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Sitwell & Sitwell

Sitwell & Sitwell

Case [2014] FamCAFC 5 23 January 2014

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FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL

[2014] FamCAFC 5

FAMILY LAW – APPEAL – INJUNCTION – where wife applied for orders restraining husband from publishing information relating to property settlement proceedings in which they were involved – where the injunctive relief sought by wife closely reflected the provisions of s 121 of Family Law Act 1975 (Cth) – where trial judge refused to grant the injunction on the basis, inter alia, that the protections sought by the wife were provided by s 121 – appeal by wife – whether an injunction lies to prevent a threatened or anticipated breach of s 121 – held that, except in special circumstances, an injunction merely restating the effect of s 121 is unnecessary and undesirable – consideration of what might amount to "special circumstances" – wife failed to demonstrate the existence of special circumstances that would have justified a departure from the general principle to the effect that an injunction merely restating the effect of s 121 is unnecessary and undesirable – appeal dismissed

Family Law Act 1975 (Cth), s 94AA, s 114, s 121
Family Law Regulations 1984 (Cth), r 15A

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Cachia v Hanes (1994) 179 CLR 403
Casley & Casley (2010) FLC 93-449
Coulton v Holcombe (1986) 162 CLR 1
D v H [2008] QSC 35
Ellershaw & Survant [2013] FamCA 510
Gallagher v Durack (1983) 152 CLR 238
Gibb & Gibb (1978) FLC 90-405
Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481
Re Schwartzkopff (1993) FLC 92-381
Re South Australian Telecasters Ltd (1998) FLC 92-825
Sitwell & Sitwell [2013] FamCAFC 54
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Xuarez & Vitela [2012] FamCA 574

APPELLANT:

MS SITWELL

RESPONDENT:

MR SITWELL

FILE NUMBER:

PAC

5769

2010

APPEAL NUMBER:

148

2013

DATE DELIVERED:

23 January 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth (by videolink to Sydney)

JUDGMENT OF:

Bryant CJ, Thackray & Walters JJ

HEARING DATE:

29 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 October 2013

LOWER COURT MNC:

[2013] FamCA 812

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gould

SOLICITOR FOR THE APPELLANT:

Champion Legal

COUNSEL FOR THE RESPONDENT:

Self Represented Litigant

Orders made on 29 October 2013

The appellant wife be granted leave to rely upon the further evidence contained in the affidavit of Margaret Sitwell filed on 25 October 2013.
The appeal against the orders of Justice Johnston made on 21 October 2013 be dismissed.

Orders made on 23 January 2014

The wife pay the husband's costs in relation to the appeal, such costs to be assessed in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH (BY…

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.

Continue reading Sitwell & Sitwell

Details

AGLC: Sitwell & Sitwell [2014] FamCAFC 5
Case: [2014] FamCAFC 5
Decision Date: 23 January 2014

CaseChat Overview and Summary

In the case of Sitwell & Sitwell, the wife, an appellant, sought an injunction to prevent her husband from publishing information related to their ongoing property settlement proceedings. The dispute was heard in the Family Court of Australia. The central issue before the court was whether an injunction can be granted to prevent a threatened or anticipated breach of section 121 of the Family Law Act 1975 (Cth), which deals with the confidentiality of family law proceedings. The trial judge had declined to grant the injunction, reasoning that the protections already provided by section 121 were sufficient.

The court considered whether an injunction merely reiterating the effect of section 121 is necessary or appropriate, except under special circumstances. It was held that, generally, such an injunction is both unnecessary and undesirable. The court then explored what might constitute "special circumstances" that would justify departing from this general principle. In this case, the wife had not demonstrated any special circumstances that would warrant an exception to the general rule. Consequently, the appeal was dismissed as the wife failed to meet the threshold for the issuance of an injunction.

The court's decision reinforces the principle that injunctive relief should not be used merely to reiterate statutory protections unless there are exceptional circumstances. The appeal was dismissed on the basis that the wife had not shown that such circumstances existed in this case.

Orders