PATEL & O’RILEY (Non-Publication)
[2010] FamCAFC 57
•3 March 2010
FAMILY COURT OF AUSTRALIA
| PATEL & O’RILEY (Non-Publication) | [2010] FamCAFC 57 |
| FAMILY LAW - APPLICATION – Application for withdrawal of judgment from publication – Where the Applicant feared that publication of reasons could lead to his identity being revealed – Where the Applicant gave evidence that financial institutions or credit card organisations may be able to identify him and then seek to call in loans made or recover debts due – Sections 120(9) & 121 of the Family Law Act 1975 (Cth) considered FAMILY LAW - APPLICATION – Where pursuant to s 121(3) there were particulars sufficient to identify the Applicant to a member of the public or to a member of the section of the public – Particulars identified include the Applicant’s date of birth, occupation and the names of financial institutions – Further anonymisation granted – Application otherwise dismissed |
| Re B v Minister for Immigration and Multicultural and Indigenous Affairs and Advertising Newspapers Ltd [2002] FamCA 768 Re M (1983) FLC 91-314 Re Lowe & Lowe and Herald and Weekly Times Ltd (1995) FLC 92-592 Re W Publication Application (1997) FLC 92-756 |
| Family Law Act 1975 (Cth) Family Law Amendment Act1983 (Cth) Family Law Amendment Act 2000 (Cth) Matrimonial Causes Act 1959 (Cth) |
| APPLICANT: | MR PATEL |
| RESPONDENT: | N/A |
| FILE NUMBER: | DGM | 1007 | of | 2005 |
| APPEAL NUMBER: | SA SA | 50 73 | of of | 2008 2008 |
| DATE DELIVERED: | 3 March 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 3 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 April & 4 August 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 514 & [2008] FMCAfam 816 |
REPRESENTATION
| THE APPLICANT: | Father in Person |
Orders
The Application in a Case filed by the Father on 11 December 2009 be dismissed.
It be noted that the Court will arrange with the judgments publication officer that the Reasons of Judgment delivered on 13 November 2009 will be further anonymised with respect to the Father’s place of birth and his occupation and the identity of any financial institutions.
IT IS NOTED that publication of this judgment under the pseudonym Patel & O’Riley (Non-Publication) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 50 & 73 of 2008
File Number: DGM 1007 of 2005
| MR PATEL |
Applicant
REASONS FOR JUDGMENT
Before me for hearing is an application in an appeal filed on 11 December 2009 by Mr Patel (“the Father”) in which he seeks, “that the reasons for judgment in the appeal SA 50 and SA 73 of 2008 be withdrawn from publication”.
The Father was referring to reasons for judgment I delivered on 13 November 2009 in relation to appeals by the Father. There is no respondent to the application. The Father appeared before me without leave or representation. The Father swore an affidavit on 11 December 2009 in support of the application in which he deposed the following:
1. On 13th November 2009, His Honour Justice O’Ryan delivered his judgment together with REASONS FOR JUDGMENT on the Appeals SA 50 & SA 73 of 2008.
2. His Honour approved the publication of the judgment under the pseudonym <pseudonym> pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
3. The judgment was published on the Family Court of Australia website under the pseudonym “Patel Vs. O’Ryan” [sic] on the 14th November 2009.
4. The reasons for judgment published contained detailed personal and financial information including years of birth, the type of profession, educational and professional qualifications, date of migration to Australia, country of origin, and detailed financial information with names of financial institutions from whom the appellant father borrowed money among many other information.
5. The REASONS FOR JUDGMENT contains a detailed, in depth analysis of my financial circumstances.
6. The publication of the “REASONS FOR JUDGMENT” could cause severe adverse consequences to me, the appellant, as there is sufficient information contained in the judgment about the state of my finances that a financial institution such as American Express or the 4 big banks from which I have borrowed money could identify me.
7. In the current environment of the global financial crises lenders and credit reporting agencies are extra vigilant. They gather information about the borrowers from publicly available sources including the Courts of Law.
8. Given that these financial institutions already possess my personal information, it is possible for them to identify me from the facts of the case. With the advanced information technology tools available to these institutions, it is not hard to match the data from the REASONS FOR JUDGMENT.
9. In such an event they would most likely call for the debts and I could end up being homeless and insolvent with grave adverse consequences, including damage to my professional reputation.
10. I therefore plead with you that the reasons for judgment be permanently withdrawn from publication.
As well, the Father made some brief oral submissions to me today.
Section 121 of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i)the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii)the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b)in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or
(c)in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.
(5) An offence against this section is an indictable offence.
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9) The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the display of a notice in the premises of a court that lists proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i)a separate volume or part of a series of law reports; or
(ii)any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person.
(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.
(11) In this section: “court” includes:
(a)an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b)a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
“electronic means” includes:
(a)in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b)in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.”
The Matrimonial Causes Act1959 (Cth) introduced some restrictions on publicity of matrimonial law proceedings. However, the Act made radical changes and the courts were closed and all publicity was prohibited. A detailed consideration of the legislative history appears in the report to the Attorney-General for the Commonwealth on proposals for amendments to the Act by the Honourable I.W.P. McCaw.
In a report of a joint select committee on the Matrimonial Causes Act1959 of July 1980 it was said:
It appears from the debates when the Family Law Bill was being considered by Parliament that two particular factors influenced the decision to make the Family Court a closed court and to restrict publication of its proceedings. The first was the view that no special public interest was served by exposing the private domestic disputes of individuals to the public gaze and the glare of publicity in the media. The second was the recognition, well attested, that certain sections of the press for years exploited divorce court proceedings.
As a result of recommendations of the joint select committee, the Family Court is no longer closed and publicity is permitted, provided there is no identifying information about the parties and witnesses. Section 121 of the Act in its present form was introduced by the Family Law Amendment Act1983 (Cth) with amendments made by the Family Law Amendment Act 2000 (Cth).
This is a case in which the Applicant is seeking that reasons for judgment, which have been published on the Court website, be withdrawn. It is not a case where, for example, an order is being sought to permit the publication of reasons in the media or by other means. There are various authorities which I need not, for the purposes of this present application discuss, where consideration was given to an application for publication, and I refer to Re M (1983) FLC 91-314 at 78,135; Re Lowe & Lowe and Herald and Weekly Times Ltd (1995) FLC 92-592; Re W Publication Application (1997) FLC 92-756; and Re B v Minister for Immigration and Multicultural and Indigenous Affairs and Advertising Newspapers Ltd [2002] FamCA 768 (unreported, Dawe J, 6 September 2002).
Section 121 does not provide a general ban on publication of proceedings under the Act. What it does is make it an offence to publish any account of proceedings that identifies any of the persons involved in a newspaper or periodical publication, radio or television broadcast or by other electronic means. The means by which persons may be identified are extensively defined. In CCH, Australian Family Law and Practice, vol 1 (at 54-545) the authors said that while s 121 now prohibits only material that identifies the party, related persons or witnesses, and makes it clear that it is only intended to operate in publication in the media, subs (3) provides: “Such a large number of ways in which a person may be said to be identified as substantially to prevent any but the most broad general account of any proceedings in the Family Court.”
Section 120(9) of the Act lists exceptions to the prohibition of publication, and for the purposes of these proceedings, paragraph (d) of s 120(9) permits the publishing of a notice or report in pursuance of a direction of the Court. Categories of cases where a direction has been made include advertisements dispensing with personal service in cases of child abduction, which I need not discuss.
In conclusion, I have no doubt that in appropriate circumstances an order may be made that requires either a complete ban on any form of publication of reasons for judgment, or editing such that a great deal more than the name of the party is anonymised. I do not propose, in the circumstances of this case however, to discuss the circumstances in which that discretion may be exercised.
However, in the circumstances of this case I am not prepared to make the order sought by the Father. He gave in his affidavit as a reason, a concern that lending institutions or credit card organisations may be able to identify him and then seek to call in loans made or recover debts due. In any event, the inference that could be drawn, but I am not suggesting it should be, is that the Father may not have made a full disclosure to such lenders or credit card organisations of his financial circumstances. This could not possibly be, as the Father agreed in discussion, a reason for withdrawal or further anonymisation of the reasons. This is not, as I have said, a case where an order is being sought for publication of reasons. It is a case where the opposite is sought.
What, however, I do accept is that when one has regard to the terms of s 121(3) of the Act and the means by which a person may be identified, that in the reasons of 13 November 2009, material such as the place of birth of the Father and his occupation described in paragraph 20, and also the identity of financial institutions with which the Father has had dealings, in paragraph 78, could be particulars sufficient to identify the Father to a member of the public or to a member of the section of the public to which the account was disseminated.
In the result, I propose to dismiss the application of the Father for the brief reasons I have given. However, I will take administrative steps to enable there to be further anonymisation of the reasons with respect to the matters that I have described above.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 26 March 2010
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