Chakora & Bhander

[2023] FedCFamC1F 127

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).

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

REASONS FOR JUDGMENT

SCHONELL J:

1. By Application in a Proceeding filed 2 March 2023, the applicant mother seeks according to her application that she be released from “the Harman implied undertaking” in relation to the following documents:

   (1)Agreed orders made by a Senior Judicial Registrar on 1 October 2021;

   (2)Mother’s Amended Initiating Application filed 23 April 2021;

   (3)Mother’s Notice of Child Abuse, Family Violence or Risk filed on 24 April 2021;

   (4)Mother’s Case Outline filed 29 September 2021;

   (5)Affidavit of mother filed 8 September 2021;

   (6)Father’s Response to Initiating Application filed 31 March 2021;

   (7)Father’s Notice of Child Abuse, Family Violence or Risk filed 31 March 2021;

   (8)Affidavit of father filed 8 September 2021;

   (9)Child Responsive Program Memorandum of Ms B dated 27 July 2021; and

   (10)Single expert report of Dr C dated 2 May 2022.

2. In the affidavit in support of the application sworn by her solicitor, it records that in mid-2021 the father alleges that he was assaulted by the mother and the mother was subsequently charged. The charge is listed for hearing in early 2023 before the District Court of New South Wales.

3. Her solicitor’s affidavit records the following:

   10.The Mother is aware of material from the Family Court proceedings which she seeks to use at trial. The material discloses:

   a.        the actions of the Mother and Father during the relevant period;

   b.words indicating the state of mind of the Mother and Father during the relevant period; and

   c.the contextual progress of the Family Court proceedings during the relevant period.

   11.The Mother therefore seeks orders relieving her of the Harman undertaking and giving her permission to use the affidavit material of the Mother and documents produced under Court order in her criminal proceedings. To prevent her from doing so would give rise to the real risk of a miscarriage of justice.

   (Affidavit of Mr D filed 2 March 2023)

4. The leave to which the application refers is that identified by the High Court in Hearne v Street (2008) 235 CLR 125 (“Hearne v Street”), where their Honours record in the following terms:

   96.Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...

   (Footnotes omitted)

5. At [97], the High Court said that “[i]t is common to speak of the relevant obligation as flowing from an “implied undertaking” (footnote omitted).

6. That said, the plurality observed at [102] that the use of the term ‘“implied undertaking’ is misleading unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received”.

7. Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 896 explained the reasoning in the following terms:

   Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

8. The purpose of the implied undertaking has variously been described as protecting privacy, preserving confidentiality and to encourage full and frank disclosure in the knowledge that such production will be protected.

9. The obligation extends to all Australian courts and tribunals as well as arbitration proceedings. It binds not just parties but their solicitors and counsel and third parties including experts who are in receipt of documents generated or produced by the litigation. It is not just limited to documents but covers information.

10. As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576).

11. The implied undertaking finds its expression in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 6.04 of the Rules of Court is in the following terms:

    6.04     Use of documents

    (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.

    (2)       However:

    (a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and

    (b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and

    (c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.

12. The permission to which r 6.04(1)(b) is directed has been described as requiring the establishment of special circumstances.

13. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield Nominees”), Wilcox J said at 225:

    … For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

14. His Honour did not import words of limitation to the discretion. It is clear that the discretion is appropriately wide to fit the circumstances of each particular scenario.

15. Before this Court, there are contested parenting proceedings involving the party’s one child. Allegations in those proceedings include the perpetration of family violence by each party against the other.

16. The documents are sought for use in criminal proceedings where the mother is the accused and the father is the complainant.

17. The Independent Children’s Lawyer does not oppose the release of the documents.

18. The father initially opposed leave but on the morning of the hearing indicated that he did not oppose leave.

19. 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

20. 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.

21. The only other documents not otherwise addressed are the Court orders, the Child Responsive Program Memorandum and the single expert report.

22. 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.

23. 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.

24. With respect, I agree with her Honour.

25. I am satisfied that the documents the subject of the application are covered by the implied undertaking with the exception of the orders.

26. 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.

27. 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.

28. These are my reasons for the making of the orders I made.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       7 March 2023