Somerville and Somerville

[2017] FCCA 3040

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERVILLE & SOMERVILLE [2017] FCCA 3040

Catchwords:
FAMILY LAW – Practice and procedure – application for restraints to be imposed on father and moderator from posting on social media – where the father inappropriately posts information about finalised proceedings and the mother on a website – prima facie breach of s.121 of the Family Law Act 1975 (Cth) – where the father is restrained and injuncted from posting information about or photographs of the child or the mother on the internet – where the moderator of the website is restrained and injuncted from publishing information on the internet about the proceedings and the parties.

Legislation:

Family Law Act 1975 (Cth), ss.68B, 121

Applicant: MS SOMERVILLE

Respondent: MR SOMERVILLE

File Number: MLC 11607 of 2016

Judgment of: Judge Mercuri

Hearing date: 28 November 2017

Date of Last Submission: 28 November 2017

Delivered at: Melbourne

Delivered on: 28 November 2017

REPRESENTATION

Counsel for the Applicant: Shane Lethlean

Solicitors for the Applicant: Carew Counsel Pty Ltd

Advocate for the Respondent: In person

Solicitors for the Respondent: None

Counsel for the Independent Children’s Lawyer: Susan Buchanan

Solicitors for the Independent Children’s Lawyer: Clark Family Lawyers

ORDERS

1. That the father forthwith do all acts and things within his power as may be required to cause the online forum entitled ‘(omitted)’ on the (omitted) website (“the Website”) to be removed, including:

   (a)without limitation, writing to the moderator of the Website and requesting that the Website be removed immediately; and

   (b)forwarding a copy of his correspondence to the Independent Children’s Lawyer and the mother’s solicitor.

2. Until further order or with prior written consent of the mother, the father and his servants and agents be and are hereby restrained by injunction from publishing on any social medial forum:

   (a)details of the proceedings;

   (b)the names of the parties;

   (c)the names of witnesses;

   (d)the name of the child; and

   (e)photographs of the child.

3. Pursuant to section 68B of the Family Law Act 1975 (Cth), Mr M, moderator of the Website (or any other moderators or administrators of the Website jointly and severally) be and is hereby restrained by injunction from publishing on the internet:

   (a)any reference to this matter;

   (b)the mother’s name;

   (c)the father’s name;

   (d)the maternal grandmother’s name; and

   (e)the child’s name.

4. The mother’s solicitors forthwith provide a copy of paragraphs 4 and 5 of these orders and section 121 of the Family Law Act 1975 (Cth) to the moderator Mr M by email.

5. AND IT IS DIRECTED THAT the marshal of this court take all such steps as may be required so as to ensure that any breach of section 121 of the Family Law Act 1975 (Cth) is investigated fully and, if appropriate, thereafter prosecuted.

6. AND IT IS RESPECTFULLY REQUESTED THAT the Commissioner of the Australian Federal Police take all such steps as may be reasonably required so as to investigate whether any indictable offence prescribed by section 121 of the Family Law Act 1975 (Cth) in respect of proceedings involving the child X born (omitted) 2008 (“the child”) as revealed by or indicated in the documents authorised to be published by paragraph 6 of these orders.

7. IT IS FURTHER ORDERED THAT pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth), an account of these proceedings, namely:

   (a)the affidavit of the mother filed 22 November 2017;

   (b)the orders made on 17 November 2017;

   (c)the affidavit of the father filed 28 November 2017;

   (d)these orders; and

   (e)the reasons for judgment in respect of these orders

   be approved for publication to the Commissioner of the Australian Federal Police and all such police officers and persons as the Commissioner might reasonably permit or authorise.

8. There be liberty to apply on short notice and the Independent Children’s Lawyer be permitted to have the matter listed before Judge Mercuri by way of a letter to her Honour’s associate, subject to all parties receiving a copy of any such letter.

9. Pursuant to section 68L(2) of the Family Law Act1975 (Cth), X born (omitted) 2008 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the Independent Children’s Lawyer file a notice of address for service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the Independent Children’s Lawyer copies of all relevant documents relied upon;

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d)the Independent Children’s Lawyer prepare a minute of the orders he or she will recommend be made as final orders.

10. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, it is certified that it was reasonable for the applicant to employ an advocate.

11. IT IS NOTED by way of preliminary view and understanding of the relevant case law, the Independent Children’s Lawyer supports an application for change of the name of the child.

12. The father has today advised the court that Victoria Police have contacted him and will be interviewing him.

13. Mr Mark Finn of Clark Family Lawyers of 7/443 Little Collins Street, Melbourne is present this day to instruct Ms Buchanan of counsel.

14. The reasons for judgment be transcribed and placed on the court file.

15. Annexure S-3 of the applicant mother’s affidavit filed on 22 September 2017 be withdrawn.

IT IS NOTED that publication of this judgment under the pseudonym Somerville & Somerville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11607 of 2016

MS SOMERVILLE

Applicant

And

MR SOMERVILLE

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the hearing of an application in a case filed by the mother on

   
   

   22 November 2017.  This matter was previously before this court and listed for final hearing commencing on 13 November 2017 in relation to parenting and property matters. 

3. After four days of hearing, the parties reached agreement and final parenting and property orders were made by consent on 17 November 2017.  Those orders provided for the mother to have sole parental responsibility of the child, that the child live with the mother and that the mother and child be permitted to relocate to Brisbane.  There were various other orders made by consent. 

4. In her application in a case, the mother alleged that following the making of those orders, a website was established in which the names of the mother, the father and a witness in the case were disclosed. She alleged that that was done in a matter inconsistent with s.121 of the Family Law Act 1975 (Cth) (“the Act”). The mother has sought orders of this court in relation to that website.

5. The Independent Children’s Lawyer is also a party to these proceedings. 

6. The father has today filed an affidavit and a response to the mother’s application in a case where he denies that he had any involvement in the website or the content of the material contained in that website.  The father does not consent to the orders proposed in the mother’s application. 

7. The Independent Children’s Lawyer and the mother have put forward a minute of proposed orders to which they both consent.  The father has indicated that he does not consent to those orders although, in the course of responding to questions from me, indicated that he did not oppose a number of them.

8. In addition to seeking orders against the father specifically or seeking orders that the father take certain actions to deal with the website and the information contained in the website, the mother and the Independent Children’s Lawyer also seek that the matter be referred to the marshal of the court and to the Commissioner of the Australian Federal Police for investigation to determine whether, in fact, there has been a breach of s.121 of the Act and, if so, whether it is appropriate to prosecute under that section.

9. I also note that the mother, in addition to seeking orders against the father specifically, is also seeking an injunction against the administrator or moderator or administrators or moderators of the said website to restrain them from continuing to have the material accessible on their website. 

10. I am satisfied that the court does have power under s.68B of the Act to grant such an injunction in these circumstances and I am satisfied, on the basis of the submissions that have been made by the mother and the Independent Children’s Lawyer, that it is appropriate in the circumstances to grant the injunction sought, and that it is in the best interests of the child and aimed at addressing welfare concerns for the child.

11. I also note that whilst the father does not consent to the proposed orders, he indicated that he did not oppose an order being made either directing him to take any such action as is necessary to have the website removed to the extent that that is within his power to do so, nor did he object or oppose a reference to the marshal of the court or the Commissioner of the Australian Federal Police. 

12. I also note that the mother and the Independent Children’s Lawyer are seeking orders that the costs of today be reserved and an order that the sum of $10,000 which was agreed to be given to the father as part of the property settlement as part of the consent orders to be held on trust pending the further outcome of these proceedings. 

13. I am not satisfied, in the circumstances, that an order in these terms is warranted today.  I note that the father, in his affidavit material, denies any allegations that he was involved in the disclosure of any information to the moderator, the website or to anyone who placed any comments on the website and in the circumstances where that evidence is before the court, I am not satisfied that he ought to be ordered to pay costs.  I do not propose to reserve costs for the same reasons just given.

14. I also have regard to the fact that the matter is being referred to the Commissioner of the Australian Federal Police for investigation and, depending on the outcome of that investigation, further issues can be raised at a later point in time. 

15. I also note that in the mother’s application in a case, she sought permission to change the name of the child, although that application is not being pressed today so I do not intend to deal with that any further.

16. After having heard submissions from the parties, I propose to make the following orders (see orders).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 8 December 2017