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Xuarez & Vitela [2012] FamCA 574

Categories: Injunctions, Restraint of Publication
Tags: , , , , , , , , , , ,

Judge Name: Forrest J
Hearing Date:
Decision Date:25/07/2012
Independent Children s Lawyer: Ms Y
Applicant: Mr Xuarez
Respondent: Ms Vitela
Solicitor for the Applicant: Mr Xuarez in person
Counsel for the Applicant: Mr P of Counsel
Solicitor for the Respondent: S Firm
Solicitor for the Independent Children s Lawyer: M Firm
Counsel for the Independent Children s Lawyer: Mr F of Counsel
File Number: File Number omitted to comply with s 121 Family Law Act 1975 (Cth)
Legislation Cited: 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)
Cases Cited: Bonsai v Bretton [2010] FamCA 1237
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238
Gibb and Gibb (1978) FLC 90-405
Hinchliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (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] HCA 48; (2000) 201 CLR 488
Knibbs v Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative [2000] FLC 93-045
Pagliarella [1993] FamCA 64; (1993) 16 FamLR 688
Prentice & Bellas and Anor [2012] FamCA 108
Re Schwartzkopff (1993) FLC 92-381
Re South Australian Telecasters Ltd [1998] FamCA 117; (1998) FLC 92-825
Wotherspoon & Cooper [1981] FLC 91-029
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant


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Orders

That the father forthwith remove from the website … [domain name omitted] all references to these proceedings … [file number omitted], including but not limited to all references to the mother’s name, the father’s name, the names and any details of the single experts Mr N and Dr R, the names, photographs and any details of any of the solicitors (and the firms for which they work) and the barristers who represent, or who have represented, the mother and/or the father in parenting proceedings pursuant to the Family Law Act 1975 (“the Act”), the name and any details of the Independent Children’s Lawyer and the firm for which she works and the barristers who represent, or who have represented, her in these proceedings, and all references to judicial officers of this Court or the Federal Magistrates Court in respect of decisions or determinations they are said to have made or not made.

That within 21(twenty-one) days of the date hereof each of the parties to these proceedings serve on each of the other parties a list of documents to which the duty of disclosure applies pursuant to Rule 13.07 of the Family Law Rules 2004.

IT IS DIRECTED THAT

The Marshall of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Act revealed by the material specified in paragraph 5 of these Orders is investigated fully and, if appropriate, thereafter prosecuted.

IT IS RESPECTFULLY REQUESTED THAT

The Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any indictable offence prescribed by s 121 of the Act in respect of proceedings involving the children, L born … 1995, C born … 1998, D born … 2000 and B born … 2003, has been committed by the father as revealed by, or indicated in, the documents authorised to be published by paragraph 5 of these Orders.

IT IS FURTHER ORDERED THAT

Pursuant to s 121(9)(g) of the Act, an account of these proceedings, namely:

The affidavits of the Independent Children’s Lawyer filed 4 April, 2012 and 16 July, 2012;

The affidavit of the father filed 18 April, 2012;

These orders;

The Reasons for Judgment delivered today

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.

All outstanding applications, save for the Application filed by the mother on 12 July, 2012 be dismissed.

The Application in a Case filed by the mother on 12 July, 2012 be listed for hearing before me on a date to be fixed by a Registrar of the Court in consultation with the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & Vitela has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Introduction

The father and mother in this case have been locked in conflict since the end of their de facto relationship in 2005. There has been litigation between them about the parenting of their children over those several years and they have also been involved, in that time, in substantial litigation in State courts in respect of alleged domestic violence.

In addition, the father has been involved in much other litigation in the courts of Queensland. That involvement culminated in his being made subject to a prohibition order by a judge of the Supreme Court of Queensland pursuant to the Vexatious Proceedings Act 2005 (Qld). That prevents him from bringing any proceedings in a Court or Tribunal in the State of Queensland without the leave of a Judge of the Supreme Court of Queensland.

In respect of the parenting dispute between the mother and the father, final parenting orders were made in the Federal Magistrates Court in Brisbane on 24 August 2007. Those orders provided for four of the couple’s six children who remained under the age of 18 and, thereby, subject to Family Law Act parenting orders jurisdiction, to live with the mother and spend certain time with the father.

However, by a fresh Initiating Application filed on 21 December 2010 in the Federal Magistrates Court, the father seeks to have those existing parenting orders “vacated” and replaced by some new ones. Although the father described that substantive application as one of seeking to enforce the existing parenting orders, it is clear from the Initiating Application that he seeks fresh substantive parenting orders on a final basis.

The substantive parenting proceedings have progressed to the point where, by early this year, the Independent Children’s Lawyer (“ICL”) had obtained single expert reports from a psychiatrist, Dr R, and a family report writer, Mr N. At the hearing before me, the Court was informed by the father that the family report writer had made a recommendation that the children spend no time with the father at all. At the same time, Counsel for the ICL informed me that Dr R’s report included a statement of the doctor’s opinion that neither parent suffered from a diagnosed psychiatric disorder.

Shortly after those expert reports were prepared, the substantive proceedings were transferred by a Federal Magistrate to this Court and the matter was awaiting case management towards trial when the ICL filed the Application in a Case currently being determined.

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. That website publishes under the domain name

“…”. [domain name omitted]

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].”

At around the time the psychiatrist’s report was filed in these proceedings, the father wrote to the ICL, drawing her attention to the website. The published content of that website as at 3 April 2012 is in evidence before me as exhibit C to the affidavit of the ICL filed 4 April 2012.

After viewing the content of the website, the ICL wrote to the father asking him to remove what she described as “the objectionable content” from the website. The father responded unequivocally. He stated firmly that he would “NOT remove the content from [his] website”. He actually used the words “my website” in his correspondence to the ICL.

The ICL then applied to the Court for injunctions directed against the father, aimed at having him remove that content and preventing him from publishing it again. The father responded to that application with several of his own interim applications.

The Applications for Immediate Determination

The ICL’s Application in a Case was filed on 4 April, 2012. The father filed his own Application in a Case on 11 April, 2012 and then he filed a Response to the ICL’s Application in a Case on 18 April, 2012. He filed another Application in a Case on 9 May, 2012.

On 21 May, 2012, I commenced to hear the ICL’s Application in a Case and the application contained in the Response to an Application in a Case filed by the father as well as the further Application in a Case filed by the father on 9 May, 2012. The mother supported the Application in a Case of the Independent Children’s Lawyer.

The matter was not able to be concluded on 21 May and was adjourned part-heard to the first available hearing date before me, which was 16 July, 2012.

As already noted, the father had filed an Application in a Case on 11 April, 2012, prior to filing his Response to the ICL’s Application in a Case. When the matter was before me for hearing on 21 May, I did not understand that I was hearing that particular Application in a Case. On 16 July, the father asked the Court to also hear and determine that one. In fact, the father was firm in his submission that I was to hear that application as well, asserting that he was informed by a Registrar of the Court that I would be hearing that application as part of these proceedings.

Despite counsel for the mother informing the Court that he was not aware of that particular Application in a Case, as he was instructed the mother had not been served with it, and despite counsel for the ICL submitting that it was the ICL’s understanding that this particular application was to be heard by a Registrar on a later date, I determined that it was in the interests of justice and of the parties to hear that Application in a Case at the same time as the other matters. Neither the mother nor the ICL maintained an objection to that proposed course.

Further, the father had also sought to file a further Application in a Case in the proceedings just a few days before 16 July, 2012. That had been referred to me by the Registrar for consideration as to its listing. On 16 July, the father asked that I hear and determine that Application in a Case also. Again, neither the mother nor the ICL opposed the Court hearing it that day, despite both parties only being served with that Application in a Case and the supporting affidavit of the father at Court during the hearing on 16 July.

The Relief Sought

The ICL’s Application in a Case filed 4 April, 2012 seeks injunctive relief against the father in two forms. The ICL specifically seeks a mandatory injunction against the father that he “forthwith remove from the website “ [domain name omitted] all references to these proceedings [file number omitted], including but not limited to the mother, 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.”

Secondly, a further injunction is sought restraining 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”.

In his Response to the Application in a Case filed 18 April, 2012, the father seeks an order dismissing the ICL’s application as “vexatious, frivolous, and malicious pursuant to s118 of the Family Law Act”, as well as an injunction against the mother in terms similar to the second injunction sought against him by the ICL. He also makes application for the mother to be “punished and prosecuted for numerous offences to section 121[sic]” of the Family Law Act, and for the ICL to be removed as ICL in the substantive proceedings. All of those applications of the father are opposed by the ICL and the mother.

In his Application in a Case filed 11 April, 2012, the father seeks orders that the ICL and the mother comply with a request for a list of documents, file affidavits stating that a specified document, or class of documents, does not exist or has never existed, and file Undertakings as to Disclosure. Those are opposed by the ICL and the mother in the specific form they are currently sought in.

In his Application in a Case filed 9 May, 2012, the father seeks orders that again the mother be prosecuted for offences or breaches of s121 of the Family Law Act, that he be given leave to release material to the Director of Public Prosecutions and the Attorney-General, and that the mother again be enjoined from publishing in any way whatsoever any reference to these proceedings. Those are opposed by the mother.

In his final Application in a Case filed by leave on 16 July, 2012, the father seeks orders that the mother be prosecuted for giving false testimony, that she be prosecuted for perjury, that she be prosecuted for offences relating to the administration of justice and that she be prosecuted for “Other Offences.” Unsurprisingly, that application is opposed by the mother.

At the hearing of these applications on 21 May and 16 July the father represented himself and was assisted by an interpreter whose attendance had been arranged through this Court’s administration. The father sometimes spoke in English though. In addition, the affidavit evidence he relied upon was all in English and bore the notation that it had been prepared by the father himself and had no notation of having been translated or interpreted. I was satisfied that the father did demonstrate that he had a reasonably good command of English, both in comprehension and expression. I was satisfied that the father understood all that was happening and being said, including all the questions that were put to him and the other parties from the bench.

At the hearing, the mother was represented by solicitor and counsel and the ICL was represented by counsel.

At the start of the second part of the hearing on 16 July 2012, a most significant thing happened. The ICL, with the leave of the Court, put into evidence a further affidavit that included as “Exhibit D” another print out of pages of the subject internet website as at 13 July 2012. Those pages, when compared with the printed content of the website at the earlier April date, showed that there had been amendments to the content of the website between the two hearing dates of 21 May and 16 July. Those amendments included the addition of details identifying the barristers who appeared as counsel for the ICL and for the mother in these interim proceedings under the list of “[corrupt legal professionals]”.

At the first part of the hearing on 21 May, the father asserted that the website is run by members of his family from overseas and that he has no control over it. However, he clearly referred to it as his website in correspondence to the ICL that is in evidence. Further, at the second part of the hearing on 16 July, he readily conceded that he was responsible for the fresh details that were added to the website in the period since the matter was previously at Court.

I am, accordingly, completely satisfied that the father is personally responsible for the material that has been published to the subject website. I am also satisfied that he could cause it to be deleted from the website or for the website to be closed down if he so wished to act. I am also satisfied that the father does not want to delete any of the material from the website or close it down completely. He clearly confirmed as much at the hearing. Further, I was particularly concerned to hear the father confidently assert to the Court that he would not delete any of the content from the website, even if ordered to. Disturbingly, he actually went on to inform the Court that he would be prepared to go to prison if he had to as a consequence of his actions. Of course, the Court cannot allow itself to be moved from determining the various applications on their merits, according to law, by such bold assertions.

The Competing Arguments in respect of the Independent Children’s Lawyer’s Application

Counsel for the ICL focused his submissions around s 121 of the Family Law Act. He submitted that the father had breached, and continues to breach s 121. He submitted that the ICL had written to the Director of Public Prosecutions and given notice that this application was being made and that the DPP had written back informing her that he did not intend to appear. Counsel submitted that the injunctions sought need to be made to prevent an ongoing breach of s 121.

Counsel for the mother, in support of the ICL’s application, submitted that the father’s publication of material on the website was particularly problematic because it indentified the proceedings in this Court and also the domestic violence proceedings and the mother and the father by name, thus facilitating the easy identification and embarrassment of their children by persons searching the internet. He submitted that as such, the publication was done in clear contravention of s 121 of the Family Law Act and a similar section in the Domestic and Family Violence Protection Act 1989 (Qld), and that injunctive relief should issue from the Court in the form sought by the ICL, essentially to protect the welfare of the children of these parties. He submitted that either s 68B(1) or s 114(3) of the Family Law Act provided a source of power to grant the injunctions sought.

The father did not concede that the material published on the internet website contravened s 121 of the Family Law Act or any other statutory provision. His submission was that freedom of speech exists in this country and that he could publish all of the information on the website to expose legal and judicial corruption as a matter of personal freedom. He also submitted that if injunctions were to be issued against him then the very same injunctions should be issued against the mother and also against many other third parties who publish similar material to other internet websites.

Section 121 of the Family Law Act

Determination of the applications requires some consideration of s 121.

That section provides:

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.

Section 121(5) makes an offence against the section an indictable offence. Further, s 80 of the Constitution of the Commonwealth of Australia provides:

Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Clearly, proceedings for an offence against s 121 must be heard on indictment and tried by a jury and can only be commenced by or with the written consent of the Commonwealth Director of Public Prosecutions.

This Court does not itself prosecute or try persons who might be considered to have contravened s 121. To the extent that the father’s applications seek to achieve such an outcome as against the mother, they are incompetent. At best, the Court can direct the Marshall of the Court and/or the Australian Federal Police to investigate and take steps to ensure any breach of s 121 of the Family Law Act is prosecuted. See Prentice & Bellas and Anor [2012] FamCA 108 per Murphy J.

As I indicated during oral argument, I do not consider the application for injunctive relief against the father that is founded on an alleged contravention of s 121 falls within the meaning of “proceedings for an offence against this section” as found in s 121(8). The ICL’s application does not seek to have the father tried or punished for contravening s 121. As such, I do not consider that the ICL needed to give notice to, or get the consent of, the DPP before proceeding with this application.

However, s 121 does not include any provision expressly conferring power on this Court to grant injunctions either requiring cessation of continued publication in contravention of s 121 or enjoining future publication in contravention of the section. Clearly then, to be able to grant the injunctions sought by the ICL, the source of power to do so must be found other than expressly in s 121 itself.

Can the Injunctions Sought Nevertheless be Granted?

34.This question has been considered before in this Court. In Gibb and Gibb (1978) FLC 90-405, the Full Court upheld an appeal against an injunction being issued by the judge at first instance that provided:

[T]he 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 or 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.

At that time, s 121 of the Family Law Act was differently worded to how it is worded today, but it still prohibited any person from printing or publishing (a) any statement or report that proceedings have been instituted in the Family Court; and (b) any account of evidence in proceedings instituted in the Family Court or any other account or particulars of any such proceedings.

The learned Judge at first instance had said, when granting the injunction: “It is only enforcing the law anyhow”. In respect of that remark, the Full Court observed though that the terms of the injunction granted by the trial Judge were far wider than the provisions of s 121 at the time. The Full Court went on to say at p 77,083:

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) specifically provides that proceedings 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.

…it remains to consider whether some more limited form of injunction should now be granted.

We do not consider that there should be. Insofar as matters of personal privacy are concerned, the husband retains the protection of sec. 121 of the Act 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.

In the later decision of Re Schwartzkopff (1993) FLC 92-381, the Full Court was dealing with contempt proceedings brought by a Registrar of the Court against persons associated with the publication of an account of a demonstration protesting the imprisonment of a man who was asserted to have “been jailed for two years only because he wanted to see his children”. A man, with a very similarly spelt name had in fact been sentenced to two years imprisonment for repeated breaches of non-molestation orders protecting his wife. It was alleged against the respondents, amongst other things, that they had committed contempt of court in publishing an account of proceedings identifying one of the parties to the proceedings. One of the arguments the Full Court heard was that a charge of contempt could not lie in respect of any offence under s 121 of the Family Law Act.

In the course of its decision, the Full Court approved that which they referred to as “the underlying principle” from the passage quoted from Gibb set out above and went on to say:

Except in special circumstances it is not desirable that this Court should enforce by way of contempt or otherwise the obligations arising under section 121. This case, in our view, presents no special circumstances in which to depart from that principle.

In Gibb, the Full Court was dealing with an injunction granted to restrain a future potential contravention of s 121 where there was no evidence that any such contravention was actually intended in the future. In Re Schwartzkopff, the Full Court was dealing with proceedings to have persons dealt with for contempt for contravening s 121 by way of a one-off publication of a story in a newspaper.

More recently still, in 1998, the former Chief Justice of the Court, Nicholson CJ was confronted with the same issue as to whether an injunction should issue to restrain a future potential contravention of s 121. In Re South Australian Telecasters Ltd (1998) FLC 92-825, his Honour determined an application for an injunction to prevent a television station screening a segment which, according to the applicant, would constitute a breach of s 121.

His Honour was able to view in Court the segment proposed to be published as part of the television program. He observed that he “would have thought … that it undoubtedly would have had the effect of breaching section 121(1) interpreted in the light of section 121(3) because anyone who knew either of the parties would have been able to identify them..” and that a broadcast of the program would “identify them to anyone who knew any of the parties”.

Nicholson CJ acknowledged, by reference to the decision in Re Schwartzkopff, that “it does not follow that mere identification of the fact that the law may be breached by the proposed program means that an injunction should lie”. By this, I consider he was referring to the acknowledgment by the Full Court that, except in special circumstances, injunctions should not be the means of preventing potential breaches of s 121. Nevertheless, as the decisions of the Full Court clearly left open, his Honour recognised that were such “special circumstances” to exist, an injunction can issue. His Honour identified, at [43] that which he considered to be the special circumstances in the following way:

However, 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. Therefore, it follows that I consider that this part of Mr. [R’s] case has been made out.

His Honour went on to discuss the question as to whether the segment of the proposed program amounted to a contempt. He referred to the High Court’s decision in Gallagher v Durack (1983) 152 CLR 238. In that decision, in the joint judgment of the then Chief Justice Gibbs, Mason, Wilson and Brennan JJ (as they then were), their Honours said at page 243:

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.

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, and the summary remedy of fine or imprisonment ‘is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable’.

His Honour determined that he was satisfied that the segment proposed to be broadcast fell into the category of publications referred to in Gallagher v Durack and, after acknowledging that he was conscious of the undesirability of the Court acting as a censor, remarked that the media has a responsibility to fairly and accurately report proceedings upon which it wishes to report and that the segment proposed to be broadcast failed the test. His Honour determined that the segment would, if broadcast, give a very distorted and unfair account of the proceedings and would bring the Court into contempt and lower its authority. His Honour also went on to find that the broadcast would place improper pressure upon the judicial officer hearing the proceedings in the Court and could, potentially, give rise to an apprehension, however unfounded, that influence has been exerted in one way or another. For all of these reasons his Honour determined that the publication should not proceed. His Honour determined to enjoin the television station from proceeding with the broadcast but, in the end, accepted an undertaking from the station not to broadcast it.

His Honour clearly considered that he had the power to grant the injunction because publication would have breached s 121 and would have been a contempt of the Court. Nevertheless, his Honour did not indicate where he considered the source of power to grant the injunction emanated from and did not ultimately have to grant the injunction.

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.

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.

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.

Should the Injunctions sought by the Independent Children’s Lawyer be Granted?

By the content the father has published on his website, the father has, at least in my view, contravened s 121 of the Family Law Act. He has published by electronic means, thereby disseminating to the public, an account of proceedings under the Family Law Act that identifies the proceedings, the parties to the proceedings, independent expert witnesses in the proceedings and other persons who are associated with the parties to the proceedings, namely solicitors and barristers involved. I am satisfied that by including the actual names of the parties, the file number of the proceedings, reference to the fact that the proceedings are in this Court and are about the parenting of the identified parties’ children, as well as allegations of parental alienation having been perpetrated by the mother assisted by her lawyers, that an “account of ..proceedings .. or of any part of proceedings” has been published Hinchliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308 per Kenny J at [53] – [54].

I am satisfied 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.

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 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.

Furthermore, in my view at least, the content that is published clearly contemptuously scandalises this Court. For example, the following passages are published:

[Quoted text alleging corrupt behaviour by legal professionals and judicial officers omitted to comply with s 121 Family Law Act 1975 (Cth)]

Although the Court has to consider that the good sense of the community might be a sufficient safeguard against the damage these attacks can do to the rule of law in this country, in the specific context of this case, where I am satisfied, at least, that the publication otherwise contravenes s 121 and identifies the particular proceedings in this Court, I am satisfied that the continuous contemptuous scandalising of this Court should be restrained.

There is another aspect to this insidious publication that I consider is also relevant to determining that there is a need for injunctive restraint. I am satisfied that the continued public attack on the integrity of all of the lawyers involved in representing the mother and the children in this case is deliberately intended to intimidate them into ceasing to act for the mother or the children and to act as a deterrent to others from so acting. As such, I consider it is a further attack on the proper administration of justice in respect of which the right to be legally represented is a fundamental cornerstone. The mother is entitled to respond to the substantive and interim applications of the father and to engage legal representation free from the pressure of knowing that any solicitor or barrister who acts for her will be subject to the type of scurrilous attacks the father makes through the published content on his website. So too, in my view, is the ICL.

The father did not persuade me that the ICL’s application for injunctive relief is vexatious, frivolous or malicious. Accordingly, I am satisfied that there is a need in this particular case for the granting of injunctive restraint against the father ordering him to remove, forthwith, the offensive content that he has published on his website and I will so order. I also direct the Marshall of the Court and the Australian Federal Police to investigate whether the father has already contravened s 121, as I consider the evidence before me establishes, with a view to his possible prosecution.

That said, in respect of the second part of the injunctive relief sought by the ICL, 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 this case, I am not satisfied that the father currently intends to publish any such content in the future so as to justify granting the second injunction sought by the ICL. I will not grant that injunction.

Should any of the other Orders sought by the Father be made?

Although the father put extensive written evidence before the Court in the form of his own affidavits, and although he took the Court to a limited number of documents from amongst bundles of documents produced under subpoena, he was not able to demonstrate to me, with any cogent evidence, that the mother had ever contravened s 121 of the Family Law Act, or that she proposed to publish material that impacted upon the welfare of the children and/or contemptuously scandalises the Court, such as to justify the grant of an injunction against her as contended for by him. The father’s application for such an injunction is dismissed.

The father also seeks an order that the ICL be removed from that role. Although he made no oral submission as to why the Court would be persuaded to take that course, I consider, from the limited references to the matter that are included in the father’s evidence, that he founds such application on an assertion that the ICL is biased in favour of the mother.

The father asserts in evidence that the ICL has “never applied to the Court to punish [the mother]” for the “numerous offences” she has committed. He asserts that the ICL is not seeking orders against the mother and does not mention her in her affidavit. He asserts, in a letter to the ICL that the ICL put into evidence, that the ICL only takes into account and believes everything that is said by the mother and her witnesses.

I do not consider there would be any merit in a submission (even though the father did not actually make such a submission) that these bare assertions, otherwise unsupported by more cogent evidence, should persuade me that the ICL is somehow acting other than in accordance with her duty to the Court in this particular case. The fact that the father does not consider the ICL is on his side is not sufficient justification for discharging the ICL from her role in these proceedings. Good discussions of the duty and role of the ICL and the principles applicable to a determination of an application for discharge can be found in the decisions of Murphy J in Knibbs v Knibbs [2009] FamCA 840 and O’Reilly J in Bonsai v Bretton [2010] FamCA 1237. There, the following decisions are also referred to: In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191; In the Marriage of Harris [1977] FLC 90-276 at 76, 476; Lloyd & Lloyd & the Child Representative [2000] FLC 93-045; Pagliarella (1993) 16 FamLR 688 and Wotherspoon & Cooper (1980) 7 FamLR 71; [1981] FLC 91-029 at FLC 76, 282

Without more, I dismiss the father’s application to have the ICL removed as yet another attempt by the father to intimidate the ICL, with a view to coercing her into not discharging her duty impartially. As O’Reilly J noted in Bonsai v Bretton at [33], the test for an ICL’s apprehended bias should be the same as the test for the appearance of bias in a judge as made clear by the majority of the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11]-[14]. That test is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the question the judge is required to decide. Applying that to the ICL, the fair minded lay observer would be asked to consider whether she apprehends that the ICL might not bring an impartial or unprejudiced mind to the discharge of her duty to the Court and the children whose best interests she represents. I am clearly satisfied that the fair minded lay observer would not consider that to be the case in this matter.

The father also applies for an order that he be granted leave to “release material” to the Department of Public Prosecutions and the Attorney-General. He does so without particularising in any fashion the “material” in respect of which he seeks such leave. Accordingly, I am not persuaded to grant the leave the father seeks but hasten to say that should the father have any cogent evidence that any offences have been committed by the mother, any solicitors or barristers or any judicial officers of this Court or any other Court, then he should not hesitate to present any such evidence to the police and/or the Attorney-General.

Finally, the father seeks specific orders in respect of disclosure by the other two parties. He deposes to having made a written request for disclosure pursuant to Rule 13.20 of the Family Law Rules 2004 on 9 March 2012 and that neither the mother nor the ICL has complied with that request.

That rule does state that a party may, by written notice, ask another party to give the requesting party a list of documents to which the duty of disclosure applies “after a case has been allocated to a first day before the Judge”. “First day before the Judge” is defined in the Dictionary to the Rules. It means:

if Division 12A of Part VII of the Act applies to the whole case – the first day of trial (rule 16.08);

if that Division does not apply to the whole case – the first procedural hearing before the Judge (rule 16.11); or

if the case includes applications to which that Division applies an other applications to which it does not – the first of the events for the case mentioned in paragraphs (a) and (b) (rule 16.14).

The substantive proceedings in this matter are solely parenting proceedings. As such, Division 12A of Part VII of the Act applies to the whole case. Therefore, “first day before the Judge” means, in this matter, “the first day of trial”. Rule 16.08 provides for a trial management system that previously applied but currently does not actually apply in the Brisbane Registry of this Court. Trials are not conducted in that way currently. There is usually now no time lapse between the first day of trial and the second day. Matters are generally allocated for trial before a Judge on specific dates after the parties have all certified to the Court that the matter is ready for trial in all respects. That would be too late for disclosure as it is regarded as a necessary part of the trial preparation process of the parties.

Accordingly, although pursuant to a strict interpretation of Rule 13.20 the other parties could safely not respond to the father’s request for the provision of a list of documents to which the duty of disclosure applies because the matter has not yet been allocated “a first day before the Judge”, I consider it appropriate for the father to expect provision of lists of documents to which the duty of disclosure applies from the other parties at this point in time. Indeed, counsel for the mother informed the Court that the mother is quite prepared to comply with her duty of disclosure. Counsel for the ICL gave me no cause to consider that the ICL is not similarly prepared to comply with the duty of disclosure. Accordingly, so there is no doubt about how the obligation is to be met in this case by any of the parties, I will make an order that all parties serve on the other parties their respective lists of documents to which the duty of disclosure applies within 21 days.

Although the father’s application does not specifically say so, I apprehend that the father expects the mother and the ICL to include in their lists of documents any documents that fall within the documents he lists in paragraph 11 of his affidavit filed 11 April, 2012. I will not set that list out as it is lengthy. I simply observe that many of the documents and the classes of documents included in that list would not be documents that the mother or the ICL have a duty to disclose as they are not documents that are or have been in the possession, or under the control, of the mother or the ICL as provided for in Rule 13.07. The father cannot demand, as he does in paragraph 12 of his affidavit filed 11 April, 2012, that the documents to be disclosed by the mother and the ICL “must be from Queensland Police Service”. Such a demand and expectation demonstrates a misunderstanding of the duty of disclosure. The parties need only include in their lists, documents to which the duty of disclosure applies as set out in Rule 13.07.

The father seeks a further order that the mother and the ICL file affidavits stating that a specified document, or class of documents does not exist or has never existed. Again, although the father does not expressly set out the specified documents or class of documents that he would have such an order refer to, I apprehend that he would refer back to the long list contained in paragraph 11 of his affidavit that I just discussed. He is effectively demanding that the mother and the ICL file affidavits acknowledging that such documents as he sets out in that long list do not exist or never existed. In respect of many of those documents or classes of documents, I am satisfied the mother and the ICL would have no knowledge of their existence or non-existence. As I currently view the matter and the evidence, I am not satisfied that the Court will in any way be assisted by the deposition of the mother or the ICL as to the extent of their knowledge of the existence or otherwise of such documents. I will not make an order such as that sought by the father and I dismiss that part of his application.

The father also seeks an order that the mother must file an Undertaking as to disclosure pursuant to Rule 13.15. Given that I am ordering formal disclosure take place within 21 days and given that the duty of disclosure is an ongoing one, I do not consider that Undertakings as to disclosure should be filed just yet. I consider that is a matter best left to the Registrar who is managing this matter towards listing for trial to consider ordering when the matter is ready to be listed for trial. I dismiss that part of the father’s application.

Another Application in a Case

At the hearing on 16 July, 2012, counsel for the mother also drew to my attention an Application in a Case filed by the mother on 12 July, 2012 along with a supporting affidavit. It seeks an order that pursuant to s118 of the Family Law Act the father not be permitted to institute any proceedings under the Family Law Act without first obtaining the leave of the Court. Counsel for the mother agreed for that application simply to be left in abeyance at this point, to be listed by a Registrar for hearing at some later time after consultation with the parties. That is how I shall deal with it.

I order in terms of the orders set out at the commencement of this document.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 July 2012.

Associate:

Date: 25 July 2012


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