Xuarez & Vitela

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.