Oswald and Webber

[2010] FamCA 387

FAMILY COURT OF AUSTRALIA

OSWALD & WEBBER [2010] FamCA 387

FAMILY LAW – INJUNCTIONS – Privacy

Family Law Act 1975 (Cth)

Mullen & De Bry (2006) FLC 93-293
Waugh (2000) FLC 93-052

APPLICANT: Mr Oswald

RESPONDENT: Ms Webber

FILE NUMBER: MLC 5137 of 2009

DATE DELIVERED: 23 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Porter

SOLICITOR FOR THE APPLICANT: Hogg and Reid

COUNSEL FOR THE RESPONDENT: Mr Holmes

SOLICITOR FOR THE RESPONDENT: R & G Lawyers

Orders

1. That BY CONSENT of the parties, the husband and wife do all things and sign all documents to enable the sum of $30,000 to be released to each party from the monies presently held on trust with S V Winter & Company as an interim property settlement.

2. That the application in a case filed by the husband on 19 March 2010 and the response of the wife thereto filed 21 April 2010 save for the orders that follow, are otherwise dismissed.

3. That the husband’s solicitors have leave to issue a subpoena to the Commonwealth Bank of Australia to seek records of any account in the name of the wife solely or with any other person jointly from the year 2003 until now.

4. That the wife forthwith provide any further documents in her possession or control that have not been disclosed to the husband such as to satisfy the orders of 4 September 2009.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons for judgment this day in respect of the injunctive application be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Oswald & Webber is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5137 of 2009

MR OSWALD

Applicant

And

MS WEBBER

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Oswald for a variety of orders.  His application was filed on 19 March 2010.  Most of the matters in the application have either resolved themselves or have not been proceeded with.  The one order that the husband seeks reads as follows:

   That the wife, her servants or agents be restrained from disclosing to others the husband’s health conditions and diagnosis.

2. On 21 April 2010, the wife filed a response to that application seeking that his application be dismissed. 

3. In his affidavit in support of the application filed on 19 March 2010, the husband said that he was unemployed and living in London.  In some detail he set out his health condition.  Suffice to say that he said that condition was serious. 

4. In an affidavit filed on 21 April 2010, the wife, Ms Webber, responded to the husband’s affidavit and in respect of the health issues she said she was unable to admit or deny what he said.  I am satisfied on the basis of that material that his condition is clearly serious.  What he said in his affidavit filed 19 March about the application for the injunction was that the doctors had assured him that his diagnosis remained confidential and was not disclosed to people such as employers, but he was concerned that it was easy for this type of information to spread. 

5. He said he thought it was important for the court to know the extent of his health condition but he wished his wife not to disclose the information to others, in particular the children, his family and friends known to both of them.  He said he could not see any benefit to the wife from disclosing the information.  He then referred to the impact upon the children if they became aware of it.  He said that he wished to be able to determine to whom and when the information about his health was given and he did not wish it disseminated generally as a result of disclosing that status to this court.  He said, therefore, he sought restraining orders to protect his privacy. 

6. In her affidavit in support of the application for the dismissal of the husband’s application, the wife said that it was her preference for the children not to be told of the health diagnosis and she had no intention of doing so. 

7. She said it was clearly not in her interest to tell friends and family about the husband’s health situation given the stigma and embarrassment associated with it.  She said she had no intention of doing so other than what was necessary in the course of obtaining medical advice and medical tests for herself. 

8. Over opposition from counsel for the wife, the husband introduced a further affidavit this morning.  That affidavit was sent from England where the husband currently resides.  Notwithstanding the opposition of the wife, I will take into account what is in that affidavit insofar as it relates to this issue.  The husband said that he acknowledged the wife had no intention of telling family and friends about his health conditions, but her opposition to his application.  I presume that I was to draw an inference from that, that her opposition gave rise to scepticism.  Importantly, what he then said was as follows:

   I made this application because in the past the wife has been prone to divulge confidential information of a sensitive nature to others.

9. An example was then set out about a friend of the wife who told him some years after the separation about a child of a friend who had significant problems associated with drugs and criminal activities.  He then said:

   It was a very sad story.  I was surprised that the wife would give me such private information about her friend’s child when it was not my business.  The information was gossip.  I was not at that stage the wife’s confidant.  I recall thinking I would not wish the wife to discuss my private information in such a way to others.

10. That is the evidence upon which I am asked to determine this matter. 

11. The power to make an order of the type sought by the husband lies in s 114 of the Family Law Act 1975 (Cth) (“the Act”). It is a general power for courts exercising jurisdiction to grant such order or injunction as the court thinks proper with respect to the issue. Section 114(1)(a), provides that the court can make an injunction for the personal protection of a party to the marriage. Personal protection does not only relate to physical protection, but also all of the matters associated with the right of privacy. A party would be entitled to make an application for an injunction to lead their life without undue interference from their spouse or former spouse. However, the difficulty in whether the evidence would justify the need for such an injunction.

12. There have been very few authorities in which the question of personal protection has been a matter of some dispute.  However, in associated areas for example, with the use of property, courts have said that the court should not lightly interfere with the rights of an owner of the property on the basis of a vague or uncertain claim or assertion.  This is not about the rights of an owner of a property but rather about the right of privacy.  The same principles apply.  A court should not make an order unless it is satisfied that it is necessary in the circumstances based upon the evidence to do so.  In Waugh (2000) FLC 93-052, which was subsequently discussed by the Full Court in Mullen & De Bry (2006) FLC 93-293 the court said that there was a need for the applicant to show that the injunction was necessary and not just a matter of the frustration of the court’s process.

13. The applicant must show that the injunction was necessary based upon some act or fact that might give rise to the court saying it is necessary and proper in this case to stop the wife doing something that the husband fears.  On the basis of something that happened a number of years ago plus the obvious desire of the husband to have his privacy, it is not appropriate in my view nor is it proper for me to make the order based on this evidence. 

14. If there became evident some indication that the wife did do exactly what the husband was concerned about, it might be too late, but I do not see in the circumstances that I can simply make an injunction on the basis of this evidence, and I decline to do so.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 May 2010