Dunn & Dunn (No 2)
[2022] FedCFamC1F 76
•21 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dunn & Dunn (No 2) [2022] FedCFamC1F 76
File number(s): ADC 5380 of 2020 Judgment of: BERMAN J Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the applicant is defending criminal charges in the local state court – Where the applicant seeks the release of documents filed in these proceedings for use in his criminal proceedings – Where the release of documents are sought pursuant to s 121(9) of the Family Law Act 1975 (Cth) – Where s 121 only relates to the voluntary dissemination of information and not to evidence that may be given in a court – Where the implied undertaking applies to the documents – Where special circumstances exist which would justify release from the implied undertaking – Order. Legislation: Family Law Act 1975 (Cth) ss 121(1), 121(2), 121(9) Cases cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Holpitt Pty Ltd v Varimu Pty Ltd & Ors (1991) 29 FCR 576
Re Edelesten(a bankrupt);Donnelly v Edelsten &Ors (1998) 12 FamLR 294
Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 14 February 2022 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Jordan & Fowler Family Lawyers Counsel for the Respondent: Ms Tinning Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd ORDERS
ADC 5380 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DUNN
ApplicantAND: MS DUNN
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The applicant be permitted to provide the following documents to his criminal law solicitors, the South Australian Police and the Magistrates Court of South Australia (or such superior court as the criminal law proceedings may be referred to):
(a)Paragraphs 11.25, 56.4.1, 56.4.2, 56.5 and 56.16 of the affidavit of Ms Dunn sworn 5 November 2020;
(b)The Notice of Risk filed by Ms Dunn on 5 November 2020;
(c)The affidavit of Ms Dunn sworn 21 December 2020; and
(d)Paragraphs 30 to 40 of the affidavit of Mr Dunn sworn 22 December 2020.
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 Dunn & Dunn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Application in a Proceeding dated 16 December 2021, Mr Dunn (“the applicant”) seeks the following orders:
6. That pursuant to section 121 (9) of the Family Law Act 1975, and until further order, the husband be granted permission of this Honourable Court to use, rely on, produce to his legal representatives and to produce to the prosecution and/or SAPOL, and to any other Court, any document filed in these proceedings including but not limited to:
a.Affidavit of Ms Dunn filed on 5/11/2020;
b. Notice of child abuse, family violence or risk filed on 5/11/2020;
c. Affidavit of Ms Dunn filed on 1/2/2021;
for the purposes of defending any criminal proceedings in the Magistrates Court of South Australia.
7.That the husband be discharged from any undertaking (implied or otherwise) as to the use of the material filed in these proceedings with such use limited to a use in respect of or otherwise incidental to the defence of charges brought against the respondent husband by SAPOL the subject of Summons issued against him dated 25 October 2021.
The orders sought by the applicant are better particularised in his affidavit filed 10 February 2022, as follows:
30.I respectfully request leave of this Honourable Court to provide copies of the following documents filed in these proceedings or part of them as follows:
30.1As to the affidavit of the Wife sworn 5 November 2020 paragraphs [11.25], [56.4.1], [56.4.2], [56.5] and [56.16];
30.2 The notice of Risk filed by the Wife on 5 November 2020;
30.3 The affidavit of the Wife sworn 21 December 2020; and
30.4 As to my affidavit sworn 22 December 2020 paragraphs [30] to [40].
(As per the original)
Notwithstanding that the order sought in its original form extended to potentially all documents in the current proceedings, paragraph 30 of the applicant’s affidavit limits the scope of documents for which leave is sought.
Ms Dunn (“the respondent”) does not oppose leave being given in respect of the paragraphs nominated in paragraph 30.1 of the applicant’s affidavit, but objects to the documents identified in paragraphs 30.2 to 30.4 inclusive.
BACKGROUND
The substantive proceedings involve the competing applications of the parties in respect of the parenting arrangements for X born in 2015 and Y born in 2018 (collectively “the children”) and for orders by way of property settlement and division.
The parties commenced cohabitation in 2013, married in 2013 and separated in December 2019. By Information and Summons dated 25 October 2021, the applicant was charged with the following offence:
1.In December 2019 at ADELAIDE in the said State, [the applicant] assaulted Ms Dunn.
Section 20(3) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that you committed the offence knowing that the victim of the offence was a person with whom you were in, or were formerly in a relationship with. This is a Minor indictable offence.
The applicant denies the charge and intends to plead not guilty. The proceedings in the Magistrates Court are ongoing and whilst there is a pre-trial conference soon to be convened to determine the fate and status of the charge, it is appropriate to assume that until resolved, the charge will need to be determined by a hearing in the Magistrates Court.
The respondent’s complaint was supported by her statement to South Australian Police (“SAPOL”) dated 6 January 2021.
The Facts of Charge[1] sets out a convenient summary of the allegation against the applicant:
VICTIM
The victim in this matter is Ms Dunn.
The victim was married to the accused for approximately 6 years, they have 2 children together.
In December 2019 at about 8pm the victim states she was with the accused in the kitchen of their marital home when he was accusing her of having an affair and demanded to see her phone. The victim states the accused grabbed her phone from her and placed it in his pocket threatening to sell the messages to a magazine. The victim states she asked for her phone several times and went to take it from his pocket when the accused grabbed her by both of her wrists using both hands, tightening his grip when she tried to move free. The victim states the more she attempted to free her wrists the harder the accused squeezed.
The victim states he held her wrists for approximately 10 seconds causing her to be in intense pain. Their 5 yr old daughter was awoken by the yelling and entered the kitchen resulting in the accused releasing his hold.
…
(As per the original)
[1] Applicant’s affidavit filed 16 December 2021, annexure “-2”, page 30.
The incident was referred to police in December 2019. The respondent declined to provide a statement and whilst allowing photographs of her alleged injuries to be taken, she did not wish to take any formal action against the applicant.
The respondent altered her position and on 29 December 2020 requested that SAPOL review the matter and pursue a charge of assault against the applicant.
The applicant has been advised by his legal representatives that the documents identified by him may well assist in his defence.
THE LAW
Paragraph 6 of the application seeks the release of the documents pursuant to s 121(9) of the Family Law Act 1975 (Cth) (“the Act”). Section 121(9) provides:
The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
…
Counsel for the applicant submitted that because the documents were to be used “in proceedings in any other court,” this was an exception and the prohibition against publication as set out in s 121 of the Act did not apply.
I consider that s 121(9) has no application because s 121 of the Act does not apply to proceedings in a court. The section is in the following terms:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
This only relates to the voluntary dissemination of information. It could not apply to evidence that may be given in a court where a party may be obliged, compelled or considered it necessary to give evidence.
The decision of Re Edelesten(a bankrupt);Donnelly v Edelsten &Ors (1998) 12 FamLR 294 is authority for the proposition that the reference to “disseminate to the public” in s 121(2) of the Act should be taken as widespread communication with a purpose of bringing the matter to the attention of a wider public.
Proposed order 7 of the application seeks that “the husband be discharged from any undertaking (implied or otherwise) as to the use of the material filed in the proceedings …” The reference to “implied undertaking” arises out of the decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”). The nature of the implied undertaking was the subject of comment by the High Court in Hearne v Street (2008) 235 CLR 125 (“Hearne”) at 154:
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 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 includes documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purpose 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)
In Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) (“Sapphire”) [2011] NSWSC 1451, the court said:
188.… an implied undertaking would therefore be likely to apply to the material put before the Tribunal from the other arbitration proceedings at least if the statutory declaration had been made under some form of compulsory process or in an equivalent situation (such as by reason of a direction of the tribunal in that other arbitration) … A statutory declaration or affidavit made simply for the purposes of evidence in a hearing without such compulsion would not necessarily attract the undertaking.
(Citations omitted)
The foundation to the decisions in Hearne and Sapphire is as to whether the document under consideration has an element of compulsion as to its existence.
It is an integral part of the court process in proceedings that evidence for the purposes of interim proceedings and in chief for a final hearing will be given by affidavit. Orders have been made in these proceedings by way of general directions and trial management that affidavit evidence for witnesses upon which a party intends to rely must be filed in accordance with those directions.
The documents for which leave is sought comprise affidavits of the parties and a Notice of Risk filed by the respondent. I consider that the Harman implied undertaking applies to those documents.
An application for leave to be released from the implied undertaking must be made. The test to be satisfied is whether there is any injustice caused to a party providing the document and that special circumstances should exist.
Burchett J discussed this requirement in Holpitt Pty Ltd v Varimu Pty Ltd & Ors (1991) 29 FCR 576. He commented at 578 that:
In those circumstances it is easy to understand why it may have been thought the reasons required to be cogent and persuasive.
His Honour went on:
As far as the expression “special circumstances” is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? “Special” is one of those words which derive almost all of their meaning from the context … If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise.
The current application seeks the release of documents, prepared for the purposes of parenting orders and financial settlement, to be used in the preparation and advancement of the applicant’s defence to a charge of assault involving the respondent as the complainant.
To some extent the respondent’s concession that she does not oppose the use by the applicant of portions of her affidavit sworn 5 November 2020, is an acceptance that special circumstances exist which would justify a release from the implied undertaking.
The consideration is therefore whether the balance of the documents sought have relevance to the application.
It is not a matter for the Court to determine the manner in which the applicant seeks to utilise the matters contained in the documents sought. The applicant does not seek leave to be released from the implied undertaking for any other purpose other than the criminal proceedings involving the respondent as the alleged victim and the applicant as the alleged perpetrator.
I consider that there exists special circumstances which would justify a release from the implied undertaking. The release is for no other purpose than for use in the criminal proceedings. Accordingly, I grant the application of the applicant.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 21 February 2022
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