solicitor but for reasons which I accept, she had not had any reasonable time to file responding material;
· Both parties agreed that the application which encompassed parenting issues (which were not pressed for this discrete hearing) had to be adjourned and the focused period for any orders is until 27 November 2015; and
· Fundamental facts (to which I shall refer) are disputed by the wife and objection was taken to various parts of the husband’s affidavit on the basis of opinion, conclusion and fear.
Notwithstanding the adjournment was not opposed, the husband sought holding orders based upon his affidavit material. That was opposed by the wife. Because of the unusual nature of the application and the submissions by the wife that there is no basis to make orders, (especially for a period of 27 days) I agreed to have a think about the proposed orders over the weekend. I have done so.
The background of the parties’ relationship and their respective positions in our society has something to do with this case which may make it a little unusual. The husband is a professional and is currently an elected official of the relevant professional body. The wife is a professional but has not participated in that profession since 2007. She is currently the primary carer of the parties’ three children aged seven, six and five. There is (amongst a raft of orders sought by the husband) a parenting dispute looming in which he seeks that (in a variety of circumstances) the children live with him. The evidence would need to be significantly stronger than that which was before me to justify an interim alteration of the status quo.
The husband and wife married in 2005 and their relationship ended in February 2015. It would be trite to say that there has been acrimony between them since; that gives rise to the question of the injunctive relief sought by the husband. I do not understand it to be a matter of dispute that the husband has commenced a relationship with another person who is an employee of the professional body and that relationship would appear, on the facts which are yet to be responded to and tested, to be a source of the wife’s discontent.
The orders sought by the husband were encapsulated in a document handed to the Court as the hearing began. The husband seeks two “non-publication” orders which, if the language is distilled to simple terms, would preclude the wife from letting anyone know about the details of :
· the circumstances of the breakdown of the marriage;
· the parties’ consequential separation;
· the husband’s relationship with his new companion;
· anything of a derogatory nature about the husband; or
· any confidences as between husband and wife during their relationship.
A further order was sought that the wife be restrained from sending, or being responsible for sending, emails to anyone about the matters immediately above.
Each of these orders was opposed.
The submission of the husband was that the non-publication relief sought is directed to protecting his reputation. From the wife’s perspective as articulated by Mr Holmes on her behalf, the husband, as the current senior office holder of the professional body, has a political profile and no doubt has detractors. As I understand her position, she will say that she is not responsible for the written words about which the husband complained and has done nothing to affect his reputation. From the husband’s perspective as articulated by Mr Paul, various emails are being circulated which attack his reputation both as to (it would seem) honesty and integrity within the professional body but also as a husband. The husband points to the emails and (although they are not identical and indeed can be seen to relate to a variety of topics) says:
· They contain the same sorts of allegations which could only have come from the wife;
· They have named authors who are not members of the professional body which suggests that the wife has fictitiously created the various email addresses; and
· Some of the addressees would not have been known to the wife (but perhaps to members and that would not sit comfortably with non-members writing as they did) but the wife had access to his laptop computer which contained the relevant addressees.
Objections were raised by the wife to parts of the husband’s affidavit. For this limited judgment, I have agreed with most of the objections as the relevant paragraphs are a mixture of conclusion, opinion or are lacking fact and as such, are inadmissible. There is one objection however that I have rejected and that relates to attachments to a particular paragraph which included the various emails received by the professional body and about which the husband complains and points the finger at the wife as the author. The objection was essentially that the husband had been given the emails and concluded that they were written by the wife notwithstanding each indicated another author. The objection taken was that the husband had expressed an opinion which was inadmissible. I disagree.
The evidentiary starting point is ss 55 and 56 of the Evidence Act 1995 (Cth) as to relevance. Unless the evidence is shown to be relevant, it is not admissible. To be relevant, it must be shown that it could rationally affect the assessment of the probability of the existence of a fact in issue. The critical issue in contemplation here is whether or not the wife, under the guise of a variety of names, authored and sent the emails. It is significant that in his evidence, the husband referred to having put the assertion to the wife and she denied she was responsible. Looking at the emails and notwithstanding her denials, he perceives she is the author of the documents. In my view, the evidence of the content of the documents and the husband’s perception is relevant because it underpins the very basis for injunctive relief.
The hearsay rule does not apply here because this is an interlocutory hearing (s 75 Evidence Act).
Because the application relies on s 114 as the relevant power, the rules of evidence should be applied. If it relied on s 68B in Part VII, Division 12 A overcomes any admissibility difficulty. Here, Mr Paul relied for the non-publication order on s 114.
Section 78 of Evidence Act permits a court to admit evidence of a lay opinion if it is based on inter alia what the person perceived about a matter or event and the evidence is necessary to obtain an adequate understanding of the person’s perception of the matter. Because of the way in which the emails were written, the fact that the named authors were not recorded as professional body members and the very nature of the various confrontations between the husband and the wife over the months after separation, this evidence is admissible to understand why the husband perceives it as coming from the wife.
In addition, s 183 of the Evidence Act permits an examination of a document to assist in the determination of whether s 78 should be applied but also permits the drawing of inferences that may be properly drawn. Mr Holmes urged the Court not to draw inferences here. One basis for that objection is that the husband is a “political” person and is said to presumably have detractors. I agree it is important to be cautious because of that possibility, that is, the husband may be the target of a campaign about expenditure of the professional body’s funds in circumstances where he has commenced a relationship with an employee. It is conceivable that there is significant overlap between the complaints about his professional and personal roles. Accordingly, I have examined the various emails.
One email refers to:
He has left his wife … and 3 young children.
The author goes on to say that:
It is a terrible time for his family.
Those statements seem to me to be unlikely to have emanated from professional body members unhappy about the propriety of the use of funds particularly because of the statement about the family.
Another email with similar tone, but with a more focused reference to the duties of the husband in the professional body, is underpinned by reference to the “extra marital affair”. It is not clear to me why the affair would be of concern except in relation to some misuse of travel entitlements and the author did not say how it was that he became aware of the “misconduct and misappropriation” of such funds or what it was that was inappropriate.
Another email refers to the “affair during [professional body] trips away” being not a private issue. Again, I am not sure why the author would have been aware of the financial issues associated with these stated trips but the evidence points to the wife being aware and upset about it. Her language as reported by the husband includes reference to the husband’s companion as a “whore”.
An email in May 2015 whilst purporting to be from someone concerned for the members of the professional body, seems to know the more intimate details of the husband’s relationship and then strays into accusations that the husband’s companion is a “home wrecking whore”. That does not sound to me like a disgruntled member concerned about professional body’s funds misuse.
As late as 23 October 2015, an author wrote to “undisclosed recipients” some remarkably accurate details about the husband’s home life and children and said:
The media feels it is a great public interest story now that many of us are prepared to object to such revolting behaviour and would like the use of travel expenses explained and all made transparent.
This indicates to me that the author had already spoken to the media. The husband’s affidavit contains a paragraph to which no objection was raised which reads (quoting his oldest child) as follows:
Mummy said that someone is coming to interview her about the divorce for the news tonight.
If all of these documents were from professional body members and that is denied by the husband from searches of professional body records, then either the husband’s profile in the role and the community is well known to include his new companion adversely and I have no evidence of that or alternatively, it seems to me that the wife has spoken to various people who have then become acquainted with the personal lives of the parties.
The onus of proof of the allegation that the wife is behind these emails lies with the husband and the standard required to be reached is the balance of probabilities. The Court has to be satisfied to a comfortable level that the wife is probably the author of the documents and that it is unlikely that they would have been written by a source completely removed from her?
I have the evidence that when the husband confronted the wife about the issue, he said she denied she was responsible. One would expect that but, for the purposes of interlocutory relief, I am satisfied that the husband has been candid. I obviously do not have the evidence of the wife in response and no doubt when the matter returns, the Court will have far more evidence upon which to assess whether the candour is as I have just described it.
I am comfortably satisfied that there is a foundation for the husband’s assertion that the wife has either written the emails or orchestrated people to do so. I make that finding taking into account:
· The emails all seem to come from a “Gmail” source which strikes me as odd in that I would have expected that professionals, as affronted members of the body, they would use a more official email address;
· The named authors are said not to be members so why would they be so incensed about personal matters;
· There is the unchallenged statement of the child which is consistent with at least one email where there is reference to media interest; and
· There are the remarks I have already made about the unlikely (at least without some response from the wife) source being persons other than the wife in relation to the more personal nature of the husband’s life.
No doubt the wife will respond comprehensively for the next hearing where the injunction I propose to make can be discharged if another judge has better evidence that dissuades the Court from following the holding orders path.
The question remains as to whether it is proper to make the orders sought. Mr Holmes submitted that it was not appropriate to make the orders even for the 27 days because the actions sought to be injuncted are adequately covered by s 121 of the Family Law Act 1975 (Cth) (“the Act”) and he drew attention specifically to Sitwell & Sitwell [2014] FamCAFC 5.
In Sitwell, consideration was given to the circumstances in which an injunction can reasonably be granted to prevent a threatened or anticipated breach of s 121 of the Act. Subsequent Full Court authority has quoted the salient parts of that decision without comment in Sadek and Ors & Hall and Anor [2015] FamCAFC 23 (“Sadek”).
Sitwell and the established authorities upon which it relied were all cases in which an injunction was sought to prevent the possible breach of s 121 of the Act. The section prohibits publication or dissemination of proceedings such as to identify (for example) a party and it uses language such as “any account of any proceedings, or of any part of any proceedings, under this Act...” The husband seeks here to prevent the wife from publishing not so much details about him in proceedings but rather, talking to anyone about the nature of his relationship with his partner and their involvement with the professional body.
Questions also arise as to whether the members of the professional organisation who were emailed are a “section of the public” or individuals in their own right. It is not necessary that I deal with that here. The wife’s case is that there ought not be an injunction granted because s 121 is sufficient. I am not convinced that is correct. The ambit of the orders I propose to make may fall beyond the ambit of the information protected by s 121. It covers information which currently falls outside of the proceedings and protects “the privacy of the... family”: Hall & Hall & Anor (Objection to Subpoena) [2014] FamCA 407 at [59], upheld in Sadek.
Mr Holmes on behalf of the wife also submitted that there was no basis for the orders because the criminal law will cover all of these issues of electronic communication. Just how far that argument can go depends on a number of things. What is to happen pending an investigation by authorities? Is the email (fake or otherwise) likely to fall within the Commonwealth Crimes legislation? In my view, this Court should not be deterred from exercising its powers if jurisdiction is established and the applicant can show propriety in the making of the order. To the extent that there is a double jeopardy situation here, that problem can be addressed at another time.
I am satisfied that there is a power. The questions remain as to whether it is proper to exercise it and whether the orders sought in their fullest form are appropriate. The unusual feature of this application is the nature of what the relief is said to be intended to protect. The husband seeks it to protect his reputation.
Section 114 requires the Court to be satisfied that it is proper to make the order or, in the case of s 114(3), that it is just and convenient to make the order. Each of those provisions could potentially cover the question of the reputation of a party to a marriage if there consequences for the parties or the children in respect of matters within the Court’s jurisdiction such as parenting and financial matters. The underlying basis for an injunction was considered in ABC v Lenah Game Meats Pty Ltd (2001) HCA 63; 208 CLR 199 where the High Court discussed the question of what was being protected.
Gleeson CJ referred to the purpose of an interlocutory injunction being to keep matters in statu quo until the rights of the parties could be determined at the hearing of the suit. Here, there can be no doubt that the “suit” has been commenced and the husband’s reputation could be seen to be relevant to both parenting and property issues yet to unfold. There are now parenting proceedings pending and media coverage (albeit within the purview of s 121 of the Act) could adversely affect the children. Mr Holmes made reference to the wife’s financial dependence. All of these matters are yet to be crystallised and in my view, that justifies an order in statu quo.
In ABC (supra), Gleeson CJ said of the proceeding before the High Court:
In order to preserve the subject matter of the dispute, and to prevent the practical destruction of the right claimed by the respondent before the action could be heard on a final basis, the Supreme Court had power to grant an interlocutory injunction. The immediate source of that power was s 11 of the Supreme Court Civil Procedure Act 1932 (Tas). Power of that nature has a long history, and is exercised according to principle, not unguided discretion. I agree with what is said by Gummow and Hayne JJ as to the relevant principles. For present purposes, what is most significant is that the justice and convenience of granting an interlocutory injunction, in a case such as the present, is to be found in the purpose for which the power exists.
The Chief Justice went on to say:
We are not concerned in the present case with forms of relief, such as the Mareva order, or anti-suit injunctions, which have expanded the boundaries of this area of jurisprudence. Nor are we concerned with some special statutory jurisdiction.
Section 114 of the Family Law Act is very much the same as that contained in the 1932 Tasmanian legislation that was considered by their Honours. Gleeson CJ referred with apparent approval to the test in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 which if applicable here would mean the husband needs to show:
(1)That there is a serious question to be tried or that a prima facie case, in the sense that if the evidence remains as it is there is a probability that ultimately, the husband will be held entitled to that or similar relief;
(2)That he will suffer irreparable “injury” unless an injunction is granted; and
(3)That the balance of convenience favours the granting of an injunction.
In ABC Gummow and Hayne JJ said at para 90 (citations omitted):
The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature. In Muschinski v Dodds, Deane J said that an equitable remedy:
is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles.
In my view, the husband’s reputation is a basis for relief. Bearing in mind the limitations on the hearing, that is, the absence of responding material from the wife and the very limited findings the Court can make, I am satisfied there is a prima facie case for such an order based on the matters set out above. I am satisfied that in this unusual case, there is a substantive action to protect in the sense of the financial position of at least the husband and the children. I am further satisfied that the husband will suffer harm if the wife is not restrained from talking about their relationship problems. Finally, I am satisfied that albeit there are other legislative provisions available that could be taken if the wife was found to be the author of these emails, the balance of convenience favours a holding order until the return date when she can be comprehensively heard. In respect of that, I am satisfied there is little no prejudice to the wife for her not to talk about the relationship problems.
I turn then to the non-denigration relief.
Mr Holmes for the wife submitted that there was no basis for the injunction for 27 days. I understood him to say that from the wife’s perspective, the commencement of the proceedings particularly relating to children, even with a denial of any responsibility for the accusations, had a salutary effect. Mr Holmes did not dispute that social science evidence has consistently said that children in the midst of conflictual relationships suffered. Mr Holmes however pointed to the husband’s own evidence that on certain named weekends, there were no similar “issues”. Against that, I have the evidence of the husband which at least creates a prima facie case that over the various months since separation:
· There was the reference by the oldest child about some proposed interview about “the divorce”;
· An incident occurred in April where the wife became hysterical and screamed abuse when the question of the sale of the house was raised;
· The oldest child was shown a picture of the husband’s companion whom she described as “ratface”;
· The incident in June when the wife on loudspeaker in the husband’s car asserted that he had caused the children enormous pain;
· In September, the wife warned she was going to tell a child that the husband could not attend to help toilet training because he was in “bed with his whore”;
· The husband hearing the wife ask one of the children to inquire whether he was with his companion; and
· A child referring to the husband as a “whore”.
These examples are all matters of evidence to be tested. I make no findings about them other than on a prima facie basis, they justify a response being given by the wife and until that can be done, an order restraining her from using such language. I readily accept that these children are probably too young to understand the very concepts of the adult language but the very fact of the consistency of their use means that the children are being exposed to adult concepts that sooner or later may lead to one of the children realising that these are derogatory or rude terms. If that was to occur, these children would be put in a position where they would begin to consider one parent less valuable or important than the other. I would urge reverting to professional help for the parties and the children should be a priority rather than litigating.
The jurisdictional basis for making this particular order lies in s 68B of the Act. The opening words of the section indicate how wide it is. The exercise of the power depends upon whether or not the husband has established on the balance of probabilities that it is necessary for a holding order to be made. In this case, the justifiable reason lies in the duration over which the events have occurred and, on a prima facie basis, are still occurring. Mr Holmes correctly pointed out that there were statements by the husband that times occurred without “an issue” but what seems to have been occurring of late is that the relationship of the husband and wife has deteriorated. The risk seems to me to be high that unless the Court puts in place a holding order, these children will be exposed to further conflictual behaviour. I readily acknowledge that the Court has heard nothing from the wife about her complaints (if any) of the husband and on the return date it may be that other orders become necessary.
I am satisfied that it is necessary to put in place a holding order. I do not consider it necessary to make the restriction unlimited such that it prevents discussion between the wife and her lawyers or any medical professional upon whom she attends for the purposes of treatment. I do not consider it appropriate at this time to extend the order to cover the wife talking about the husband’s companion but if that was happening, that person may take her own action including in this Court. The balance of the proposed orders relate to the wife “complaining” about the husband. I consider those matters would be caught by the order as I have set it out.
I consider that as these are holding orders, they should be simple and clear. Accordingly, I have made the orders at the commencement of these reasons.
The issue of costs was raised and both parties submitted I should reserve their costs. The husband wanted it until the next return date and the wife wanted it generally. In my view, the matter will be for the next judge to decide what is best.
I have also indicated that liberty should be given generally and if possible for me to determine any disputes arising in the intervening period.
I certify that the preceding Forty Seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 November 2015.
Associate:
Date: 2 November 2015
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