Darley & Darley (No 10)
[2023] FedCFamC1F 907
•23 October 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 10) [2023] FedCFamC1F 907
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – where the applicant seeks to provide subpoenaed financial documents to the Administrative Appeal Tribunal, Child Support and Centrelink – where the respondent opposes the application – where the respondent seeks to provide an order of the Court and correspondence to the Administrative Appeal Tribunal, Child Support and Centrelink – where the applications are granted Legislation: Family Law Act 1975 (Cth)
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Dunn & Dunn (No 2) [2022] FedCFamC1F 76
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Re Springfield Nominees Pty Ltd (1992) 38 FCR 217; [1992] FCA 472
Division: First Instance Number of paragraphs: 14 Date of last submission/s: 6 October 2023 Date of hearing: Determined in Chambers pursuant to the Order made 22 September 2023 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARLEY
Applicant
AND: MR DARLEY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.The parties have liberty to use the following documents, or parts thereof, for the purpose of extant proceedings between them in the Administrative Appeals Tribunal:
(a)documents received in answer to subpoena directed to Westpac Banking Corporation; and
(b)documents received in answer to subpoena directed to AD Finance; and
(c)the Order made 12 December 2018; and
(d)correspondence from AE Lawyers to Mr F, solicitor, dated 14 August 2017, inclusive of the enclosure to the same.
2.The Application in a Proceeding filed on 29 September 2023 is otherwise dismissed.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Darley & Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth
REASONS FOR JUDGMENT
HOGAN J:
On 22 September 2023, I made orders in terms which included that Ms Darley have leave to file an Application in a Proceeding in which she particularise, in sufficient detail to identify them, the documents produced in answer to subpoena filed in these proceedings that she seeks leave to be able to use for the purpose of a Child Support Appeal hearing in the Administrative Appeals Tribunal (“the child support proceedings”).
In an Application in a Proceeding filed on 29 September 2023, Ms Darley sought that she be granted leave to provide information received from the bank records produced by Westpac Banking Corporation (Westpac) and AD Finance in answer to subpoena issued by the Court[1], to the Administrative Appeals Tribunal. She did not provide any further particulars than that.
[1]Issued insofar as Westpac is concerned, on 26 May 223 and, insofar as AD Finance is concerned, on 10 August 2023.
Whilst Ms Darley also sought, in her application, leave to be able to provide the information within the bank records to Centrelink and to “Child Support”, this was not the subject of the order according her leave to file an Application in a Proceeding. Consequently (and noting that the parties are currently engaged in a part-heard hearing that will return before me later this year), I intend to deal only with Ms Darley’s application for leave to provide documents to the Administrative Appeals Tribunal in the course of its determination of the child support proceedings.
By way of broad summary, Ms Darley seeks to be able to use the documents in the child support proceedings to assist her in her quest to:
(a)establish that Mr Darley earned more than he alleged;[2] and
(b)prove that Mr Darley lied about his income to the Child Support Agency, which resulted in her receiving less child support than the amount to which she was entitled;[3] and
(c)seek that an adjustment is made in her favour;[4] and
(d)ensure that the Administrative Appeals Tribunal will not be misled because of Mr Darley’s alleged lies about his income;[5] and
(e)bring the credit of Mr Darley into question in the child support proceedings.[6]
[2] Affidavit of Ms Darley affirmed 29 September 2023, paragraphs 31, 33.
[3] Affidavit of Ms Darley affirmed 29 September 2023, paragraph 24.
[4] Affidavit of Ms Darley affirmed 29 September 2023, paragraph 6.
[5] Affidavit of Ms Darley affirmed 29 September 2023, paragraph 13.
[6] Affidavit of Ms Darley affirmed 29 September 2023, paragraph 8-10.
Mr Darley sought that Ms Darley’s application be dismissed; he also sought that she be ordered to pay his legal costs of and incidental to her Application in a Proceeding.[7] In the event that Ms Darley was granted leave, he sought leave to be able to use the Orders made 12 December 2018 and a copy of correspondence from his then solicitors to Mr F, (a solicitor who had been appointed as trustee for sale of the former matrimonial home) dated 14 August 2017, in the child support proceedings. It seemed to me that he did so because he sought to establish that, at a certain, time, Ms Darley received rental income from that property which he alleged she did not disclose to the relevant authorities.
[7] Response to an Application in a Proceeding sealed 6 October 2023.
PRINCIPLES
A person seeking to use the documents obtained as a consequence of engagement in litigation in the court must seek leave to use them in other proceedings, such as the child support proceedings currently before the Administrative Appeals Tribunal, because:
(a)Rule 6.04 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) relevantly provides that a person who inspects or copies a document, in relation to a proceeding, under these Rules or an order must use the document for the purpose of the proceeding only and must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court's permission; and
(b)the documents are subject to the implied undertaking[8] although, as the High Court said in Hearne v Street[9], the use of the word “undertaking” is misleading since the obligation is one of substantive law arising from the circumstances in which the material was generated.
[8] Harman v Secretary of State for Home Department [1983] 1 AC 280 at 320.
[9] (2008) 235 CLR 125, at [96].
The precise scope of the substantive law was identified by the High Court in Hearne v Street (supra) in the following terms:
96. Where one party to the litigation is compelled, either by reason of a rule of court, or by reason of a specific order 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…
The purpose of the limit imposed on a party’s ability to use documents obtained via that party’s participation in litigation has been said to be the public interest in protecting the privacy of the person compelled to produce documents via a court’s coercive powers; underpinning the assessment is whether the document being considered has an element of compulsion as to its existence.
I accept that the appropriate task of the court is to determine the purpose for which the documents were produced in the first set of proceedings, and to see whether their production in the second set of proceedings is for the same, or a related, purpose. If the purposes overlap, then the use of the documents in the second set of proceedings is within the undertaking that attaches to them; if the purpose of the two sets of proceedings do not overlap then, in order for them to be used by an applicant, there would need to be a release from the undertaking.
It may be arguable that the purposes in the current proceedings in this court and the proceedings in the Administrative Appeals Tribunal overlap in that the payment of child support is an issue considered in both. However, I think the better view is that they do not overlap because, in the proceedings in this court, the issue of the payment of child support arguably falls to be considered within an assessment of Mr Darley’s attitude to the responsibilities of parenthood (but one of the s 60CC(3) considerations to which the Court must have regard in determining what is now in the best interests of the parties’ two children[10]) whereas, presumably, the child support proceedings currently before the Administrative Appeals Tribunal concern the assessment of the quantum of child support payable by the parents.
[10] Family Law Act 1975(Cth), s 60CC.
I accept that the following principles apply in considering whether to exercise the broad discretion, in the circumstances of the case, to release the parties from their implied obligation not to use documents or information obtained in these proceedings for the child support proceedings:
(a)if there are special circumstances for doing so – that is, if there is a special feature of the case which affords a reason for modifying or releasing the undertaking and which is not usually present;[11] however,
(b)the prerequisite that there are “special circumstances” does not mean that some extraordinary factors must exist before the discretion will be exercised – rather, “it is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes”;[12] and
(c)the matters which may lead a court to conclude that a party should be released from their implied obligations include: the nature of the document; the circumstances under which the document came into existence; the attitude of the author of the document and any prejudice that person 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 documents came into the hands of the applicant for leave; the likely contribution of the document to achieving justice in the second proceeding, which may be thought to be the most important consideration of all.[13]
[11] Re Springfield Nominees Pty Ltd [1992] FCA 472 per Wilcox J at [26].
[12] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31].
[13] Re Springfield Nominees Pty Ltd [1992] FCA 472 per Wilcox J at [26].
I also accept that it is not a matter for the Court to determine the manner in which an applicant seeks to use the information contained in the documents sought.[14] Rather, it is for the forum – here the Administrative Appeals Tribunal – in which an applicant seeks to use the documents in respect of which leave has been granted to determine matters such as relevance and admissibility.
[14] Dunn & Dunn (No 2) [2022] FedCFamC1F 76 at [20].
In arriving at the conclusion that there are special circumstances in this case and that the same persuade of the exercise of the discretion in favour of allowing the parties leave to use documents produced in these proceedings by Westpac and AD Finance in answer to subpoena and the order made on 12 December 2018 and the correspondence to which Mr Darley refers in the extant child support proceedings in the Administrative Appeals Tribunal, I have taken into account that: Mr Darley’s evidence included, in essence, that he has no concerns about any information being released for the purpose of the child support proceedings; the parties to the litigation here and the child support proceedings are the same; there is a link between the subject matter in the two proceedings; the documents would be protected by the implied undertaking attaching to them in the child support proceedings in the Administrative Appeals Tribunal in any event; there is public interest in ensuring that all relevant material germane to the child support proceedings is able to be before the Administrative Appeals Tribunal.
For these reasons then, the parties will have leave to use documents produced by Westpac and AD Finance in answer to subpoena, the order made on 12 December 2018 and the correspondence referred to above for the purpose of the child support proceedings in the Administrative Appeals Tribunal.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 23 October 2023
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