BANKS & LOFFLER

[2015] FamCA 380

FAMILY COURT OF AUSTRALIA

BANKS & LOFFLER [2015] FamCA 380

FAMILY LAW – EVIDENCE – Harman Undertaking – where father seeks to use material filed in these proceedings in his criminal proceedings – where no objection taken by mother – orders made allowing the release of affidavit and subpoena material for limited purpose.

Family Law Act 1975 (Cth) s 121

Hearne & Street (2008) 235 CLR 125

APPLICANT: Mr Banks

RESPONDENTS: Ms Loffler

FILE NUMBER: ADC 2014 of 2014

DATE DELIVERED: 14 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Idema

SOLICITOR FOR THE APPLICANT: D’Angelo Kavanagh

COUNSEL FOR THE RESPONDENT: Mr B

SOLICITOR FOR THE RESPONDENT: John Charles Mattner

Orders

1. The applicant be permitted to provide copies of the following documents to the Director of Public Prosecutions, his criminal law barristers and solicitors, South Australian Police and the District Court of South Australia:

   (a)The mother’s Response filed 5 September 2014;

   (b)The mother’s Affidavit filed 5 September 2014;

   (c)  The Affidavit of John Charles Mattner filed 5 September 2014;

   (d)The Notice of Risk filed 5 September 2014 by the mother;

   (e)The subpoena material listed as items S6 and S10 PROVIDED THAT does not include the confidential material in S10.

2. The release of copies of all documents is restricted to and limited for use by the applicant father’s barristers and solicitors, the Director of Public Prosecutions, South Australian Police and the District Court of South Australia for the criminal proceedings filed against the applicant father.

3. The father’s Application in a Case filed on 17 March 2015 is dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2014 of 2014

Mr Banks

Applicant

And

Ms Loffler

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am being asked to make orders this morning in relation to the release of material which has been filed by the mother and other party in these proceedings which relate to the care and welfare of one of the children of the mother and father and proceedings between the father, mother and grandmother of the child. 

2. The father is currently facing criminal proceedings in relation to another child, significant criminal proceedings which are to be heard in the District Court in July 2015.  I am being asked now by the father to give him permission to use documents filed in the Family Court of Australia proceedings in his defence of the criminal proceedings.

3. The application originally referred to section 121 and being released from the same, but counsel appropriately indicated that he was not now relying upon section 121 but seeking a release of the information pursuant to the Court’s power to release the parties from what has in the past been described as the “Harman Undertaking” or “implied undertaking”. 

4. In relation to that, the principles clearly have been set out in previous proceedings.  The High Court decision of Hearne & Street (2008) 235 CLR 125 is clearly an indication that what was previously referred to as an “implied undertaking” is, in fact, an obligation arising from the circumstances in which these proceedings exist and that it is necessary for compliance with that obligation to be waived based upon the principles which were set out by the United Kingdom Court in the matter of Harman.

5. It is necessary in these types of proceedings, and particularly in relation to matters which contain private personal information, for the special circumstances (which were referred to in the authorities discussing what has been called the Harman obligation) to be determined before the parties can use documents in these proceedings for some other purpose. 

6. If section 121 applied, it would also be necessary to consider whether it would be appropriate to grant permission for the documents to be used for that purpose.  The combination of the Family Law Act 1975 (Cth) (“the Act”), rules and the general law in relation to the Harman obligation also provide the Court with the power to provide that the documents can be used in special circumstances.

7. The rules also provide that where a subpoena has been complied with, a person who inspects or copies that document must not disclose the contents or give it to any other person without the Court’s permission.  The rules obviously provide for the Court to waive the compliance with those rules in appropriate circumstances. 

8. Taking into account the common law and the statutory provisions, it is necessary for me to consider whether there are special circumstances which apply to the application now before the Court.

9. I accept that the basis upon which the father seeks the release of the material is to use the documents in his defence of significant criminal proceedings concerning another child.  The mother is likely to be a significant witness in those proceedings. 

10. In those circumstances I consider that justice requires that the father be able to use the material in the appropriate fashion without the risk of being found to be in breach of the Harman obligation, the Act or rules.

11. There is no opposition on behalf of the mother and there was no opposition on behalf of the other party who was released from attendance today.  The matter is, therefore, clearly, within the authority of the Court and I make the orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 May 2015.

Associate: 

Date:  25 May 2015