Allison & Tripp

[2022] FedCFamC1F 309

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Allison & Tripp [2022] FedCFamC1F 309

File number(s):

SYC 5040 of 2021

Judgment of:

HARPER J

Date of judgment:

10 May 2022 

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where father seeks leave to disclose material produced on subpoena in this Court to legal representatives and a foreign court for the purposes of parenting proceedings in Country B – Grant of leave would be in the interests of justice – Orders made for appropriate restrictions on use and dissemination of material subject to leave.

Legislation:

Family Law Act 1975 (Cth) s 121

Cases cited:

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

R Pty Ltd (Trustee for Fletcher Trust) & Jones (2016) 56 Fam LR 445; [2016] FamCA 928

Division:

Division 1 First Instance

Number of paragraphs:

9

Date of last submission/s:

21 March 2022

Date of hearing:

On the papers 

Place:

Sydney

Solicitor for the Applicant:

Ivy Law Group

The Respondent:

Litigant in person

Solicitor for the Independent Children’s Lawyer:

No appearance required

ORDERS

SYC 5040 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ALLISON

Applicant

AND:

MS TRIPP

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	10 MAY 2022

THE COURT ORDERS THAT:

1.The Applicant Father (“the father”) and Respondent Mother (“the mother”) be granted leave to disclose the documents produced to the Sydney Registry of this Court in compliance with the Subpoena issued on behalf of the father to C Organisation on 22 October 2021 (“the Documents”) to:

(a)any legal representatives of either party;

(b)any Court in Country B, and in relation to any family law proceedings commenced with respect to the child, X, born in 2011 (“the child”); and

(c)any Country B Court appointed expert(s) in relation to any proceedings relating to the child, commenced in a Court in Country B

for the limited purpose only of use in any family law proceedings commenced or anticipated to be commenced in Country B.

2.For the purpose of facilitating Order 1 above, the father and mother be released from any implied undertakings not to disclose the Documents

3.For the purpose of facilitating Order 1 above, the Court directs that the Documents remain on the court file until the child attains the age of 18

4.The leave granted in Order 1 is conditional upon:

(a)the father and the mother providing a written undertaking to this Court prior to the release of any of the Documents, that except for the limited purpose in Order 1 above:

(i)that they will not disseminate or otherwise distribute electronic copies of the Documents; and

(ii)upon inspecting the Documents, each party and their legal representatives, including those in Country B, will ensure that the Documents held in their possession are destroyed and permanently deleted from any of their storage or retrieval systems (whether held by email, cloud storage or otherwise) on conclusion of the proceedings in Country B; and

(b)the father and mother procuring a written undertaking to this Court prior to the release of any of the Documents from their legal representatives, including those in Country B, in the same terms as the undertaking set forth in Order 4(a).

5.The father and mother undertake to make all reasonable efforts and do all things and sign all documents necessary to obtain an order, direction or the equivalent from a Court in Country B, not to disseminate or otherwise publish the Documents except for the limited purpose in Order 1 above.

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 the pseudonym Allison & Tripp has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARPER J:

1. These are proceedings between the Applicant Father, Mr Allison (“the father”) and Ms Tripp (“the mother”) concerning their child, X, born in 2011 (“the child”). For the relevant background, see Allison & Tripp (No 2) [2022] FedCFamC1F 310 at [1]–[11].

2. Orders were made by consent on 18 March 2022 as follows:

   1. The document setting out proposed Consent Orders and notations be marked as Exhibit "A".

   2. Orders and notations be made in accordance with Exhibit "A".

   3. By no later than close of registry filing on 21 March 2022, the applicant father file and serve any written submissions of no longer than 3 pages in support of an order permitting utilisation of documents produced on subpoena in these proceedings, in proceedings that are anticipated in a court of Country B, with such submissions to include a precisely formulated form of order which is proposed.

   4. By no later than close of registry filing on 28 March 2022, the respondent mother file and serve any submissions in response.

   5. Judgment in relation to this issue stands reserved.

3. The parties reserved for determination by the Court the question of whether any order or orders contemplated by Order 3 should be made.

4. The father filed written submissions on this issue on 21 March 2022. The mother filed no submissions in response.

5. The father points out that there are a number of legal restrictions on the release of material used in proceedings in this Court. Section 121 of the Family Law Act 1975 (Cth) (“the Act”) restricts the publication or dissemination of information and documents, save for specified exemptions or with approval of the Court. There is an implied undertaking to the Court not to disclose documents or information for any purpose other than for which it was given, save where it has been received into evidence, or where the common law and the Rules provide that parties can be released from the undertaking with the permission or leave of the Court: Harman v Secretary of State for the Home Department [1983] 1 AC 280.

6. In Hearne v Street (2008) 235 CLR 125, the High Court made clear that the Court may grant leave for documentary material disclosed in this Court, to be used in a different Court. The power to grant leave applies with respect to documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits (at [96]). The question is whether it would be in the interests of justice for the Court to grant leave.

7. In this Court, an example of the application of the principle is found in R Pty Ltd (Trustee for Fletcher Trust) & Jones (2016) 56 Fam LR 445, where Carew J found at [71] that it would be, notwithstanding the implied undertaking, “…plainly in the interests of justice that each party be at liberty to use the documents in the new Supreme Court proceedings”.

8. The father argues that it is in the interests of justice for leave to granted for the following reasons:

   24. The Applicant Father respectfully submits that the critical forensic importance of the Subpoenaed documents as discussed herein and commonality in subject matter between the Australian Proceedings and future Country B’s proceedings and interested parties, ought weigh heavily in favour of acceding to the application. This is where the documents are to make a likely and significant contribution to achieving justice, and with inter alia the paramount (and almost universal) consideration of the best interests of the child, and in the public interest generally.

   25. It is submitted the making of the order(s) sought, given the special feature involving an international dispute, and where there appears to be no international treaty or means by which an Order or subpoena issued in Country B would be binding here in Australia on an Australia Government Department such as C Organisation. That limitation arguably extends to the Hague Service Convention which does not pertain to subpoenas. Further the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters or the Foreign Evidence Act 1994 (Cth) or Australia and Country B being contracting parties to the 1996 Child Protection Convention, do not appear to advance such issues for the Father.

9. I accept these submissions. The mother makes no contentions to the contrary. I am also satisfied the limitations on the use of the material are appropriate. I will make the orders sought by the father.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       10 May 2022