Oliver and Lawler - [2015] FamCA 945

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

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…

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 Oliver and Lawler

Details

AGLC: Oliver and Lawler [2015] FamCA 945
Case: [2015] FamCA 945
Decision Date: 2 November 2015

CaseChat Overview and Summary

In *Oliver and Lawler*, heard by Cronin J, the husband sought interlocutory injunctive relief against the wife concerning her communications and conduct. The dispute arose in the context of family law proceedings, specifically concerning the breakdown of the marriage, the parties' separation, and matters relating to the husband's new relationship and his character.

The primary legal issues before the court were whether the wife should be restrained from communicating certain details about the marriage breakdown, the separation, the husband's new companion, and derogatory information about the husband to third parties. Additionally, the court considered whether the wife should be restrained from denigrating the husband in the presence of the parties' children.

Cronin J granted interlocutory injunctions restraining the wife from communicating specific details concerning the marriage, separation, the husband's new companion, and any derogatory information about the husband to any person other than her legal and medical advisers. The court also restrained the wife from denigrating the husband or permitting others to do so in the presence of the children. These orders were to remain in effect until 4 pm on 27 November 2015. The husband's application was otherwise adjourned to that date.

Orders

Orders of the court

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.

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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