Ortona & Peters (No. 4)

[2015] FamCA 1240

FAMILY COURT OF AUSTRALIA

ORTONA & PETERS (NO. 4) [2015] FamCA 1240

FAMILY LAW – CHILDREN – Application by the father to restrain the mother from writing a blog referring to the proceedings between the parties – father alleges that the mother has directed parents at the children’s school to the blog – need to protect the children from further exposure to the conflict between the parties – orders made that the mother be restrained from discussing or directing the parents/staff of the children’s school to the blog.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ortona

RESPONDENT: Ms Peters

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 28 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 28 July 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. Until further order, the mother be and is hereby restrained from contacting either personally, by telephone or other electronic means including email, or discussing with staff members and/or  parents of other children at any school the children B born … 2003 and C born … 2005 attend for the purposes of:-

   (a)discussing the contents of the blog “…” or any other blog set up by the mother in which she describes and discusses the proceedings in this Court in relation to the children; or

   (b)from directing them to or providing a link to the website in relation to “...” or any other blog set up but the mother.

2. As soon as practicable the father serve a sealed copy of the order made this day upon the mother by express post addressed to care of GG Street, Suburb HH in the State of Victoria and by email addressed to ....

3. The father’s application in a case filed 26 May 2015 and the amended application in a case filed 14 July 2015 be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortana & Peters (No. 4) 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: MLC 8590 of 2012

Mr Ortona

Applicant

And

Ms Peters

Respondent

REASONS FOR JUDGMENT

1. This matter was before me in the Judicial Duty List on 7 July 2015.  The application listed for hearing on that date was the father’s application seeking enforcement of orders for the sale of a property.  During the course of that hearing, the father referred me to a blog used by the mother to describe, although not, it would appear, directly identifying the parties to these proceedings, and discussing in some detail what she said had occurred during the proceedings, including discussions about judicial officers, registrars and other persons employed by the Court.  At the time when this was raised, the mother had left the Court and orders were made with respect to the application before the Court that day in her absence.

2. Given the nature of the matters raised by the father and so as to afford the mother procedural fairness, I also made orders that by 4.00 pm on 14 July 2015 the father file and serve any amended application in a case and any affidavit in support in relation to the information contained in the ... blog and that by 4.00 pm on 21 July 2015 the mother file and serve any response and any affidavit in reply to the father’s application in a case and adjourned the matter for mention before me this day.

3. On 14 July 2015 the father filed an Application in a Case in which he sought the following orders:

   1.That the Mother discontinue with writing any details in a blog or other electronic form which refers to our Family Law Case File number MLC8590/2012 which identifies parties to the proceedings.

   2.That in the event that the Mother refuses or fails to comply with the above, that pursuant to s 121 of the Family Law Act 1975 (“the Act”), the Court consider reasonable punishment under [the Act].

4. That application, together with an affidavit sworn on 14 July 2015, was forwarded by express mail and emailed to the mother on 14 July 2015.  The father has given brief evidence as to the fact that he served the documents by email and by express mail on 14 July 2015 and he has produced a copy of both the letter and the email and the express mail tracking receipt.

5. In all of the circumstances, I am satisfied that the father served the documents upon the mother by mail and by email, that being to an email address to which he has communicated with the mother on previous occasions.

6. The mother has not filed any answering material.  She has been called, and she does not appear this day.

7. The father deposes that, on 9 June 2015, he was contacted by the principal of the children’s school in Suburb II to inform him that he had received an email from another concerned parent at the school that a blog had been set up on a website which details this case in great detail.  The principal also told him that a number of parents had allegedly received an email from the mother which directed them to this website.  The father has annexed to his affidavit a hard copy of some of the information contained in the blog.

8. The father has also said that the children are aware of this blog, that they are aware that the mother has been directing other parents to the blog, and that the children and the father have been engaged in some family therapy during which the children have made it clear that the mother’s behaviour makes their family look “really bad”.  The father is concerned for the impact upon the children of the gossip in the schoolyard amongst the other children and amongst the other families, which can also impact upon the children.  It may result in parents not wanting to have the children over or not wanting to get involved when there seems to be a great deal of tension between the parties as evidenced by what is contained in that blog.

9. It is not a matter for me to make orders that the mother be punished for a breach of s 121 of the Family Law Act 1975 (Cth) (“the Act”), or, for that matter, to prevent the mother expressing her views if she chooses to do so, even if those views are contrary to the father’s views and even if those views, once expressed, might have an impact upon the children. The real problem, in my view, is the children being involved in this process, in particular, through their school environment.

10. Section 68B(1) of the Act provides that:

    If proceedings are instituted in a court having jurisdiction under this Part [of the Act] for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

    (a)        an injunction for the personal protection of the child; or

    (b)       an injunction for the personal protection of:

    (i)        a parent of the child; or

    (ii)a person with whom the child is to live under a parenting order; or  

    (c)an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of the child; or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or 

    (d)an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of a person referred to in paragraph (b); or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

11. While specifying those matters, s 68B of the Act does not limit the Court specifically to those matters as a basis for making an injunction. The Court can, pursuant to that section, make an injunction as it considers appropriate for the welfare of the child. This is arguably not a parenting order as such, but whether the best interests of the children are or are not the paramount consideration, they are clearly a consideration in applications such as this.

12. Children caught up in significant dispute between their parents and the subject of proceedings in this Court, often see school as their environment and a safe environment where they are protected from that dispute.  To take away that sense of security they may have at school, to expose them to the playground gossip or a sense that other children and parents and staff members know about their family’s circumstances could well undermine the security of the children.

13. Although I am not satisfied that I should preclude the mother from expressing the views she chooses to express, whether or not she has breached s 121 of the Act is another matter. I am satisfied that it would be appropriate for the welfare of these children that the mother not discuss the matters in that blog with either staff members at the school or other parents and not direct other parents or staff members to the website where that blog is found.

14. Whilst some of the damage may already have been done, and it is impossible to say that some damage has not been done, given that the children are aware of the blog and the fact that it has been brought to the attention of other parents and staff members, in my view, it is important on an ongoing basis to, if possible, protect the security that the children may find at school away from the dispute between their parents.  In my view it is not in their best interests for them to be exposed to the views of the mother and her dissatisfaction with the proceedings and the impact of the other parents and the staff members being exposed to those views could indirectly impact upon the children.

15. In all of the circumstances, I propose to restrain the mother until further order from either discussing the matters contained in the blog with the staff and other parents or either directing them to or providing them with hard copies of the material contained in that blog.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 28 July 2015.

Associate: 

Date:  24 July 2017