Sitwell & Sitwell & Anor

[2013] FamCA 812

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL AND ANOR [2013] FamCA 812

FAMILY LAW – PRACTICE & PROCEDURE – Injunctions – Application by the wife to restrain the husband from disseminating details of the proceedings pursuant to s 114(3) of the Family Law Act 1975 (Cth) – Whether granting an injunction would be just and equitable - Consideration of the imposition of restraint on the husband against the protections provided by s 121 of the Family Law Act 1975 (Cth) – Where no proper basis has been established for the injunction sought by the wife – Application dismissed.

Family Law Act 1975 (Cth) s 121

APPLICANT: Ms Sitwell

RESPONDENT: Mr Sitwell

INTERVENER: TG Pty Limited

FILE NUMBER: PAC 5769 of 2010

DATE DELIVERED: 21 October 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 21 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Champion Legal

FOR THE RESPONDENT: Mr Sitwell in person

SOLICITOR FOR THE INTERVENOR: Ms Oosterhoff, solicitor of Meyer Partners

Orders

1. That the wife’s Application in a Case filed on 21 October 2013 is dismissed.

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)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5769 of 2010

Ms Sitwell

Applicant

And

Mr Sitwell

Respondent

And

TG Pty Limited

Intervener

REASONS FOR JUDGMENT

1. This is an application by Ms Sitwell, to whom for convenience I shall refer as “the wife”, for certain injunctions as sought in an application in a case filed today, 21 October 2013.  The respondent to the application is Mr Sitwell, to whom for convenience I shall refer as “the husband”. 

2. The parties have been involved in litigation before this Court now for some years.  There remain a number of outstanding matters.  But this application seeks an order as follows:

   ·That pursuant to s 114(3) of the Family Law Act 1975 (Cth) (“the Act”) 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 s 121(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.

3. The application is opposed by the husband. 

4. The relevant head of power is s 114(3) of the Act. That provides as follows:

   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.

5. I am satisfied that there are 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.  So the first question is, “Would it be just to do so?”  The evidence in support of the application is as set out in the affidavit by the wife sworn or affirmed today.  

6. At paragraph 4 of the affidavit, the wife says:

   I refer to annexure A10 annexed hereto which is an email to me dated 15 October 2013 in which the husband states “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 and government in Australia and overseas, in particular the baroness in the UK, all that has occurred

7. And then paragraph 5 is as follows:

   I further refer to annexure A11, annexed hereto, 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.”

8. And then the wife says at paragraph 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 and the life that we live within the [religious organisation] faith.

9. And that is the evidence in support of the application.  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.

10. On the other hand, if the order was not made what protection or assurance could the wife have that details of her proceedings would not be improperly published. In my view, the answer to this lies in the protections which are provided to the wife by the provisions of s 121 of the Act and by the general law. These measures are available to her and any other litigant in this or other relevant courts.

11. 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 s 121 and the general law, the balance in my view falls against making such an injunction.

12. 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.  In my view the application is to be dismissed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 21 October 2013.

Associate:     

Date:              23 October 2013