Chakora & Bhander

In the case of Chakora & Bhander, Ms Chakora sought leave to provide certain documents to her criminal lawyers, the Director of Public Prosecutions, and the District Court of New South Wales. The father and the Independent Children's Lawyer did not oppose the orders sought by Ms Chakora. Despite the lack of opposition, the court had to determine whether special circumstances existed to grant Ms Chakora leave to use the documents in her criminal proceedings. Ms Chakora was facing serious criminal charges and sought to use the documents in aid of her defence.

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.