FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chakora & Bhander [2023] FedCFamC1F 127
File number(s): PAC 1013 of 2021 Judgment of: SCHONELL J Date of judgment: 7 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where the mother sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – Where the father and Independent Children’s Lawyer did not oppose the orders sought by the mother – Where the Court still needs to be satisfied that leave should be granted – Where the mother seeks to use the documents in aid of her defence in criminal proceedings where she is facing serious criminal charges – Where the Court is satisfied that special circumstances exist – Leave granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04 Cases cited: Earnshaw & Farella (No. 2) [2022] FedCFamC1F 1020
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354
Riddick v Thames Board Mills Ltd [1977] QB 881
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 7 March 2023 Place: Sydney Counsel for the Applicant: Ms Akthar Solicitor for the Applicant: Criminal Defence Lawyers Australia Solicitor for the Respondent: Stojanovic Solicitors Solicitor for the Independent Children's Lawyer: Stojanovic Solicitors (appearing on behalf of the Independent Children’s Lawyer) ORDERS
PAC 1013 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHAKORA
Applicant
AND: MR BHANDER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
7 MARCH 2023
THE COURT ORDERS THAT:
1.The applicant mother is granted leave to provide to her criminal lawyers, the Director of Public Prosecutions and the District Court of New South Wales the following documents:
(a)Agreed orders made by a Senior Judicial Registrar on 1 October 2021;
(b)Mother’s Amended Initiating Application filed 23 April 2021;
(c)Mother’s Notice of Child Abuse, Family Violence or Risk filed 24 April 2021;
(d)Mother’s Case Outline filed 29 September 2021;
(e)Affidavit of mother filed 8 September 2021;
(f)Father’s Response to Initiating Application filed 31 March 2021;
(g)Father’s Notice of Child Abuse, Family Violence or Risk filed 31 March 2021;
(h)Affidavit of father filed 8 September 2021;
(i)Child Responsive Program Memorandum of Ms B dated 27 July 2021; and
(j)Single expert report of Dr C dated 2 May 2022.
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).
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- Chakora & Bhander [2023] FedCFamC1F 127
- Case
- [2023] FedCFamC1F 127
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the documents were covered by the implied undertaking under the Family Law Act 1975, and if special circumstances existed to grant Ms Chakora leave to use the documents in her criminal proceedings. The court found that the documents were covered by the implied undertaking, except for the court orders. The court also found that special circumstances existed as denying Ms Chakora access to these documents may compromise her defence in the criminal proceedings.
The court granted Ms Chakora leave to provide the specified documents to her criminal lawyers, the Director of Public Prosecutions, and the District Court of New South Wales. The court noted that an affidavit is covered by the implied undertaking, and parties are required to file certain documents in family law proceedings. However, court orders are not covered by the implied undertaking, as they are not documents created by or disclosed by a party. The court found that denying Ms Chakora access to these documents may compromise her defence, which is a special feature of this case. Therefore, the court granted Ms Chakora leave to use the documents in her criminal proceedings.
The court ordered that Ms Chakora is granted leave to provide to her criminal lawyers, the Director of Public Prosecutions, and the District Court of New South Wales the following documents: Agreed orders made by a Senior Judicial Registrar on 1 October 2021; Mother’s Amended Initiating Application filed 23 April 2021; Mother’s Notice of Child Abuse, Family Violence or Risk filed 24 April 2021; Mother’s Case Outline filed 29 September 2021; Affidavit of mother filed 8 September 2021; Father’s Response to Initiating Application filed 31 March 2021; Father’s Notice of Child Abuse, Family Violence or Risk filed 31 March 2021; Affidavit of father filed 8 September 2021; Child Responsive Program Memorandum of Ms B dated 27 July 2021; and Single expert report of Dr C dated 2 May 2022.
Orders
Orders of the court
PAC 1013 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS CHAKORA
Applicant
AND:
MR BHANDER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
7 MARCH 2023
THE COURT ORDERS THAT:
1. The applicant mother is granted leave to provide to her criminal lawyers, the Director of Public Prosecutions and the District Court of New South Wales the following documents:
(a) Agreed orders made by a Senior Judicial Registrar on 1 October 2021;
(b) Mother’s Amended Initiating Application filed 23 April 2021;
(c) Mother’s Notice of Child Abuse, Family Violence or Risk filed 24 April 2021;
(d) Mother’s Case Outline filed 29 September 2021;
(e) Affidavit of mother filed 8 September 2021;
(f) Father’s Response to Initiating Application filed 31 March 2021;
(g) Father’s Notice of Child Abuse, Family Violence or Risk filed 31 March 2021;
(h) Affidavit of father filed 8 September 2021;
(i) Child Responsive Program Memorandum of Ms B dated 27 July 2021; and
(j) Single expert report of Dr C dated 2 May 2022.
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
Notwithstanding that there was no opposition to the order sought by the mother, the Court still needs to be satisfied that leave should be granted. CONSIDERATION It is clear, from what their Honours identified in Hearne v Street, that an affidavit is covered by the implied undertaking. Parties are required in parenting matters before the Court to file applications and responses, are directed to file Case Outlines, and are compelled to file documents such as a Notice of Child Abuse, Family Violence or Risk. I am satisfied in those circumstances that such documents attract the implied undertaking. The only other documents not otherwise addressed are the Court orders, the Child Responsive Program Memorandum and the single expert report. In Earnshaw & Farella (No. 2) [2022] FedCFamC1F 1020, Carew J in the context of a release for the provision of documents to a therapist observed in the following terms:38As a party is generally compelled to participate in the preparation of a family report (as in the current case), the Hearne obligation limits the use of the information disclosed by a party, and the report itself (which is likely to refer to the information disclosed), to the purpose for which it was given. The provision of information by a party in those circumstances was for the purposes of the preparation of the family report for use in the proceedings and, the purpose of the report itself was for use in the proceedings. As the proceedings have concluded, leave is required to provide a copy of the family report to medical practitioners or therapists and the like. In relation to a court order, her Honour observed:40.It is difficult to see how an order of the Court could come within r 6.04. It is not a document created by or disclosed by a party and the information contained therein would be unlikely, in my view, to include information that a party was compelled to disclose. Likewise, in my view, the provision of an order of the Court, as proposed, is not restricted by the Hearne obligation. With respect, I agree with her Honour. I am satisfied that the documents the subject of the application are covered by the implied undertaking with the exception of the orders. In this case, the mother seeks to use the documents in criminal proceedings in which she is facing serious criminal charges. She seeks to use the documents in aid of her defence to those charges. I am satisfied that to deny her access to these documents may have the effect of compromising her defence. That is to my mind, to adopt Wilcox J’s words in Springfield Nominees, a “special feature” of this case. I am satisfied that special circumstances have been established. These are my reasons for the making of the orders I made.