Sitwell & Sitwell
[2014] FamCAFC 5
•23 January 2014
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 | of | 2010 |
| APPEAL NUMBER: | EA | 148 | of | 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 VIDEOLINK TO SYDNEY) |
Appeal Number: EA 148 of 2013
File Number: PAC 5769 of 2010
| MS SITWELL |
Appellant
And
| MR SITWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
On 21 October 2013, Johnston J dismissed an application made by Ms Sitwell for orders preventing her estranged husband, Mr Sitwell, from publishing information which, it was asserted, related to property settlement proceedings in which they are involved in the Family Court of Australia. The proceedings have been on foot for a number of years, but are yet to be completed.
On 23 October 2013, the wife appealed against his Honour's decision. Orders expediting the appeal were made on 24 October 2013. The appeal was listed for hearing on an urgent basis because the wife was concerned that the husband was about to publish the information forming the subject of her application to Johnson J.
We dismissed the wife's appeal on 29 October 2013. We indicated that reasons would be provided at a later time. These are our reasons.
Background
The husband and the wife were married in June 1979. They separated in October 2009 and later commenced property settlement proceedings.
A useful summary of the proceedings can be found in an earlier judgment of the Full Court – see Sitwell & Sitwell [2013] FamCAFC 54. For present purposes, it is sufficient to record that one of the issues in the proceedings concerned the sale of GE Services, a business previously conducted in partnership by the husband and wife ("GE Services"). The husband had wanted to acquire the business, but the wife, who had been appointed trustee for sale, sold it instead to TG Pty Ltd, a company which had been formed by the wife and three of the parties' sons. The sale settled on 11 October 2013. According to the wife, the sale generated insufficient funds to meet all the debts of the business, and neither the husband nor the wife received any part of the sale proceeds.
The husband has strong feelings about the sale of GE Services. In an email sent to his son on 15 October 2013, he wrote that "I will not rest until that sale is reversed or I die". On the same day, he emailed the wife in the following terms:
Unless I receive an irrevocable undertaking by 2:30 pm today to reverse the sale to [TG Pty Ltd] forthwith, I will put to the media & Government in Australia & overseas, in particular the Baroness in the UK, all that has occurred. You are advised & influenced by very foolish persons. That said, you are responsible for your cruel actions & atitude [sic] over the last 3 long years & I regret that the accounting is coming in a very public way.
On 17 October 2013, the husband indicated in an email that "if agreement for me to regain [GE Services] is not reached then the public campaign will commence prior to Monday's Court Hearing [being a court hearing that was listed for 21 October 2013]".
The husband was previously a member of a religious organisation, but he has been excommunicated. The wife remains a member of the religious organisation, as do other members of the husband's family. According to the husband, he has been "subject to an extraordinary campaign of persecution" since his excommunication. He asserts that the persecution will not stop "until my financial ruin and/or suicide is achieved, unless I take extraordinary measures ... to stop it". In broad terms, he alleges that senior officials of the religious organisation have involved themselves in the property dispute between the wife and himself, and have prevented him from "regaining control" of GE Services. Among other things, he accuses the leadership of the religious organisation of "implacably mean and unrighteous behaviour", including fraud. He describes the religious organisation as a "cult".
The substantive proceedings were listed before Johnston J on 21 October 2013. The purpose of the listing was to deal with applications for, or associated with, costs orders. At the commencement of the hearing, however, counsel for the wife sought leave to file an application in a case seeking "an injunction against the husband publishing material or any details of the case". The husband, who was present in court, but unrepresented, raised no objection to the application in a case being dealt with.
The application in a case (which we shall call "the injunction application") was supported by an affidavit sworn by the wife on 21 October 2013.
The orders sought in the injunction application are of significance and are repeated below (errors in the original):
1.That, pursuant to s. 114(3) of the Family Law Act 1975 (Cth). it be ordered that the respondent be restrained from publishing to any person, corporation or other entities, by any means whatsoever, any account of, or information with respect to, allegation made in, statement made or deposed in or for the purposes of, or other detail of any kind whatsoever, of any part of the proceedings which identifies, or might reasonably result in identification of:
a) the parties to the proceedings, or either of them;
b) a member of the families of the parties;
c)the deponent of any affidavit sworn or affirmed in the proceedings;
d) any person who has given evidence in the proceedings;
e)pursuant to s121(3)(vi) of the Act, the identity of any religious faith, organisation or church of which the parties are, or either of them is, have, or has, ever been a member or adherent, or any practice, teaching, pronouncement, or tenet of faith, alleged practice, teaching, pronouncement, or tenet of faith of such faith, organisation or church, or the identity of any leader, officer, elder, teacher or member thereof.
2.That the respondent pay the applicant's costs of and incidental to this application as agreed or assessed on a solicitor and client basis.
Those parts of the wife's affidavit which we consider to be of relevance are as follows (original emphasis):
3.Pursuant to the current Orders, acting as trustee for sale I sold the business [GE Services] to [TG Pty Ltd] and the sale settled on Friday, 11 October 2013, the sale proceeds were applied to reduce debt of the Partnership, particularly the debt to the National Australia Bank. There were not sufficient funds realised to pay all the debt of the Partnership and neither the husband or me received any part of the sale proceeds.
4.... [Annexed hereto] is an email to me dated 15 October 2013 in which the husband states, "Unless I receive an irrevocable undertaking by 2:30pm today to reverse the sale to [TG Pty Ltd] forthwith I will put to the media & government in Australia & overseas, in particular the Baroness in the UK, all that has occurred."
5.[Annexed hereto is a further email] in which the husband states in part, "if agreement for me to regain the business is not reached then the public campaign will commence prior to Monday's Court Hearing ..."
6.The emails received from the husband lead me to believe he will commence a course of action which will be distressing to me in my personal life; it will also cause distress to me and my family in the life that we live within the [religious organisation] faith.
Reasons for the dismissal of the injunction application
Johnston J delivered ex tempore reasons on 21 October 2013.
His Honour observed that the parties had been involved in litigation before the Family Court of Australia for some years. After setting out the orders sought in the injunction application and observing that the application was opposed by the husband, his Honour referred to s 114(3) of the Family Law Act 1975 (Cth) ("FLA") – which he described as "the relevant head of power". Section 114(3) is in the following terms:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
It was not in dispute – at that stage – that s 114(1) did not apply. For reasons that will become apparent, we record that s 114(1) is as follows:
114 Injunctions
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Johnston J then indicated that he was satisfied that there were proceedings between the parties in respect of which an injunction could be granted "on the basis that the court was satisfied that it would be just or convenient to do so". His Honour then posed the question: "Would it be just to do so?"
After referring to the matters deposed to by the wife in her affidavit in support of the injunction application, his Honour said (at [9]):
... It has to be just, considering each of the parties' circumstances and convenient to put such an injunction in place. Firstly, can it be just to the husband to use the authority of the Court to impose a restraint such as that which is sought in the application? If granted, in my view, a restraint in the terms sought would be very wide indeed. It would be such a broad order that the husband would in effect be restrained from discussing his situation concerning these proceedings with any person. He would even be precluded from discussing his circumstances with a lawyer, an officer of a legal aid office, a psychologist or other professional person to whom he might turn for assistance. Or he might even have some legitimate complaint which he might wish to make to an appropriate authority from which course he would be restrained if such a broad form of order was made.
His Honour then turned to the question of whether the granting or refusing the proposed injunction could be considered just from the wife's point of view:
... if the order was not made what protection or assurance could the wife have that details of the proceedings would not be improperly published.
His Honour held that the answer to the question posed above "lies in the protections which are provided to the wife by the provisions of [FLA] s 121 and by the general law", which protections "are available to her and any other litigant in this or other relevant courts".
Johnson J concluded at [11] and [12]:
In my view, therefore, when one considers on the one hand, the serious imposition on the husband which would flow from restraint in the terms sought against, on the other hand, the protections for the wife which are provided by [FLA] s 121 and the general law, the balance in my view falls against making such an injunction.
The view that I have, therefore, is that no proper basis has been established for the Court to use its injunction power in the way that is sought.
His Honour then dismissed the application.
Leave to appeal
Pursuant to FLA s 94AA(1), leave is required to appeal from a "prescribed decree" of the Family Court. Regulation 15A of the Family Law Regulations 1984 (Cth) defines a "prescribed decree" as (relevantly) an interlocutory decree (other than a decree in relation to a child welfare matter). A decree includes a refusal to make an order.
The dismissal of the wife's application for an injunction did not finally dispose of the parties' rights. It follows that, in accordance with the well-known principles in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178, the decree sought to be appealed from is interlocutory in nature and leave to appeal is required.
At the commencement of the appeal, the question of whether leave to appeal was required was raised with counsel for the wife (Mr Gould). He suggested that leave was not required because the orders sought in the injunction application were expressed to be or could fairly be interpreted as being final orders. We do not agree, and consider that the relief sought – even if it had been granted – was interlocutory in nature. But the relief sought was not granted, and it is from Johnston J's decision to dismiss the wife's application that an appeal to this Court has been brought. As we have indicated, that decree is clearly interlocutory in nature.
We indicated to Mr Gould that the question of leave to appeal would not be determined as a separate or preliminary matter and no further submissions were made on the issue. Given that we then went on to hear the appeal and found it to be without merit, it is unnecessary for us to say more about the question of whether leave to appeal was required.
Fresh evidence
On 25 October 2013, the wife filed an application for leave to adduce further evidence. The evidence in relation to which leave was sought comprised two emails sent in the days following the hearing before Johnston J. In the first email, being an email sent by the husband to the parties' adult sons, the husband wrote, among other things (original emphasis):
A half page advertisement will be placed in the [local newspaper] comprised of a statement carrying my signature stating what has happened & is happening in relation to the Business [GE Services] which I started with a trailer & my two arms over 30 years ago & why it is the ONLY part of my life that I can get back ...
The husband also wrote that he would "fully identify each [[religious organisation]] member who has directly interfered in my business".
In the second email, a person named Mr E appears to be giving notice that he is part of the husband's "media team" and that he proposes to assist the husband to publish his complaints about the wife and her supporters. Mr Gould described Mr E as the husband's "media advisor and agent".
Mr Gould submitted that the emails should be admitted into evidence at the appeal because they comprise evidence that was not available at trial, and because they demonstrate that the threats made by the husband which had led to the wife seeking the injunction against publication from Johnson J are "no longer general in nature" and are now "particular" threats.
At the hearing of the appeal, we gave leave to the wife to rely on the further evidence. Given that the appeal itself was dismissed, it is unnecessary for us to give detailed reasons for our decision, but the further evidence explains why the matter was brought before the Full Court with such expedition and also explains why we felt it appropriate to make orders immediately, without providing reasons.
Grounds of appeal
The wife relied on two grounds of appeal. The first was that the trial Judge "erred in principle in his interpretation and application of the provisions of s114(3) and s121 of the [FLA]". The second was that the trial Judge "erred in the exercise of discretion by refusing to grant the relief sought" in circumstances where –
a)the husband intended to publish matters, the publication of which was prohibited by FLA s 121(3);
b)the dismissal of the wife's application for injunctive relief "was likely to cause or result in irreparable breaches of [FLA s 121] and consequential harm to the appellant";
c)because of the provisions of FLA s 121(8), the wife could not commence proceedings against the husband for an offence against s 121; and
d)the husband had indicated his intention to "flagrantly challenge the authority of the court and defy statutory prohibitions created by [FLA s 121]".
FLA Section 121
Having regard to Johnston J's reasons and the grounds of appeal, it is helpful to set out the provisions of FLA s 121 at this point:
121 Restriction on publication of court proceedings
(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 publication by the court of lists of 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; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
(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.
Relevant law
In Gibb & Gibb (1978) FLC 90-405, the Full Court at 77,081-2 discussed the tension between "the desirability of the public being informed as to the manner in which [the Family Court] exercises its jurisdiction, and being able to observe the operation of the court" on the one hand, and the "interests of individual privacy" on the other. It observed that, clearly, Parliament had determined that the former was to be outweighed by the latter. At that time, FLA s 121 was in a different form to the current provision, but its effect was identical for present purposes.
The judge at first instance in Gibb & Gibb had granted an injunction in the following terms:
... the wife, her solicitors, any Counsel retained by her and her mother and father be restrained from making any statement to any representative of the press or any representative of any media of communication, for giving any interview to or supplying any documents to the press or any such media in relation to these Pending proceedings or in relation in any respect to the husband, his mode of life or his sources or manner of earning income.
The wife appealed. In allowing the appeal, the Full Court said at 77,083:
... The terms of the injunction are far wider than the provisions of sec. 121. Furthermore, by the granting of the injunction the court was being placed in the situation where it might itself be called upon to deal with a breach of the injunction under its contempt powers. Except in special circumstances this is a highly undesirable situation. It was not intended by Parliament that this court should enforce the provisions of sec. 121 relating to restriction of publication of evidence, as sec. 121(4) [now s 121(8)] specifically provides that proceedings for any offence against the section should not be commenced except by, or with the written consent of, the Attorney-General, and, of course, any such prosecution could not be brought in the Family Court.
The Full Court was not persuaded that "some more limited form of injunction" should be granted to replace the injunction appealed from. It said (again, at 77,083):
... Insofar as matters of personal privacy are concerned, the husband retains the protection of sec. 121 ... as to the fact of the proceedings having been instituted, and as to accounts of the evidence or of the proceedings. This is as Parliament intended and an injunction merely restating the effect of the legislation is unnecessary and undesirable.
The "underlying principle" in Gibb & Gibb was approved by a differently constituted Full Court in Re Schwartzkopff (1993) FLC 92-381 – where it was held at 79,950 that, except in special circumstances, it is undesirable for the Family Court to "enforce by way of contempt or otherwise the obligations arising under section 121".
In Re South Australian Telecasters Ltd (1998) FLC 92-825, Nicholson CJ (sitting at first instance) was required to consider whether an injunction should be granted to prevent a television station screening a segment of a current affairs program which, it was argued, would constitute a breach of FLA s 121. The segment dealt with the outcome of interim residence proceedings in the Family Court, and would have identified both the parties to the dispute and, inevitably, the children the subject of the proceedings – not least because the parties and the children lived in a small town and would be immediately recognised by anyone in that town, irrespective of attempts to disguise voices or other anonymisation techniques.
In granting the injunction, his Honour referred to Re Schwartzkopff, but not to Gibb & Gibb. Relevantly, his Honour did not acknowledge the "underlying principle" in Gibb & Gibb to the effect that "an injunction merely restating the effect of [FLA s 121] is unnecessary and undesirable".
Nicholson CJ had the opportunity of viewing in court the proposed segment of the current affairs program. His Honour had no doubt that it would have the effect of breaching FLA s 121 and said at [41] that "for the program to proceed would involve the dissemination to both a member of the public and a member of a section of the public, namely those in the [township] environments and, in particular, such dissemination would identify [the parties] to anyone who knew any of the parties".
His Honour said at [43]:
... the problem that seems to me to emerge in the present case is not the identification of the parties so much as the fact that the identification of the parties almost inevitably would involve a similar identification of the children. It is my view that the interests of children should be protected by this Court and that they should not be the subject of a program which enables them to be identified and perhaps held up to either ridicule or curiosity or some kind of notoriety, by reason of their unfortunate circumstances.
His Honour added:
44. There are several further matters, however, that I think also tend to support the proposition that the publication of this program should be restrained. The publication complained of consists of a five-minute segment in which the natural father and mother of the children are interviewed. During the interview they complain bitterly about the fact that the judicial registrar made an interim residence order in favour of the foster mother. The tenor of those interviews conveys an impression of shock and amazement that any court could make orders of the type made in favour of a non-parent ... This content was to some extent balanced by an interview with a family lawyer who, without commenting on the facts of the case, indicated that the court makes decisions in the best interests of children, but also claimed that the Act recognises the rights of parents in relation to children.
45. While this had some balancing effect, the overall impression given by the program is that there was something very wrong about the decision of the learned judicial registrar and that it was unfair and contrary to reason for it to have been made. The segment also did not mention the fact, not only that the father was content to leave the children with the foster mother while he went to have treatment for his heroin addiction and thereafter, but that she had been at least one of the two primary caregivers to the children since 1991. It also does not mention the fact that the natural mother was content to leave the children with the foster mother during this period ...
Clearly, his Honour – who was then the Chief Justice of the Family Court of Australia – was concerned that the segment was unfair and unbalanced, and might have the effect of impairing the public's confidence in the Family Court. His Honour raised the question of whether the proposed publication might constitute contempt, and in particular a form of contempt described as "scandalising the court". In considering that question, his Honour referred to the following passages from the decision of the High Court in Gallagher v Durack (1983) 152 CLR 238 at 243 (footnote references omitted):
... The law endeavours to reconcile two principles, each of which is of cardinal importance but which in some circumstances, appear to come in conflict. One principle is that speech should be free so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice even if the comment is outspoken, mistaken or wrong‑headed. The other principle is that “it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon courts of justice which, if continued, are likely to impair their authority”: per Dixon J in R v Dunbabin; Ex parte Williams.
The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge ...
Nicholson CJ continued in Re South Australian Telecasters Ltd:
61. In the present case, I am satisfied that the publication falls into the category of publications referred to in Gallagher v Durack ... I am conscious of the competing public interests involved and the importance of the public having an opportunity to know what occurs in this Court. I am also conscious of the undesirability of this Court acting as a censor. On the other hand I would comment that the media, if it wishes to report matters in this or any other court, has a responsibility to fairly and accurately report those proceedings and this program conspicuously fails that test.
62. While mere inaccuracy or inadequacy, or a failure to fairly and adequately report, would not itself be a ground for a finding of contempt, when that also produces the result that the report has the effect of bringing the court into contempt or lowering its authority, then it does become extremely relevant.
It is clear that the circumstances in Re South Australian Telecasters Ltd were exceptional. The former Chief Justice had viewed the proposed segment and concluded that it –
a)would readily have enabled the children involved in the proceedings to be identified;
b)was unfair and inaccurate;
c)had the effect of bringing the court into contempt or lowering its authority; and
d)placed improper pressure upon a judicial officer hearing an interim matter when the matter was due to come back before the same judicial officer within a relatively short period of time: (see Re South Australian Telecasters Ltd at [68] and [69]).
In D v H [2008] QSC 35, de Jersey CJ (sitting at first instance) held at [14] that "there is a tenable view that a threatened breach of such a statutory prohibition should not lead to the grant of an injunction". Both Gibb & Gibb and Re Schwarzkopff were cited in support of this proposition.
In Xuarez & Vitela [2012] FamCA 574, Forrest J dealt with an application by an independent children's lawyer for injunctions requiring the father to remove certain content from a website published by him and to prevent him from publishing similar material again. His Honour described the background to the application, which was brought in the context of lengthy and bitter litigation between the parties, as follows:
7. The evidence supports a finding that the father has become very unhappy and disillusioned with the lawyers who have acted for him and the mother in the various matters being litigated, as well as with the ICL in these parenting proceedings. He even appears very unhappy with the judicial officers who have been determining the various matters he has been involved in over the years. His unhappiness has led to the creation of an internet website ...
8. On that website one finds clear identifying details of the domestic violence proceedings between the couple and also these current substantive Family Court proceedings. One also finds the names of the parties as well as the names and, in some cases, photographs of the various lawyers and single experts who have been involved in the proceedings in recent years. Those identifying details are published under the heading “[list of corrupt legal professionals].”
After referring to Gibb & Gibb, Re Schwarzkopff and Re South Australian Telecasters Ltd, and asking himself where the source of power to grant the injunctions sought by the independent children's lawyer might be found, his Honour said:
50. Clearly, the Full Court (differently constituted on two occasions), and the former Chief Justice of this Court, considered that there is power to grant an injunction, in cases where special circumstances exist, to restrain a contravention of s 121. Particularly, I am satisfied the power to enjoin exists where the publication in contravention of s 121 also contemptuously scandalises the Court. In my view, the power exists in such circumstances as a part of the Court’s inherent power to control its own process.
51. Additionally though, as the substantive proceedings between the parties in this case solely relate to the parenting of their children, the Court has the express power, as was pointed out by counsel for the mother, to grant such injunction as it considers appropriate for the welfare of those children. That express power is found in s 68B of the Family Law Act. Further, s 114(3) expressly confers power on the Court to grant an injunction in any case in which it appears to the Court to be just or convenient to do so as an adjunct to the valid exercise of jurisdiction otherwise under the Act.
52. In this particular case, I am satisfied that I have the power to grant the injunctions sought by the ICL arising from those sources just identified.
His Honour found that the material published on the father's website clearly contravened FLA s 121. His Honour also found at [54] that the published content "readily permits any member of the public, particularly any person who knows this family and/or the children, to identify the children and that the content of all that is published on the website could readily expose the children, so identified, to ridicule, embarrassment and notoriety".
In considering whether there were sufficient "exceptional circumstances" to justify the granting of the injunctions sought, Forrest J said at [55]:
The particularly insidious nature of the publication that I consider brings it within the “exceptional circumstances” referred to by the Full Court if the inherent power is being relied [upon] is the fact that it is published on the internet and remains published and thereby available for any person, anywhere in the world, to access it quickly and easily at any time of the day or night on an ongoing basis. Publication on the internet is quite different to one off publication in a television or radio program or in a newspaper article where the publication is limited in time and place. The internet was not nearly as widely known, understood or used at the time the Full Court determined Gibb and Re Schwartzkopff. Whilst trial on indictment before a jury might be considered as the more appropriate means of dealing with punishment for breaches of s 121, I am satisfied that continuous publication on the internet of material that offends the section and impacts upon the welfare of children who are subject to the jurisdiction of the Court is able to be restrained by injunction and should be.
His Honour added at [56] that, in his view, the material on the website "clearly contemptuously scandalise[d]" the Family Court and (at [58]) was deliberately intended to intimidate the mother's lawyers and the independent children's lawyer into ceasing to act "and to act as a deterrent to others from so acting". To that extent, it comprised "a further attack on the proper administration of justice in respect of which the right to be legally represented is a fundamental cornerstone".
Forrest J granted the orders requiring the father to remove the offensive content from his website and directed the Marshal of the Court and the Australian Federal Police to investigate whether the father had contravened FLA s 121 – with a view to the father's possible prosecution. His Honour was not prepared, however, to grant the second injunction sought by the independent children's lawyer – which sought to restrain the father from "publishing in any way whatsoever and including but not limited to publication on websites, twitter, email or post or other written material any reference to these proceedings, including but not limited to the Mother [Ms Vitela], the Independent Children's Lawyer [Ms Y], the firm [M Firm], the Mother’s current legal representatives [Ms S] and [Ms A], the Family Report writer [Mr N], the Psychiatrist [Dr R] and all references to legal and judicial officers of the Family Court and Federal Magistrates Court": Xuarez & Vitela at [19].
In dismissing the independent children's lawyer's application for the second injunction, Forrest J recorded that he was not satisfied that the father intended to publish similar material on his website in the future and said at [60]:
... I consider, in the absence of clearly identified proposed publication of material that would contravene s 121 and impact upon the welfare of children and/or contemptuously scandalise the Court, that the Full Court’s recognition of the need for caution in respect of the use of injunctive powers within the realm of that which is intended to be covered by s 121, is appropriately heeded.
In Ellershaw & Survant [2013] FamCA 510, Kent J was asked to grant an injunction restraining a party from "doing that which [FLA s 121] prohibits". His Honour declined to grant the injunction. In doing so, he cited Gibb & Gibb and Re Schwarzkopff as "authority for the proposition that it was not intended by Parliament that this Court should enforce the provisions of s 121 and that an injunction merely restating the effect of the legislation is unnecessary and undesirable", and said at [141]:
I am not satisfied that “special circumstances” of the kind considered in Re South Australian Telecasters Ltd or Xuarez and Vitela exist here such as would justify departure from the underlying principle referred to in [Gibb and Gibb] and I therefore do not propose to make such an order.
Wife's submissions
The wife's submissions (both written and as presented orally before us) focused on the first ground of appeal. The second ground was left to speak for itself.
The wife's written submissions make it abundantly clear that "the relief sought by the appellant was an injunction to restrain the respondent from breaching the provisions of [FLA s 121]": see, for example, the wife's written submissions at [1], [5], [12] and [13]. Each of the arguments raised in the submissions was directed to demonstrating that, in failing to grant an injunction to prevent the apprehended breach of s 121, the trial Judge had erred in the exercise of his discretion. For example, the wife argued at [11]:
In the present case ... the Appellant contends that the "outweighing" exercise could have only one outcome, given the absence of "inconvenience or injury" flowing to the Respondent if the injunction sought by the Appellant were granted, and reality that, only by granting such injunctive relief could "inconvenience or injury" to the Appellant be averted.
During his oral submissions, Mr Gould suggested that the injunctive relief sought before Johnston J was not solely for the purpose of restraining the husband from breaching FLA s 121. In what was clearly an afterthought, he submitted that the injunctive relief sought could also be regarded as comprising "an injunction for the personal protection of a party" pursuant to FLA s 114(1)(a). He also postulated that the injunctive relief might be perceived as being for the protection of other, unspecified, rights of the wife (presumably under the FLA), but he did not explain what those rights might be.
Although invited to do so, Mr Gould did not identify what might be regarded as "special circumstances" sufficient to justify the granting of the injunctive relief sought. He preferred to focus, instead, on the threats made by the husband relating to "public exposure" of "all that has occurred". For example, he referred to the following extracts from emails written by the husband:
·You have forced me to the point where public exposure is going to take place & that will not 'invoke the protection of the law' for the actions in the guise of 'religion' that you have played a senior role in. It is very clear that it will disgust fair minded citizens & Governments.
·Unless I receive an irrevocable undertaking by 2.30 pm today to reverse the sale to [TG Pty Ltd] forthwith I will put to the media & Government in Australia & overseas, in particular the Baroness in the UK, all that has occurred. You are advised & influenced by very foolish persons. That said, you are responsible for your cruel actions & attitude over the last 3 long years & I regret that the accounting is coming in a very public way.
·We are clear that if agreement for me to regain the Business is not reached then the public campaign will commence prior to Monday's Court Hearing
Mr Gould also referred to the following extract from the transcript of the proceedings before Johnston J on 21 October 2013 (Transcript 21 October 2013, p 6):
The husband: ... The other thing I would like to say is fortunately I am well now and I have decided that I'm going to survive and I'm going to fight. What that means is, I have to go public and will about what the cult has done to me. Not about what my wife has done to me.
His Honour: Well, if you go public on any details about any of the matters that are in this court, you have breached the [law].
The husband: Yes. I will be taking careful legal advice to ...
His Honour: So you better be very careful about all that, I would suggest.
The husband: And I appreciate that, your Honour. Fortunately, it has also been in the Supreme Court. But what I will be going public about, your Honour, is not what my ex-wife has done. I respect my ex-wife even though she has allowed these things to be done in her name. I respect her.
...
I will be going public about what the cult has done and that is very much in the public interest and it's going to happen.
We note that Mr Gould emphasised that what the husband threatened to publish was "as much directed against the [[religious organisation]] if not more, than against the wife".
Husband's submissions
The husband appeared before us without legal representation. He advised us that he had obtained legal advice after the lodging of the appeal. His lawyers prepared brief written submissions on his behalf, which were filed on 28 October 2013.
According to the submissions, the husband sought an adjournment of the appeal because he had "not had sufficient time to retain solicitors who are able to appear on an appeal or brief counsel on 29 October 2013". He otherwise opposed the granting of leave to appeal and sought that the appeal be dismissed.
At the commencement of the hearing, we advised the husband that we proposed to hear from Mr Gould, and that it may not be necessary to call upon him to address us. As explained elsewhere in these Reasons, we formed the view that the appeal was without merit. As a result, it was unnecessary to deal with the husband's foreshadowed application for an adjournment; nor was it necessary to hear from the husband in relation to substantive issues, although he made some brief submissions regarding the costs of the appeal.
Discussion
The fundamental question in this appeal relates to the circumstances in which an injunction can be granted to prevent a threatened or anticipated breach of FLA s 121.
Gibb & Gibb and Re Schwarzkopff comprise authority for the proposition that an injunction merely restating the effect of FLA s 121 is unnecessary and undesirable. Such an injunction should only be granted in special circumstances. The factual circumstances described in Re South Australian Telecasters Ltd and Xuarez & Vitela arguably fell within that category. Clearly, each case must be considered on its merits, but there can be no doubt that the mere fact that the proposed publication of material is likely to contravene FLA s 121 is insufficient to justify the granting of an injunction to prevent the publication of that material. In our opinion, evidence to the effect that the material to be published is likely to impact upon the welfare or best interests of children may be sufficient to demonstrate "special circumstances". Similarly, evidence to the effect that the material to be published contains scandalous disparagement of courts or judicial officers which is likely to impair their authority, or serious and baseless attacks on the integrity or impartiality of courts or judicial officers, may also be sufficient to demonstrate "special circumstances", particularly if it is apparent that the good sense of the community may not amount to a sufficient safeguard against such disparagement. It is unnecessary to provide further examples. The category of circumstances which might fairly be described as "special", whether individually or in combination with other circumstances, is not closed.
In spite of Mr Gould's attempts to suggest otherwise, it is clear that the wife's application for injunctive relief – as contained in the injunction application and as argued before Johnston J on that day – was no more and no less than an application for orders designed to prevent a threatened or anticipated breach of FLA s 121. We refer, in that regard, to the following:
a)Counsel for the wife on 21 October 2013 (Mr Batey) referred to the injunction application as "the s 121 application".
b)Mr Batey added (Appeal Book p 53):
... [All] we've done is pick up in s 121 a wording that certainly would be the concern of the court and instigate, we say, some action by the court. So why wouldn't the wife have the protection by way of injunction of a similar area that the court itself would consider to be a breach of the Act?
...
... So it's just picking up what the court of itself is concerned about protecting.
c)In the written submissions filed on behalf of the wife on 25 October 2013, numerous references are made to the purpose of the injunction application being to prevent a threatened or anticipated breach of FLA s 121. For example –
The Appellant challenges the order of [Johnston J] of 21 October 2013 dismissing her application for orders pursuant to s.114(3) ... to protect rights or entitlements conferred upon her as a party to proceedings in the Family Court of Australia by s.121 of the Act (wife's submissions at [1]).
The relief sought by the Appellant was an injunction to restrain the Respondent from breaching the provisions of s.121 of the Act (wife's submissions at [5]).
In this case, the Appellant sought to restrain the Respondent from committing an offence which he had indicated an intention to commit, from which he never resiled (wife's submissions at [12]).
... the "restraint" to which [Johnston J] referred ... was no more than a restraint against breaching the clear prohibitions of s.121 of the Act and, prima facie, committing an offence under the section (wife's submissions at [13]).
... In reality, all that the Appellant sought from the trial judge, and seeks from this court, is that the respondent obey the law. It is submitted that the Respondent's continuing refusal to do so entitled the Appellant to the relief sought by her, and that those orders provided only the "protection and assurance" which s.121 of the Act affords her ... (wife's submissions at [24]).
Not only was the injunction application presented to Johnston J as "no more than a restraint against breaching the clear prohibitions of s. 121", and described as such in the wife's written submissions filed 25 October 2013, but the various "exceptions" to the general prohibition contained in s 121(1) were also relied upon in the written submissions in support of an argument to the effect that the original injunctive relief sought by the wife was not overly broad. In other words, the injunctive relief sought was intended to be coextensive with, and operate in precisely the same manner as, s 121 – to the extent that the exceptions to that section should also apply to the operation of the injunction itself: wife's submissions at [14] to [21]. It is readily apparent that the wife has attempted to fuse the injunctive relief sought before Johnston J with the statutory provision itself. Such an attempt is misconceived. The statutory exceptions or safeguards contained in s 121 could not have applied to any injunction obtained by the wife, unless they were specifically included in the terms of the injunction itself.
In our opinion, the injunctive relief sought on 21 October 2013 merely restated, or restated the primary effect of, FLA s 121. In the absence of "special circumstances", therefore, it was unnecessary and undesirable for the Court to grant the relief. No "special circumstances" were identified before Johnston J, and none existed. Similarly, no "special circumstances" were identified before us. It follows that his Honour's decision to dismiss the wife's application was entirely proper, and that the appeal must therefore be dismissed.
FLA Section 114(1)(a)
In his oral submissions before us, Mr Gould submitted that the injunctive relief sought could also be regarded as comprising "an injunction for the personal protection of a party" pursuant to FLA s 114(1)(a). That argument was never raised before Johnston J on 21 October 2013. As we have said, his Honour was informed that the injunctive relief sought was "no more than a restraint against breaching the clear prohibitions of s 121" and the same approach was adopted in the wife's written submissions before us. Indeed, before Johnston J, in the grounds of appeal and in the wife's written submissions filed on 25 October 2013, it was argued on behalf of the wife that the Court's power to grant the injunctive relief sought was to be found in FLA s 114(3) which we have quoted above. By its very terms, of course, s 114(3) excludes the possibility of an injunction being granted under that subsection if s 114(1) applies. It follows that the possibility of s 114(1)(a) providing the power for the Court to make the injunctions sought by the wife before Johnston J was specifically disavowed at all relevant times until Mr Gould raised it – without preamble, and seemingly as an afterthought – before us.
Failure to raise it before his Honour is not necessarily a bar to raising it on appeal, and notwithstanding that the issue was not agitated at trial, if his Honour erred in law then the jurisdiction of an appellate court to correct that error can be invoked: Coulton v Holcombe (1986) 162 CLR 1, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481. However the argument is attended by the difficulty explained above, and the lack of any articulated ground and any written submissions. Mr Gould did not develop his argument to the effect that the injunctions sought before Johnston J could be categorised as "an injunction for the personal protection of a party to the marriage" pursuant to s 114(1)(a), other than to submit that it was a potential head of power. We do not need to determine conclusively whether s 114(1)(a) is a source of power when regard is had to the evidence of the husband which we have set out at [59] and the concession of his counsel at [60]. We are not persuaded that any special circumstances exist to support the making of an injunction, even if the jurisdictional basis suggested was accepted.
Conclusion
Whatever the source of power, we have concluded that the wife failed to demonstrate that there were "special circumstances" that would have justified a departure from the general principle described in Gibb & Gibb and Re Schwarzkopff – to the effect that that an injunction merely restating the effect of FLA s 121 is unnecessary and undesirable. As we have indicated, it follows that the appeal must be dismissed.
Costs
Having dismissed the appeal, we sought submissions from the parties on the question of costs.
Mr Gould submitted that no costs order should be made and that, if we were minded to make such an order, then costs should be "as agreed or assessed". He referred to the husband being self-represented, and suggested that his costs would be "de minimis" in any event.
In response, the husband explained that he had obtained legal advice at short notice. His lawyers had prepared brief written submissions on his behalf, which were filed on 28 October 2013.
In Casley & Casley (2010) FLC 93-449, O'Ryan J (sitting as a single member Full Court, on an appeal from a Federal Magistrate) said at [35]:
... it is well established that a litigant in person may seek an order for costs pursuant to s 117(2) of the [FLA]. Such a litigant will not recover an amount for time spent in preparing and conducting his or her case. However, such a litigant may recover disbursements being out of pocket expenses which would have been recoverable had he or she been legally represented.
The passage quoted in the previous paragraph is clearly good law: see Cachia v Hanes (1994) 179 CLR 403.
The question of costs in family law proceedings, including appeals, is dealt with in FLA s 117. The Court has a very broad discretion in costs matters.
We were not presented with any information regarding the respective financial positions of the parties, and the submissions presented to us in relation to costs were superficial. It is the case, however, that the wife has been wholly unsuccessful in these proceedings. We are satisfied therefore, that there are circumstances that justify the making of an order for costs in the husband's favour.
We propose to order that the wife pay the husband's costs of the appeal, such costs to be assessed in default of agreement.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 January 2014.
Associate:
Date: 23 January 2014
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