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 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.

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

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE TURNBULL

1. These are the published Reasons originally delivered ex-tempore on 18 September 2023. The Reasons have been slightly edited to correct grammatical errors and improve the structure for ease of reading.

2. This is an application for a Review filed 11 September 2023 by Mr Barbary. He is reviewing an order of a Deputy Registrar of this Court denying a request to enable Mr Barbary’s solicitor, Ms Gracer, to inspect a file held by the Court.

3. Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an Application for Review is to be heard as an original hearing.

4. Mr Barbary has been charged with assault and those proceedings are before Court.  The first Respondent — Ms Harrison — is the complainant in those proceedings. The charges were listed for hearing in late 2023, but the matter adjourned because of this application.  The matter is back before the Court in late 2023 and is likely to be set down for trial towards the end of this year.

5. Ms Harrison and the second Respondent — Mr Howard — were involved in proceedings in this Court. It is the file related to those proceedings that Mr Barbary desires to inspect.

6. Mr Barbary’s request to inspect the Court record is known to all parties involved in the criminal proceedings. The prosecution referred to the past accusations relating to Mr Howard and the apparent similarity of those accusations and those now made against Mr Barbary. Defence Counsel also raised the issue in the pleadings filed in those proceedings. Mr Howard is, however, unaware of the request.  

7. Ms Cannon, Counsel for Mr Barbary, told me that Ms Harrison was a participant in the Family Law proceedings involving Mr Howard, where she made allegations of physical and sexual violence. When Mr Barbary was first interviewed by police, he commented that the accusations sounded similar to accusation Ms Harrison made against Mr Howard.

8. Ms Cannon submitted that the potential information on the Court file is relevant to Mr Barbary’s current criminal proceedings because of the similarity between the allegations against Mr Barbary and Mr Howard.

9. Rule 15.13(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’) states that:

   1. The following persons may search the record of the Court relating to a proceeding and inspect and copy a document forming part of the court record: 

   (d).      With the permission of the Court, a person with a proper interest:

   (i)        In the proceeding; or

   (ii)In information obtainable from the court record in the proceeding;

10. And then, the most relevant section following that is r 15.13(5), which states:

    5.In considering whether to give permission under this rule, the Court must consider the following matters:

    (a)       The purpose for which the access is sought;

    (b)       Whether the access sought is reasonable for that purpose;

    (c)The need for security of court personnel, parties, children, and witnesses;

    (d)Any limits or conditions that should be imposed on access to, or use of, the court record.

11. The scope of the Rule was recently considered in Nevins & Urwin [2021] FedCFamC1F 342. There, Hogan J looked at some earlier decisions of the Court – Oates & Q and Anor [2010] FamCAFC 202 and Carter & Carter [2018] FamCAFC 45.  Those decisions referred to the importance of adhering to the wording of the Rule: 

    13.In Oates & Q and Anor considered a situation in which a non-party sought access to the file for the purpose of defending herself against a complaint made to the office of the Legal Services Commission by the wife in those proceedings. At first instance, leave was granted. The wife appealed the order. The Full Court relevantly noted in essence, at [83]:

    …if the Court determines that a person has a requisite proper interest, it is within the discretion of the Court to grant access to the entire court record/file.[1] 

    14.      Further, at [99], the Full Court said that:

    Rule 24.13 requires only that the person have a proper interest in the case or information obtainable from the court record.  No other limitation is placed upon circumstances in which the Court may grant a person access to the court record. 

    15.In Carter & Carter the Full Court considered an appeal against an order by a judge at first instance, dismissing-other than in relation to the consent orders made between parties—an application by a child of those parents to search, or have access to, the Court record in relation to the issues of his parents’ divorce and the property and parenting orders made between them. In that case, the child’s parents, who were the parties to the proceedings, consented to him being granted permission to inspect the Court record.

    16.It is apparent from the reasons of the Full Court that the judge, at first instance, summarised the purpose of inspection and access to have been: to enable the applicant to know what happened; to assist an understanding of what happened in relation to his family and relationships after the parental separation;  to enable the applicant to know which of the parents was, by virtue of the order in the proceedings, supposed to do what;  to enable him to ascertain answers to questions such as why he had not been provided with independent legal representation; to enable him, (having received treatment as an adult for mental illness) the benefit of being able to access the information thought to have been held on the court file. 

    17.It appears from the reasons of the Full Court that, despite having found that the applicant had a proper interest in the proceedings, the trial judge refused him access to the Court record because of concerns which included: reservations about the benefit he might have obtained from inspecting the file; and, in essence, concerns that it was unlikely that having access to and inspecting the file would give him the answers that he sought.   

    18 The Full Court allowed the appeal. In doing so, the Reasons included that: the  provides the criteria by which an application is to be considered and does not entitle the decision to be based on matters not relevant to its terms; the applicant’s stated purpose was prima facie reasonable; the trial judge erred by having regard to irrelevant matters; the correct application of the Rule should have been that, once proper interest was established, the Court should have considered whether access to the record was reasonable – and not whether an applicant would benefit from such access.[3]

    19 The Court held further that a primary judge is required to identify the purpose or purposes for which access to the Court record is requested and, having done so, to determine whether access to the same is reasonable for that purpose or purposes,[4] and that a focus on an absence of benefit, flowing from access to the Court record, is an irrelevant consideration in the exercise of discretion.

    [1] Nevins & Urwin [2021] FedCFamC1F 342 [13] quoting Oates & Q and Anor [2010] FamCAFC 202.

12. Turning to Mr Barbary’s application — the essential question is whether Mr Barbary is a person with a proper interest in the proceedings between Ms Harrison and Mr Howard? Ms Cannon submitted that Mr Barbary is a person accused of a serious crime and the allegation has striking similarities to accusations that were allegedly raised by the same complainant against Mr Howard. This has been raised by the prosecution in the criminal proceedings and has been pleaded as forming part of Mr Barbary’s defence in those proceedings.

13. I accept the submission that Mr Barbary is a person with a proper interest in information obtainable from the Court record for the reasons advanced. That is, those earlier proceedings involving Mr Howard may well refer to accusations against Mr Howard, which may be of a similar nature to those now raised against Mr Barbary.

14. As I am satisfied that Mr Barbary is a person with a proper interest in information obtainable from the Court record in the proceedings, I now need to turn to r 15.13(5) to consider several mandatory matters, set out in its subsections. 

15. Subsection (a) refers to the purpose for which access is sought. It is clear, access is sought to determine whether there is information that may be relevant to Mr Barbary’s defence in the criminal proceedings. That, in my view, a proper purpose. 

16. Subsection (b) requires that the access sought is reasonable for that purpose.  I have already heard that access to the file is reasonable for the purpose that I have stated.

17. Subsection (c) requires me to consider the security of Court personnel, parties, children, and witnesses.  What I have been advised is that Ms Gracer — the solicitor representing Mr Barbary — is the person who will inspect the file, not Mr Barbary.  I have already made passing reference to likely limitations I will place upon Ms Gracer’s disclosure of information on the Family Court file.  In my view, there is nothing to suggest there is any current security issue for Court personnel, parties, children, and/or witnesses if the request to inspect is allowed.

18. Subsection (d) refers to any limits or conditions that should be imposed on access to, or use of, the Court record. In my view, there should be some limitations, particularly given that Ms Harrison is not aware of today’s proceedings.  I will restrict any person from copying any document held on the file, without leave of the Court.  Further, I will ensure that any information received by Ms Gracer will not be divulged to Mr Barbary, nor any other person, other than Ms Cannon or his other legal advisors. Mr Barbary does not need to know the specifics of any information gathered by Ms Gracer — other than to be informed that the information may or may not be helpful to his cause. 

19. For these reasons, I find that the Review should succeed and that orders should be made to allow that inspection to occur. I make orders in terms above.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Turnbull.

Associate:

Dated:       18 September 2023