Barbary & Harrison - [2023] FedCFamC2F 1455

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barbary & Harrison [2023] FedCFamC2F 1455

File number(s): MLC 10416 of 2023

Judgment of: JUDGE TURNBULL

Date of judgment: 18 September 2023

Catchwords: FAMILY LAW – REVIEW - Review of order of a Deputy Registrar decision where a request was made for the lawyer of the Applicant to inspect a Court record relating to accusations made by the Respondent.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 14.07(1), 15.13(1)(d), 15.13(1)(d)

Cases cited:
Carter & Carter [2018] FamCAFC 45

Nevins & Urwin [2021] FedCFamC1F 342

Oates & Q and Anor [2010] FamCAFC 202

Division: Division 2 Family Law

Number of paragraphs: 19

Date of last submission/s: 18 September 2023

Date of hearing: 18 September 2023

Place: Launceston

Counsel for the Applicant Ms Cannon

Solicitor for the Applicant Galbally & O’Bryan

The First Respondent No Appearance

The Second Respondent No Appearance

ORDERS

MLC 10416 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BARBARY
Applicant

AND:
AND:

MS HARRISON

First Respondent

MR HOWARD
Second Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

18 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The Application for Review filed 11 September 2023 be allowed.
2.The Order of the Deputy Registrar made on 30 August 2023 be set aside.
3.Pursuant R15.13(1)(d)(ii) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules), Mr Barbary is declared to be a person with a proper interest in information obtainable from the Court record in previous Family Court proceedings – file number MLC2003/2009 (‘the Court record’) Howard & Harrison.
4.Pursuant to R15.13(5)(d) of the Rules, the Applicant be granted permission to inspect the file subject to the following conditions which are imposed in relation to the inspection of the Court record:
(a)that the Court record only be inspected by Mr Barbary’s legal advisor, Ms Gracer.
(b)that Ms Gracer not divulge any information that she obtains from the Court record to Mr Barbary or any other person other than Mr Barbary’s legal advisors, save for informing him as to whether or not there is relevant information on the Court record; and
(c)that leave is required before:
(i)divulging the specifics of any information received by Ms Gracer from the Court record to Mr Barbary; and
(ii)copying any and/or using any documents off the Court record.

5.The Application for Review is listed for further mention in the Federal Circuit and Family Court of Australia Launceston on Monday 2 October 2023 at 10.00 a.m. via Microsoft Teams.
6.That the solicitors for Mr Barbary are directed to provide a copy of this order to the Victorian Office of Public Prosecutions.

THE COURT NOTES:
7.That Mr Howard is not aware of the current application before the Court nor this Order. On the next occasion that the matter is mentioned it is expected that the question as to whether or not Mr Howard should be informed of what is happening in this Court will be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barbary & Harrison

Details

AGLC: Barbary & Harrison [2023] FedCFamC2F 1455
Case: [2023] FedCFamC2F 1455
Decision Date: 18 September 2023

CaseChat Overview and Summary

Mr Barbary applied to review an order made by a Deputy Registrar concerning access to a court record from previous Family Court proceedings. The record related to accusations made by the respondent, Ms Harrison, and involved Mr Howard. The Federal Circuit and Family Court of Australia (Division 2) considered the application. The legal issues before the court were whether Mr Barbary had a proper interest in the information contained in the court record and if permission should be granted for his legal advisor to inspect the record under specific conditions.

The court found that Mr Barbary had a proper interest in the information contained in the court record from the previous Family Court proceedings, which was relevant to his current legal matters. Given the sensitive nature of the information and to protect the privacy of the parties involved, the court imposed strict conditions on the inspection of the court record. These conditions included limiting the inspection to Mr Barbary’s legal advisor, prohibiting the disclosure of any information obtained from the record to Mr Barbary or any other person except his legal advisors, and requiring leave before disclosing specifics of the information or copying any documents. The court also noted that Mr Howard, one of the respondents, was not aware of the application and the order, and this matter would be addressed on the next mention of the case.

The court allowed the application for review and set aside the order of the Deputy Registrar. It granted Mr Barbary permission to inspect the court record under the specified conditions and directed that the order be provided to the Victorian Office of Public Prosecutions. The application was listed for further mention on 2 October 2023.

Orders

Orders of the court

MLC 10416 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BARBARY

Applicant

AND:

MS HARRISON

First Respondent

MR HOWARD

Second Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

18 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The Application for Review filed 11 September 2023 be allowed.

2. The Order of the Deputy Registrar made on 30 August 2023 be set aside.

3. Pursuant R15.13(1)(d)(ii) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules), Mr Barbary is declared to be a person with a proper interest in information obtainable from the Court record in previous Family Court proceedings – file number MLC2003/2009 (‘the Court record’) Howard & Harrison.

4. Pursuant to R15.13(5)(d) of the Rules, the Applicant be granted permission to inspect the file subject to the following conditions which are imposed in relation to the inspection of the Court record:

(a) that the Court record only be inspected by Mr Barbary’s legal advisor, Ms Gracer.

(b) that Ms Gracer not divulge any information that she obtains from the Court record to Mr Barbary or any other person other than Mr Barbary’s legal advisors, save for informing him as to whether or not there is relevant information on the Court record; and

(i) divulging the specifics of any information received by Ms Gracer from the Court record to Mr Barbary; and

(ii) copying any and/or using any documents off the Court record.

5. The Application for Review is listed for further mention in the Federal Circuit and Family Court of Australia Launceston on Monday 2 October 2023 at 10.00 a.m. via Microsoft Teams.

6. That the solicitors for Mr Barbary are directed to provide a copy of this order to the Victorian Office of Public Prosecutions.

THE COURT NOTES:

7. That Mr Howard is not aware of the current application before the Court nor this Order. On the next occasion that the matter is mentioned it is expected that the question as to whether or not Mr Howard should be informed of what is happening in this Court will be addressed.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 10416 of 2023
Judgment of:	JUDGE TURNBULL
Date of judgment:	18 September 2023
Catchwords:	FAMILY LAW – REVIEW - Review of order of a Deputy Registrar decision where a request was made for the lawyer of the Applicant to inspect a Court record relating to accusations made by the Respondent.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 14.07(1), 15.13(1)(d), 15.13(1)(d)
Cases cited:	Carter & Carter [2018] FamCAFC 45 Nevins & Urwin [2021] FedCFamC1F 342 Oates & Q and Anor [2010] FamCAFC 202
Division:	Division 2 Family Law
Number of paragraphs:	19
Date of last submission/s:	18 September 2023
Date of hearing:	18 September 2023
Place:	Launceston
Counsel for the Applicant	Ms Cannon
Solicitor for the Applicant	Galbally & O’Bryan
The First Respondent	No Appearance
The Second Respondent	No Appearance

MLC 10416 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BARBARY Applicant
AND: AND:	MS HARRISON First Respondent MR HOWARD Second Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	18 SEPTEMBER 2023