SAMMARRA & ROSTEM
[2015] FamCA 358
•15 May 2015
FAMILY COURT OF AUSTRALIA
| SAMMARRA & ROSTEM | [2015] FamCA 358 |
| FAMILY LAW – PRACTICE & PROCEDURE – SUPPRESSION ORDER – where the mother seeks a suppression order in respect of these proceedings and all material filed therein – where she asserts it is necessary to protect hers and the child’s safety – where the alleged threat to the mother and/or child’s safety is in a foreign jurisdiction – where the father asserts there is a lack of utility in making the order – where the mother has previously published information she now seeks be suppressed – where the application is dismissed. FAMILY LAW – INJUNCTION – injunction sought to restrain a party from disclosing to any third party information which relates to these proceedings. |
| Family Law Act 1975 (Cth) ss 68B, 102PD, 102PE, 102PF |
| A on behalf of B v State of NSW (Department of Education and Training) [2013] FCA 331 D1 v P1 [2012] NSWCA 314. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651 John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 Lew & Ors v Priester & Ors (No 2) [2012) VSC 153 |
| APPLICANT: | Ms Sammarra |
| RESPONDENT: | Mr Rostem |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 7973 | of | 2013 |
| DATE DELIVERED: | 15 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 8, 15 and 22 July 2014; and By way of further written submissions filed by the Applicant on 1 August 2014 and by the Respondent 31 July 2014 and 7 August 2014 |
| SOLICITOR FOR THE APPLICANT: | Mr Waller of M + K Lawyers |
| RESPONDENT: | No appearance on 8 July 2014 |
| SOLICITOR FOR THE RESPONDENT: | Ms Lloyd of Family Legal from 15 July 2014 |
| THE INDEPENDENT CHILDREN’S LAWYER: | Ms Chan of Legal Aid Queensland |
Orders
The Orders made 22 July 2014 are discharged.
The Application in a Case filed 23 June 2014 is dismissed.
In the event that either party seeks an order that the other pay the costs of and incidental to the Application in a Case filed 23 June 2014:
(a)any such party shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the party against whom an order for costs is sought shall file and serve within a further fourteen (14) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(c)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sammarra & Rostem 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 BRISBANE |
FILE NUMBER: BRC 7973 of 2013
| Ms Sammarra |
Applicant
And
| Mr Rostem |
Respondent
REASONS FOR JUDGMENT
The mother seeks that a suppression order is made pursuant to s 102PE of the Family Law Act (1975) on the basis that the same is necessary to protect her safety and that of the parties’ child, B, born in 2002.
She also seeks that, pursuant to either s 102PE or s 68B of the Act, the father be restrained from disclosing to all authorities, law enforcement agencies, police, government regimes and Courts in Country C any information which reveals the identity of parties or witnesses in these proceedings, information which reveals the child’s identity, any information about the evidence, documents and/or information produced pursuant to a subpoena issued in the course of the proceedings. It is sought to prohibit the father from disclosing such information to any third party, other than a legal representative or Court appointed experts.
The mother asserts the orders sought are necessary to protect her safety and that of the child and/or are appropriate for the child’s welfare, being orders for their personal protection.
The father opposes the making of any order. He does so primarily on the basis that the Court would not be persuaded that such orders are either necessary to protect the mother and child’s safety or appropriate for their personal protection.
On 22 July 2014, I made an interim order pending full consideration of the Application. I did so because the parties were then about to engage in interviews for the preparation of a Family Report and I was concerned that, without such order, the mother may not have engaged fully with the author of the same.
The suppression order
Section 102PE of the Act provides that the Court may, by making a suppression order on grounds permitted by Part XIA of the Act, prohibit or restrict the publication or other disclosure of information:
a)tending to reveal the identity of, or otherwise concerning, any party to or witness in the proceedings or any person related to or otherwise associated with any party to or witness in the proceedings; or
b)that relates to the proceedings and is:
i)information that comprises evidence, or is about evidence; or
ii)information obtained by the process of discovery; or
iii)information produced under subpoena; or
iv)information lodged with or filed in the Court.
When deciding whether to make a suppression order the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.[1] The weight accorded to this primary objective will vary depending on the extent to which any order will interfere with it.[2]
[1] s 102PD of the Act.
[2]see: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 per Bathurst CJ, at page57.
This primary objective is, in one sense, a reflection of the legislative direction contained within s 97(1) of the Act which provides that - subject to proceedings authorised by the Regulations and the applicable Rules of Court[3] and the power to restrict the presence of specified persons or classes of persons from being present in the Court during the proceedings or specified parts of it[4] - all proceedings in this Court shall be heard in open Court.
[3] s 97(1A) of the Act.
[4] s 97(2) of the Act.
The mother asserts that a suppression order is necessary to protect her safety and/or that of the child.[5] She does not assert that she or the child will be in danger in Australia if a suppression order is not made or relief pursuant to s68B of the Act is not granted.
[5] s 102PF(1)(c) of the Act
She does, however, assert that, unless a suppression order is made or the father is restrained in the manner she seeks, there is a risk he may cause information, likely to have been conveyed to the author of the Family Report and to be the subject of sworn evidence relevant to her current living arrangements, to be disseminated in Country C.
It is within that country that the parties married, the child was born and members of the extended maternal family continue to live. The mother says that, at some time in the future, she may well travel with the child to Country C to visit family members. She is concerned that, if the father is not prevented from disclosing the information in the manner she seeks, she and the child will be at risk of suffering harm there during such visits.
The mother relies on evidence from Mr D, an Associate Professor of Law at E University[6] as providing the evidentiary basis upon which the Court would be persuaded that a suppression order is necessary to protect her safety and that of the child.
[6] Affidavit filed 23 June 2014
Whilst I take into account the submissions made by the father’s legal representative about Mr D’s evidence, I also note that the father did not produce any evidence capable of challenging the contents of Mr D’s affidavit.
In the circumstances, I accept Mr D’s evidence, which I consider establishes the following:
a)whilst it is uncommon for Country C living overseas to be prosecuted when they return to Country C for consensual sexual offences committed outside Country C, a prosecution is possible;
b)the prospects of such a prosecution being successful increase when third parties (such as the father) can provide authorities with evidence – contained, for example, in affidavits or reports prepared for the assistance of a Court – of behaviours which would constitute an offence within Country C;
c)under Country C law, a person who states a fact in a legal document (such as an affidavit) may have that fact treated as an admission in some cases: for example, in some criminal cases conducted in Country C, admissions contained in such ‘formal’ documents may be able to be adduced as “circumstantial evidence”[7] relevant to establishing the elements of a criminal charge;
d)the probative weight likely to be accorded to such information by the Country C authorities is likely to be more significant if it is contained in affidavit material or other material filed within litigation proceedings in a Court – as it is here;
e)if the mother gave evidence in her affidavit about being in a de facto relationship with a non-muslim man in Australia, such evidence may be regarded as circumstantial evidence in Country C where it is an offence, punishable by fines, lashings, imprisonment, banishment or death, for a muslim (the mother) to be in such an “unrecognised” relationship.
[7] As it is described by Mr D.
The mother asserts that, in order for her properly and candidly to prosecute her case for parenting orders, it is likely she will provide evidence which may tend to prove that she has committed and/or is continuing to commit an offence or offences against Country C law. She says possible consequences of the father providing such information to Country C authorities may be that, if she and the child visit Country C to spend time with relatives, the child may be immediately placed into the father’s care and she may be either imprisoned for a significant period of time or, possibly, sentenced to death.
The father’s solicitor submitted, in essence, that the Court would not be persuaded that a suppression order is necessary to protect the safety of the mother and/or child because:
a)the mother and child live in Australia where it is accepted there is no risk to their safety other than the ‘potential’ for an unknown assailant to attack the mother if that person became aware she had been in a de facto or any intimate relationship with a non-muslim man; and
b)the mother has already identified herself on social media as being in a relationship with a non-muslim man;[8] and
c)the mother has already published information to the Child Support Agency that the child attends a non-muslim school, that she intends to change her name and intends to marry a non-muslim man: all matters which are prohibited in Country C.[9]
[8] Father’s affidavit, filed 15 July 2014, at [4], Annexure MRR3.
[9] Father’s affidavit, filed 15 July 201, at [8], [9].
Additionally, it was submitted that it would be futile for an order to be made here because it would not be enforced by Country C Courts in Country C, the place where, in essence, the mother seeks to obtain the benefit of it.
It is submitted that the cumulative effect of the above is that the Court would not be persuaded either that a suppression order is ‘necessary’ to protect the mother and child’s safety or that it is appropriate to grant an injunction in the terms sought by the mother.
The meaning of ‘necessary’ in s 102PF of the Act
What is “necessary” depends on the nature of the orders sought and the circumstances in which they are sought in each individual case. That an order may be convenient, reasonable or sensible or serve some notion of the public interest is insufficient to establish that it is ‘necessary’. A determination of whether an order is necessary for the relevant purpose does not involve the Court undertaking some sort of balancing exercise;[10] rather, the Court will either be persuaded in the particular circumstances that the order is necessary to achieve the intended purpose or it is not.
[10] Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651, 664.
Nothing in Part XIA of the Act requires there to be a physical connection between the place where an order is made and the place where the safety of the person sought to be protected by the order is to be safeguarded. Had Parliament intended to place limits around the physical location in which the safety of a person was to be protected, this could have been easily achieved. Similarly, there is no legislative requirement that the safety sought to be protected must be an immediate safety.
However, an order is not ‘necessary’ simply because a party may wish to avoid scrutiny or to keep their (personal) affairs confidential.[11] There must be material before the Court upon which the Court can reasonably reach the conclusion that it is “necessary” to make the order – a belief that an order is necessary is insufficient.[12]
[11] Lew & Ors v Priester & Ors (No 2) [2012] VSC 153 at 667.
[12]Hogan v Australian Crime Commission and Ors (2010) 240 CLR 652 at [26]; John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477.
In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim and Ors (“Fairfax”)[13] the New South Wales Court of Appeal considered s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the terms of which are relevantly the same as s 102PF of the Act.
[13] (2012) 83 CSWLR 52; [2012] NSWCCA 125
The Court held that which was ineffective or futile could not be described as “necessary” within the meaning of the relevant provision:[14] that is, if the Court determined that the order, if made, would be ineffective, it could not be concluded that the order was “necessary” – in this case – to protect the safety of any person.
[14] Fairfax, at [72] and [73] (per Basten JA).
I agree with the manner in which the Court there considered the proposition. It is to the utility of making an order that attention should be directed.[15] I accept that an order which cannot be enforced is ineffective and is not ‘necessary’ to achieve the relevant purpose.
[15] D1 v P1 [2012] NSWCA 314.
The mother’s legal representative did not really cavil with this. Rather, he submitted that:
a)whilst an order may not be capable of enforcement in Country C, it is capable of enforcement in Australia and, consequently, should be regarded as necessary to protect the mother and the child’s safety;
b)the utility of the order is that it will prevent the father, a party to these proceedings, from disclosing information which may lead to a risk of harm to the mother and child in Country C because a disclosure of sworn material will significantly increase the risk of, at least, the mother, suffering harm via prosecution;
c)as the order will be personal to the father and capable of enforcement here, any difficulty in obtaining sufficient evidence to bring enforcement proceedings successfully is irrelevant.
In A on behalf of B v State of NSW (Department of Education and Training)[16], Griffiths J considered an application for an order to suppress the names of the litigation guardian and minor on the basis that such suppression was necessary to prevent prejudice to the administration of justice. Whilst made in this context, the following statement has some resonance in the present case:
Secondly, I have also been influenced by a concern that if a suppression order is not made in the circumstances of a case such as this, other potential litigants who are still minors and who tragically find themselves in similar unfortunate circumstances to the minor here may be reluctant to access the court for fear that their identities will be revealed and associated with highly personal and sensitive matters. That, plainly, is a matter which would prejudice the due administration of justice.[17]
[16] [2013] FCA 331
[17] Ibid, [10].
In Fairfax Bathurst CJ outlined, in considering the meaning to be ascribed to the phrase “necessary to secure the proper administration of justice” that, if the consequences of a failure to make an order are thought unacceptable, this may be such that the power to make orders to prevent such consequences is implied as necessary for the proper function of a Court: in criminal cases, for example, in the absence of orders suppressing the identity of those who have provided the information, informers may not provide information and, thereafter, it may be harder to obtain evidence to bring offenders before the Court and deal with them.
The present case differs significantly from the circumstances and considerations associated with criminal prosecutions. Here, the benefit of an order in terms sought by the mother seems to me to be more narrowly conferred rather than something which may be regarded as public in nature.
I note the father did not proffer an undertaking at the hearing to abide the implicit basis upon which parties are able to use material produced in the course of proceedings in this Court – namely, for those proceedings only. If anything, the submissions made on his behalf are certainly suggestive of a potential willingness to provide material to authorities outside Australia. If this willingness were manifest, it may contribute to increasing the risk to which the mother adverts. This could not be regarded as something in the child’s best interests.
Additionally, the evidence suggests that the father has previously informed authorities in Country C that the mother intended to marry a non-Muslim but, the evidence adduced was not sufficient for his purposes.
Despite this, and having regard to:
a)the accepted futility, in an enforcement sense, of an order made in Australia in relation to any possible proceedings in Country C; and
b)the accepted reality that neither the mother nor the child are likely to be in any particular personal danger in Australia absent the making of an order in the terms sought,
I am not persuaded that the suppression order sought by the mother is necessary to protect her safety or that of the child nor that it is appropriate to make an order in the injunctive terms sought by the mother for the personal protection of either her or the child.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 May 2015.
Associate:
Date: 15 May 2015
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