PATEL & O’RILEY (Non-Publication) - [2010] FamCAFC 57

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

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.…

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.

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Details

Case: [2010] FamCAFC 57
Decision Date: 3 March 2010

CaseChat Overview and Summary

The case involved an application by the father, referred to as Patel, to withdraw a judgment from publication. The primary concern was the fear that the publication of the reasons for the judgment could lead to the disclosure of his identity. Patel testified that financial institutions or credit card organisations could potentially identify him, which could result in the calling in of loans or recovery of debts. The matter was heard in a Family Law Court, with the judge considering relevant sections of the Family Law Act 1975 (Cth).

The legal issues before the court included whether the particulars in the published judgment were sufficient to identify Patel, and if so, whether further anonymisation of the judgment was warranted under sections 120(9) and 121 of the Family Law Act. The court had to determine if the details provided, such as the father’s date of birth, occupation, and the names of financial institutions, were enough to identify him to the public or a specific section of the public as required by section 121(3) of the Act.

The court concluded that the particulars in the judgment were indeed sufficient to identify Patel, and thus warranted further anonymisation. The identity of the father’s place of birth, occupation, and any references to financial institutions were to be redacted from the published reasons. The application to withdraw the judgment from publication was dismissed, but the court mandated that the judgment publication officer make the necessary changes to anonymise the judgment further.

The final orders of the court were that the father's application to withdraw the judgment from publication be dismissed, and that the Reasons of Judgment be further anonymised by removing the father's place of birth, occupation, and any references to financial institutions. This was to ensure that the identity of the father could not be revealed through the published reasons.

Orders

Orders of the court

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.

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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