Speech Beyond Power: Family Court Rejects Overreach on Publication Ban

Wynn & Danilov [2025] FedCFamC1A 183

⚖️ Case Digest

1. Background and Core Issue

In Wynn & Danilov, the father, self-represented, appealed several interlocutory rulings made during ongoing family law proceedings.

While most of his appeals failed, the Full Court allowed one important ground—concerning the trial judge’s injunctions restraining him from making or republishing public statements, including those derived from his affidavits.

The father had posted on social media critical comments about the Court, the judge, and aspects of the litigation. The trial judge responded by issuing injunctions prohibiting him from “publishing or republishing any allegations or information” relating to the mother, the case, or the Court.

On appeal, the Full Court ruled that these injunctions were made without power, raising an important intersection between judicial authority, freedom of expression, and the statutory privacy restrictions under Family Law Act 1975 (Cth) s 114Q.

2. The Legal Question

Could the trial judge lawfully restrain the father from publishing or republishing information (including from his own affidavits) about the case, or did such restraints exceed the scope of power under the Family Law Act—particularly where s 114Q already governs publication restrictions?

3. The Court’s Reasoning

a. The statutory context: Section 114Q

Section 114Q of the Family Law Act 1975 (Cth)—inserted under the 2021 reforms—automatically prohibits publication of identifying information about parties, children, or witnesses in family law proceedings.

• It applies by force of law, not judicial discretion.
• Breach of s 114Q is a criminal offence.
• It targets the identification of parties and children, not the content of their evidence.

Importantly, s 114Q does not empower a court to issue fresh injunctions extending its reach.

b. The trial judge’s error

The trial judge’s injunctions went much further than what s 114Q authorises. They prohibited the father from:

“Publishing or republishing any material or allegation concerning the mother, the Court, or the proceedings, including information derived from affidavits or submissions.”

The Full Court found that:

• There was no statutory basis under ss 68B or 114(1) to impose such a wide publication ban.
• The orders did not protect a child or party’s safety, nor were they necessary for the administration of justice.
• Section 114Q already addresses publication risks and privacy; the judge’s injunctions duplicated and exceeded that framework.

At [51]–[59], the Full Court held that the injunctions were “not referable to any statutory purpose” and therefore “made without power.”

c. Reference to Hearne v Street (2008) 235 CLR 125

The Court drew on Hearne v Street, which dealt with the implied obligation not to use documents obtained through litigation for collateral purposes.

• However, the principle applies only to material obtained through compulsory court processes (like subpoenas or discovery).
• It does not prevent a party from using or referring to their own affidavit or their own factual material, provided it doesn’t breach privacy or identification prohibitions.

Thus, while Hearne limits secondary use of evidence obtained from others, it does not restrict a litigant from speaking about their own statements or experiences, even if those are reflected in their affidavit.

4. Why Section 114Q Did Not Apply Here

The Full Court carefully distinguished the statutory publication prohibition from the judicially imposed injunctions:

Aspect Section 114Q (Statutory Ban)

The Court expressly stated that s 114Q was not relied upon by the trial judge and did not authorise the injunctions. Instead, the injunctions impermissibly restricted general speech, which lies outside family law jurisdiction unless it relates to the protection of a party or child.

5. Does This Mean Parties Can Publish Their Own Affidavit Material?

The short answer: Yes — within limits.

This case effectively endorses the principle that a party may refer to or even publish material from their own affidavit, provided that:

1. It does not identify a child or other protected person, contrary to s 114Q;
2. It does not include material obtained through discovery, subpoenas, or from the other party’s documents (which remain covered by Hearne v Street);
3. It does not breach suppression or pseudonym orders issued under Part XIII or s 121 of the Family Law Act; and
4. It is not defamatory, contemptuous, or misleading about ongoing proceedings.

Thus, Wynn & Danilov confirms that judicial injunctions cannot silence litigants from referencing their own evidence simply because it’s controversial or critical of the process. Courts may enforce statutory privacy laws, but they cannot create new speech restrictions in the name of case management or civility.

6. The Broader Significance

This decision subtly shifts the balance between privacy protection and free expression in family law. It reminds practitioners and judges that:

• Section 114Q is exhaustive on publication of identifying material;
• Courts cannot expand that prohibition by discretionary injunctions unless justified by a concrete risk;
• Litigants retain ownership of their own narrative, including their affidavits, subject to statutory privacy boundaries.

7. Takeaway

“Section 114Q governs privacy; judicial discretion cannot silence truth.”

The Full Court reaffirmed that while privacy in family law is crucial, it cannot justify speech restrictions that exceed statutory power. Litigants may refer to their own affidavits or experiences publicly—so long as they don’t identify protected persons or misuse others’ evidence.

In practical terms:

• Family law litigants can discuss their own case in general terms.
• They cannot name or identify children, parties, or witnesses.
• They cannot quote or share another party’s documents.

The result protects both free expression and statutory privacy—a rare equilibrium in a highly confidential jurisdiction.

Disclaimer:

Please note this is general information only and does not constitute legal advice. It is always advisable to seek professional legal advice based on your specific circumstances. It is important that you consult with your own legal counsel regarding these matters as they can provide guidance tailored specifically to your situation and advocate on your behalf if necessary. Please note that this analysis is based on general principles and should not be considered as legal advice. It is strongly recommended that you consult with a qualified family law solicitor for guidance tailored to your specific circumstances.