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Xuarez & Vitela

Xuarez & Vitela

Case [2012] FamCA 574 25 July 2012

Statutory Construction

Family Law

Statutory Interpretation

Civil Procedure

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FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA

[2012] FamCA 574

FAMILY LAW – INJUNCTIONS –– Restraint of publication - where material relating to proceedings has been published on the internet – where the content of the website names the parties, single expert witnesses, and solicitors and barristers who have assisted parties to the proceedings – where the content of the website expressly identifies the proceedings by name and file number - whether the application seeking an injunction is vexatious, frivolous and malicious – whether injunctive relief founded on a contravention of s 121 is “proceedings for an offence against this section” – whether an injunction can be granted – whether s 121 confers power to grant injunction –whether there are “special circumstances” – where the content that is published contemptuously scandalises the court – where the nature of the content is insidious - where the content is available constantly on the internet and is updated – where the circumstances are considered “special” - where the continued attack on the lawyers representing the mother and the children is deliberately intended to intimidate the lawyers into ceasing to act for the mother or the children – where the power to grant the injunctive relief is inherent – where the power to grant the injunctive relief is also found in s 68B and s 114(3) - whether the Independent Children’s Lawyer should be dismissed – where the Independent Children’s Lawyer has not breached duties - where the Independent Children’s Lawyer should not be dismissed

Bonsai v Bretton [2010] FamCA 1237
Gallagher v Durack (1983) 152 CLR 238
Gibb and Gibb (1978) FLC 90-405
Hinchliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308
In the Marriage of Bennett [1991] FLC 92-191
In the Marriage of Harris [1977] FLC 90-276 at 76, 476
Johnson v Johnson (2000) 201 CLR 488
Knibbs v Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative [2000] FLC 93-045
Pagliarella (1993) 16 FamLR 688
Prentice & Bellas and Anor [2012] FamCA 108
Re Schwartzkopff (1993) FLC 92-381
Re South Australian Telecasters Ltd (1998) FLC 92-825
Wotherspoon & Cooper [1981] FLC 91-029

Australian Constitution s 80
Family Law Act 1975 s 68B(1) , s 114(3) s 118, s 121(9)(g),
Family Law Rules Rule 13.07, 13.15, 16.08
Domestic and Family Violence Protection Act 1989 (Qld)
Vexatious Proceedings Act 2005 (Qld)

APPLICANT:

Mr Xuarez

RESPONDENT:

Ms Vitela

INDEPENDENT CHILDREN’S LAWYER:

Ms Y

File Number omitted to comply with s 121 Family Law Act 1975 (Cth)

DATE DELIVERED:

25 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

16 July 2012

REPRESENTATION

FOR THE APPLICANT:

Mr Xuarez in person

COUNSEL FOR THE RESPONDENT:

Mr P of Counsel

SOLICITOR FOR THE RESPONDENT:

S Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr F of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

M Firm

Orders

That the father forthwith remove from the website … [domain name omitted] all references to these proceedings … [file…

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 Xuarez & Vitela

Details

AGLC: Xuarez & Vitela [2012] FamCA 574
Case: [2012] FamCA 574
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the Independent Children’s Lawyer (ICL) for injunctive relief against the father, Mr. Xuarez. The dispute arose from the father’s creation and maintenance of an internet website that published identifying details of ongoing Family Court proceedings, including the names of the parties, their children, legal representatives, and expert witnesses. The mother supported the ICL’s application. The father, representing himself, argued that the website was an exercise of his freedom of speech to expose alleged corruption and sought similar injunctions against the mother and other third parties.

The court was required to determine whether the father’s publication of material on the website constituted a contravention of section 121 of the *Family Law Act 1975* (Cth), which restricts the publication of identifying information about family law proceedings. Further issues included whether the court possessed the power to grant injunctive relief in these circumstances, whether the application for injunctions was vexatious, frivolous, or malicious, and whether the Independent Children’s Lawyer should be dismissed from the proceedings. The court also considered the father’s various counter-applications, including those seeking the prosecution of the mother for alleged offences.

Justice Forrest found that the father was personally responsible for the material published on the website and that he had the capacity to remove it but chose not to, even stating he would defy a court order to do so. The court determined that the father’s actions constituted a clear contravention of section 121 of the *Family Law Act*. The court held that it had the inherent power to grant injunctive relief, as well as specific power derived from sections 68B(1) and 114(3) of the Act, to prevent ongoing breaches of section 121 and to protect the welfare of the children. The court found no basis for dismissing the ICL, as she had not breached her duties.

The court ordered the father to forthwith remove all references to the proceedings from the specified website, including names of parties, legal representatives, and experts. The court also ordered that the Marshall of the Court take steps to ensure any breach of section 121 revealed by the material be investigated and, if appropriate, prosecuted. Furthermore, the court ordered that certain documents, including the ICL’s affidavits and the father’s affidavit, along with the court’s reasons for judgment, be approved for publication to the Commissioner of the Australian Federal Police for investigation into potential indictable offences under section 121. All other outstanding applications by the father were dismissed, save for one application by the mother which was adjourned for a future hearing.

Orders