Canavan & Dowd

[2023] FedCFamC1F 207

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Canavan & Dowd [2023] FedCFamC1F 207   

File number(s):

MLC 9945 of 2020

Judgment of:

JOHNS J

Date of judgment:

23 February 2023

Catchwords:

 FAMILY LAW – PRACTICE AND PROCEDURE – where the parties seek an order permitting them to provide documents filed in these proceedings to lawyers representing them in criminal proceedings – where the orders sought would require an exemption from the Harman obligation – where there is substantial commonality in the two sets of proceedings – where the respondent does not oppose the orders being made – where the documents sought to be disclosed are likely to assist the second court in its determination – where the parties are involved in both proceedings – where it is appropriate for orders to be made permitting the release of documents  

Legislation:

 Family Law Act 1975 (Cth) s 121

Federal Circuit and Family Court of Australia Rules 2021 (Cth), Rule 6.04  

Cases cited:

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

Division:

Division 1 First Instance

Number of paragraphs:

10

Date of hearing:

23 February 2023

Place:

Melbourne

Counsel for the Applicant:

Ms Kildea

Solicitor for the Applicant:

Morrison and Sawers

Counsel for the Respondent:

Ms Geddes

Solicitor for the Respondent:

SMR Legal

Counsel for the Independent Children's Lawyer:

Ms Brennan

Solicitor for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

MLC 9945 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CANAVAN

Applicant

AND:

MR DOWD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JOHNS J
DATE OF ORDER:	23 FEBRUARY 2023

BY CONSENT THE COURT ORDERS THAT:

1.The parties attend a private mediation with Ms B between 17 May 2023 and 17 June 2023 at the parties’ joint expense.

2.Within 21 days of the date of these orders, the parties do all acts and things and sign all documents necessary to appoint C Pty Ltd to prepare updated valuation reports, at the husband’s expense, of the following real properties:

(a)D Street, E Town in the State of New South Wales at the husband’s sole expense; and

(b)F Street, E Town in the State of New South Wales at the parties’ equal expense.

BY THE COURT IT IS ORDERED

3.The Applicant Wife and the Respondent Husband and their legal advisers be released of the obligation of the implied undertakings to this court in Harman v Secretary of State for Home Department [1983] 1 AC 280 with respect to:

(a)any document sworn or affirmed by a parent in these proceedings and filed in this Court in these proceedings being MLC 9945/2020, including the parties’ trial material to be filed on 6 April 2023 and 1 May 2023;

(b)affidavit of Dr H filed 21 July 2022 together with the two reports dated 18 July 2022 annexed thereto;

(c)affidavit of Ms G filed 19 July 2022 together with the Family Report dated 18 April 2022 annexed thereto and any report prepared by Ms G following the updated family report interviews on 1 March 2023;

(d)Notice of Child Abuse, Family Violence or Risk of Family Violence filed on behalf of either party;

(e)affidavit of Mr J filed 14 February 2022 and the report annexed thereto dated 6 January 2022;

(f)the subpoena material produced by K Children's Contact Service pursuant to subpoena filed on 20 September 2021;

(g)the subpoena material produced by Victoria Police pursuant to subpoenas filed on 17 August 2022 and 4 October 2022; and

(h)the subpoena material produced by NSW Police pursuant to subpoena filed on 26 September 2022.

(the Documents).

4.The relief from the implied Harman obligation referred to in order 3 herein, is to be limited to the use of the Documents, or provision of the documents to, as follows:

(a)Criminal proceedings in the New South Wales Local Court (the criminal proceedings) and any superior court to which the criminal proceedings may be referred;

(b)the Director of Public Prosecutions;

(c)the New South Wales Police; and

(d)Any practitioner appeared on behalf of or advising the parties in relation to the criminal proceedings.

5.All extant interim applications be and are hereby dismissed.

AND THE COURT DECLARES THAT:

A.None of the Wife, the Husband, nor their legal advisers will be in breach of s121 of the Family Law Act 1975 (Cth) by using any of the documents referred to herein for the purpose set out in order 4 herein, and such use will not constitute a breach

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

EX TEMPORE REASONS FOR JUDGMENT

1. The husband’s Application in a Proceeding, filed 6 February 2023, comes before the Court this day. That application seeks orders that he be permitted to provide to his lawyers, or any other criminal lawyer engaged by him in proceedings currently before the Local Court in New South Wales, documents filed in these proceedings.

2. Those documents are particularised at paragraphs 1(a) to 1(h) inclusive of his Application in a Proceeding. That application is supported by his affidavit also filed 6 February 2023. The husband deposes to having been charged with a number of serious offences, including assault and damage. 

3. Those charges all relate to allegations made by the wife in these proceedings that the husband has perpetrated family violence against her. Criminal charges have been laid because of those allegations. The proceedings in the Local Court of New South Wales are listed for hearing in early 2023.

4. It is the husband’s position that he seeks to rely upon documents that have been filed in these proceedings in defence of the charges laid against him. In particular, he seeks to produce to his criminal lawyers documents including affidavits filed by the wife in these proceedings, a psychological assessment of Dr H, a Family Report prepared by Ms G, as well as subpoenaed material produced by the contact supervisor and subpoenaed material produced by Victoria and New South Wales Police.

5. The application of the husband is not opposed by the wife. She too seeks to be released from her obligations so that she may produce and/or rely upon material filed on her behalf in these proceedings in the criminal processes.

6. Rule 6.04 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) governs the use of documents produced during Court proceedings. Subsection (1) of that provision provides that:-

   (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 contents of the document, or give a copy of it, to any other person without the court’s permission.

7. That Rule reflects the implied undertaking that documents produced to, or filed in, one court are to be used only for the purposes of those proceedings. That rule emerges from a line of cases following the decision of Harman v Secretary of State for the Home Office [1983] 1 AC 280 (”Harman”). That rule is usually referred to as the ‘Harman implied undertaking’ or the ‘Harman obligation’.

8. The factors relevant to the question of whether the Court ought exercise its discretion to release parties from the Harman obligation include:

   ·the nature of the document;

   ·the circumstances under which the document was created;

   ·the prejudice to the writer of the document;

   ·the commonality of the subject matter between the two sets of proceedings, and whether the document sought to be released could assist in determining an issue in dispute in the second proceedings;

   ·the interrelationship between the parties involved in the two proceedings;

   ·whether the party seeking to be released from the undertaking would be at a disadvantage if they were unable to use the documents in the second proceedings;

   ·whether there is an inconsistency between the documents to which the implied undertaking applies and pleadings or documents provided in the second proceedings;

   ·whether the matters set out in the documents to which the implied undertaking applies are personal matters, and if so whether they are not already in the public domain;

   ·whether the documents sought to be released could assist the second court in determining issues of credit; and

   ·the likely contribution of the document to achieving justice in the second proceedings.

9. Given the nature of the allegations made by the wife in this Court, particularly with respect to the husband having perpetrated significant and ongoing family violence toward her, I am satisfied that there is a significant overlap in subject matter between the two proceedings. The behaviour of the husband about which complaint is made is the subject of the criminal charges in the Local Court in New South Wales. I am satisfied that there is no prejudice to the parties in producing the documents in the criminal proceedings.

10. Both parties are aware of the matters contained in the material proposed to be produced, and both parties seek to rely upon those documents for the purposes of the proceedings in the New South Wales courts. In circumstances where the parties are identical in both sets of proceedings and there is a commonality of subject matter between the two sets of proceedings, being allegations of violence and abuse and the ongoing risk of such behaviour, I am of the view that those circumstances justify the production of the material in these proceedings in the Local Court proceedings.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns.

Associate:

Dated:       23 February 2023