Adair & Adair
[2021] FedCFamC2F 333
•27 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adair & Adair [2021] FedCFamC2F 333
File number(s): NCC 749 of 2021 Judgment of: JUDGE BETTS Date of judgment: 27 October 2021 Catchwords: FAMILY LAW – Property settlement proceedings finalised – husband applies now for Court’s leave to publish affidavits to defended some pending criminal charges against him in the Local Court in which the wife is the alleged victim – wife says husband can publish affidavits as of right and did not need to bring this application – argument as to the operation of section 121 of the Family Law Act – argument as to the operation of the implied undertaking in Rule 6.04 of the FCFCOA Rules 2021. Legislation: Family Law Act1975
Federal Circuit and Family Court of Australia Rules 2021
Federal Circuit Court Rules 2001
Cases cited: Australian Trade Commission v McMahon (1997) 73 FCR 211
Crawford & Timms [2020] NSWSC 380
Esso Australia Resources Limited v Plowman (1995) 183 CLR 10
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne & Street [2008] HCA 36
Liberty Funding Pty Ltd -v- Phoneix Capital Lid (2005) 218 ALR 283
Springfield Nominees Pty Ltd v Bridge Lands Securities Pty Ltd (1992) 38F FCR 217
Division: Division 2 Family Law Number of paragraphs: 47 Date of last submission/s: 27 October 2021 Date of hearing: 27 October 2021 Place: Newcastle Counsel for the Applicant: Ms Court Solicitor for the Applicant: Joplin Lawyers Counsel for the Respondent: Ms Mahony Solicitor for the Respondent: Unified Lawyers ORDERS
NCC 749 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ADAIR
Applicant
AND: MS ADAIR
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS THAT:
1.Leave is granted to the Respondent Wife to rely upon the Response to the Application in a Case and Affidavit of the Wife filed 26 October 2021 notwithstanding they were filed out of time.
2.Pursuant to Rule 6.04 of the Federal Circuit and Family Court of Australia Rules 2021 the Affidavit of the Applicant Husband filed 10 March 2021 and the Affidavit of the Respondent Wife filed 21 April 2021 may be published in the Husband’s Local Court criminal proceedings (2020/00369683 & 2020/00369638).
3.The Husband’s costs application in respect of the Application in a Case is listed for hearing at 2.15pm on 16 December 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adair & Adair has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them easier to read.
OVERVIEW:
I have before me an Application in a Case filed by James Robert Grimley (the husband) which seeks specific relief pursuant to section 121(9)(g) of the Family Law Act 1975, and rule 14.11 of the Federal Circuit Court Rules 2001. Specifically, he seeks that his affidavit filed 10 March 2021 and the wife's affidavit filed 21 April 2021 in their earlier property settlement proceedings in this Court, be “published” in the husband's Local Court criminal proceedings involving the wife.
The wife, Ms Adair, is the respondent to this Application. Her belated position is that it is an entirely unnecessarily application which need never have been brought as the husband could as of right have done the things that he now seeks the Court to sanction.
The case raises some interesting points, and I was much assisted by the written submissions of Ms Court of counsel on behalf of the husband, and the written submissions of Ms Mahony of counsel on behalf of the wife. I was also assisted by the oral submissions and the Socratic dialogue in which we engaged at the hearing, and I appreciate counsel's assistance in that respect.
By way of very brief overview, the property settlement proceedings between the parties were commenced by the husband on 3 March 2021. The wife filed response material on 21 April 2021. Relevantly, her response material alleged various instances of family violence perpetrated by the father against her. The parties subsequently engaged in a mediation, and on 6 August 2021, a Registrar of this Court finalised the property settlement proceedings by consent.
Throughout the course of the property proceedings, the husband was facing serious criminal charges in respect of alleged violence towards the wife, the subject of her affidavit material in this Court. In particular, he was facing - and still faces - four (4) counts of assault occasioning bodily harm, and one count of intimidation. The offences are inherently serious. They carry a maximum penalty of two years imprisonment and/or fines up to $5,500 if prosecuted in the jurisdiction of the Local Court. That is a penalty, to be clear, which applies in respect of each and every count alleged.
The husband points to what he says are various inconsistencies between what the wife has alleged in her affidavit material and what she has told Police in a recorded interview. Logically, for the purpose of defending his criminal proceedings, he wishes to be able to rely upon what he says are the wife’s prior inconsistent statements (in this court).
The real question in the case is whether or not the husband in fact needed to bring the application. It is an interesting case in that the wife, having contended that the husband could have published or otherwise used the affidavits as of right in the Local Court, does not oppose the Application in terms of its merits. Rather, she claims that the Application is not one that was strictly required by reference to the relevant law. Accordingly, the debate was very much a legal one rather than a factual one.
To that end I permitted the wife to read and rely upon very late filed material, which in any event largely goes to questions of costs save for the submissions made by her counsel which do go to the substantive legal questions.
HUSBAND’S APPLICATION UNDER SECTION 121 OF THE FAMILY LAW ACT:
I start with section 121 of the Family Law Act, which is the more straightforward issue.
Pursuant to section 121(1), a specific statutory offence is created in respect of a party who “publishes” in a newspaper or periodical publication by radio broadcast, television or by any other electronic means, or who other otherwise disseminates to the public or a section of the public by any means, any account of any proceedings or part of a proceedings which identifies a party or a witness, commits an offence punishable upon conviction by imprisonment for a period not exceeding one (1) year.
Pursuant to section 121(9)(a), the preceding provisions of the section - including subsection (1) - do not apply in relation to:
“a 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.”
Ms Court, on behalf of the husband, contended that section 121(9)(a) did not necessarily provide a complete protection to the husband in respect of that section, and that it was prudent and appropriate for me to make a specific order pursuant to section 121(9)(g), which is a separate exception which permits publication "where the accounts of proceedings have been approved by the court".
On a plain reading of section 121(9)(a), I do not consider it necessary for me to make any specific order pursuant to section 121(9)(g). In my view, the use by the husband in the Local Court of the documents he seeks permission to publish is in every respect a “publication” that is authorised by section 121(9)(a).
To that extent, the husband’s application under section 121 need not have been made.
HUSBAND’S APPLICATION FOR RELIEF FROM THE IMPLIED UNDERTAKING:
This is the more difficult question, namely whether it was necessary for the husband to seek leave to publish the documents pursuant to the Court's rules. This arises on account of the fact that the publication of such documents in the Local Court is said to breach the implied Undertaking given by parties to the court.
This implied Undertaking is referred to in the English decision of Harman v Secretary of State for the Home Department [1983] 1 AC 280, and more recently re-stated by the High Court of Australia in Hearne & Street [2008] HCA 36.
The husband’s Application in a Case was filed on 1 September 2021, so it seems to me that rule 14.11 of the former Federal Circuit Court Rules does not apply, and indeed the application ought to be determined by reference to rule 6.04 of the Federal Circuit and Family Court of Australia Rules. The parties argued the matter before me on that basis, and I understand that although the husband's Application refers to the former rule, it is to be read as referencing rule 6.04.
FCFCOA Rule 6.04 is in sweeping terms. It provides:
(1)A person who inspects or copies a document in relation to a proceeding under these rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the content of the document, or give a copy of it, to any other person without the Court's permission.
Subrule (2) provides specific exceptions, namely that a solicitor may disclose the contents of a document, or give a copy of the document, to the solicitor's client or counsel; the client may do the same; and that the rule does not affect the right of a party to use a document or disclose its contents if the party has a common interest in the document with the party who has possession or control of it.
Rule 6.04 is, in effect, a restatement of the Harman, or perhaps more accurately, Hearne & Street obligation, for the purposes of proceedings in this Court. The obligation was explained by Hayne, Heydon and Crennan JJ in Hearne & Street wherein their Honours said at paragraphs 95 and 96 of their joint judgment:
Before turning to the appellant's submissions in relation to the extent and enforceability of the "implied undertaking", it is desirable to set out some background legal principles which were not in controversy.
Where one party to litigation is compelled, either by reason of a rule of court or by reason of a specific order of the court or otherwise to disclose documents or information, the party obtaining the disclosure cannot without the leave of the court use it for any purpose other than for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
Ms Mahony contends that Rule 6.04 has no application to affidavits, as distinct from documents produced under subpoena or otherwise by way of disclosure. She refers specifically to the fact that Rule 6.04 appears within Chapter 6 of the FCFCOA Rules, entitled “Disclosure and Subpoenas”. She also points to Chapter 8, Part 8.2 of the FCFCOA Rules which relates to “Evidence” and specifically contains various provisions concerning giving of evidence by affidavit.
Ms Mahony draws a distinction between a “document” falling within Chapter 6, and an “affidavit” falling within Chapter 8, Part 8.2 of the rules.
Such an argument is superficially attractive, and indeed Ms Mahony made eloquent submissions on the point. However, ultimately, I am unable to accept that submission. As the High Court made clear in Hearne & Street, the ordinary obligation the subject of the implied undertaking can include documents that are not only discoverable but also affidavits. Affidavits are an express category of document covered by the implied undertaking being discussed here. And in that regard, I also note that a party who brings an application such as the husband’s property settlement application, is obliged to file a supporting affidavit. The wife was also obliged to serve an affidavit in support of her Response. These are the affidavits which the husband seeks to be published in the Local Court. That is to say, the Court’s process (the relevant Court rules) compelled the parties to file affidavits. In that sense I consider that although the affidavits are not strictly "discoverable" documents per se, that they nonetheless fall within the purview of FCFCOA Rule 6.04, particularly given the extremely broad wording of the rule.
Moreover, I would add that a party may by affidavit also choose to annexe discoverable documents that would otherwise ordinarily be provided pursuant to the ordinary provisions of Part 6 of the FCFCOA Rules. That is, an affidavit may contain documents that are inherently confidential but required to be disclosed for the purposes of the proceeding.
It is somewhat curious that FCFCOA Rule 6.04 appears within Chapter 6, but in my view it is a Rule that has application to affidavits; it is not limited to documents that fall within specific categories set out in Chapter 6. The language in Rule 6.04 is so broad that I would be required to read it down to give it the meaning contended for by Ms Mahony, which I do not consider I ought to do having regard to the High Court's decision in Hearne & Street, and to the longstanding law that the implied undertaking can capture affidavits.
INCOMPATIBILITY BETWEEN THE IMPLIED UNDERTAKING & SECTION 121?
A question arises as to whether section 121(9)(a) is inconsistent with the ongoing existence of an implied undertaking. That is, has section 121(9)(a) effectively overridden the implied undertaking by reason of the fact that the Legislature has determined that documents may in fact be published in certain specified circumstances?
Superficially there appears to be an inconsistency between the operation of s 121(9)(a) and the implied undertaking. But on further consideration, it is apparent that section 121 creates as specific statutory offence of publication, and then goes on to create specific exceptions. Section 121 sits side by side with the so-called implied undertaking, and, in my view, no real incompatibility arises.
HAVE THE RELEVANT AFFIDAVITS BEEN ADDUCED IN EVIDENCE IN THE EARLIER PROCEEDINGS, THUS RELIEVING THE PARTIES OF THE IMPLIED UNDERTAKING?
Assuming the affidavits do in fact fall within the ambit of rule 6.04 (as I have found), another question that arises is whether the implied undertaking no longer applies on the basis of what the High Court said in Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 at 32, and particularly Mason CJ’s observation that the implied undertaking is subject to the qualification that once material is “adduced” in evidence in court proceedings, then unless the court restrains publication of it, the material becomes part of the public domain (thus relieving the parties from the implied undertaking).
The question is whether the mere filing of the affidavit by the wife itself constitutes the admission of the document into evidence, or more precisely, it having been “received into evidence” to borrow the expression of Hayne, Heydon and Crennan JJ in Hearne & Street?
Ms Court helpfully referred me to a decision of Beech-Jones J of the Supreme Court of New South Wales: Crawford & Timms [2020] NSWSC 380, in which his Honour had to consider a very similar question to what I am asked to consider today.
His Honour reviewed the relevant authorities, including Hearne& Street, and specifically the question of whether a document (otherwise the subject of the implied undertaking) had been “received into evidence” in earlier proceedings. In that case, his Honour permitted one of the parties to rely upon an affidavit that had been read in proceedings between the parties in the Family Court before McClelland DCJ. But his Honour demurred in relation to whether or not Financial Statements that the wife had filed in those proceedings, but not read or tendered, were still the subject of the implied undertaking. His Honour said there was doubt about that question, but in any event his Honour rejected the tender of those Financial Statements for different reasons under section 135 of the Evidence Act.
His Honour Beech-Jones J observed that the judgment of Mason CJ in Esso made clear that once material is adduced in evidence in court proceedings, it becomes part of the public domain. In the context of whether or not it was relevant that the documents had been tendered in interlocutory applications (as distinct from a trial), his Honour considered that the tender of material in open court, and material coming to the knowledge of the public, were two entirely different things.
So to be fair, the question was left open.
Certainly, it is clear that Courts need to be careful when it comes to the implied undertaking, because a breach of it is a contempt of Court: so much was observed by Beech-Jones J in Crawford & Timms. His Honour made the point that a breach of an implied undertaking has potentially serious consequences, and that the persons bound by such an undertaking should be able to ascertain with clarity when they are and when they are not bound by the undertaking.
The meaning of “adduced” - if it is different to “received in evidence” - is somewhat unclear. Ms Court, by reference to the dictionary, said that “adduce” means to bring forward as argument or in evidence. This was not a definition that Ms Mahony opposed. Her contention was that once the document had been filed in these proceedings, it had been effectively introduced into evidence, and in that sense, it is in the public domain, it is in the Court proceedings.
I commend Ms Mahony's argument in terms of the point that parties give evidence in this court by affidavit; that is the ordinary basis upon which parties “adduce evidence”. But equally, it is the case that not every affidavit filed in proceedings ultimately ends up being read or relied upon, or even adduced in evidence at a trial or at a hearing.
I have no evidence before me which would demonstrate that the wife's affidavit of 21 April, or the husband's affidavit of 10 March, have, in fact, been adduced in evidence in the earlier property settlement proceedings. I specifically looked at the final order made by Registrar Clarke on 6 August 2021, and, in particular, on that order it is noted that in arriving at a decision, the Registrar “has considered a joint summary document signed by the parties' legal representatives and placed with the file”.
I do not have that joint summary document before me, but it is always open to the parties to make concessions and to set out agreed facts in such a document, rather than to ask a Registrar to read through the original affidavit evidence. There is nothing controversial about that practice, and that is clearly the way the parties proceeded here.
If the Registrar had specifically been asked to consider the affidavits in question, then maybe it could be said that the affidavits had been “adduced into evidence” so as to relieve the husband of the implied undertaking. But I cannot come to that conclusion on the evidence before me.
In the circumstances, I am of the view that the husband does in fact need leave pursuant to FCFCOA Rule 6.04 to release or publish the affidavits for the purposes of the Local Court proceedings, notwithstanding his entitlement to do so pursuant to section 121(9)(a) of the Family Law Act.
SHOULD LEAVE BE GIVEN HERE?
I turn lastly to the question of whether, in fact, the Court should give leave to the husband.
This issue can be dealt with quite briefly as the wife did not agitate any particular argument on this issue - her case being that the application was unnecessary.
Essentially it is necessary to establish that there are “special circumstances” for the discretion to be exercised; these need not be “extraordinary circumstances”. I accept the submissions made by Ms Court in this respect, and particularly what is set out at paragraph 28 and 29, and indeed 30 of her written submissions which are repeated below:
28.The principle outlined in Liberty Funding Pty Ltd -v- Phoneix Capital Lid (2005) 218 ALR 283 (more particularly at [31], suggests that special circumstances must be shown before the discretion would be exercised, but special circumstances does not require extraordinary factors to be present:
“In order to be released from the implied undertaking it has been said that a party in the positions of the appellants must show ‘special circumstances’” see, for example, Springfield Nominees Pty Ltd v Bridge Lands Securities Pty Ltd (1992) 38F FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in on piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.”
29.The documents sought pursuant to the Application in a Case are relevant to offering the Applicant a proper defence through exposing the complainant’s lack of credibility and reliability in the criminal proceedings.
30.Where an application for release is decided in contested proceedings, it seems that special circumstances will fairly readily be found where it is established that the use of documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in other proceedings: Australian Trade Commission v McMahon (1997) 73 FCR 211 at [217] per Lehane J.
The husband is facing significant criminal charges. The public interest in ensuring that criminal justice is administered in a way as to ensure that no innocent person is convicted, in my view, is such that disclosure is appropriate for the purposes of the Local Court proceedings. I express no opinion as to what weight, if any, such documents may have to a Magistrate, or what the result may be. I merely observe that the husband, in this case relevantly the accused, points to what he says are various inconsistencies which would presumably on his case establish a reasonable doubt as to his guilt.
The consequences of a conviction for the husband are obviously substantial, and this is not to say that I am oblivious also to the impact on the wife of giving evidence in Local Court proceedings; it would probably be a traumatic experience probably for all.
But in the circumstances of this case, I am of the view that the documents could be said to be reasonably required for the purpose of doing justice between the parties, there is a clear connection between the allegations made in this case and in that case, and that in all of the circumstances, the Court should exercise its discretion in favour of the husband.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 27 October 2021
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