Earnshaw & Farella (No 2)
[2022] FedCFamC1F 1020
Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020
File number(s): BRC 8029 of 2020 Judgment of: CAREW J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – whether leave is necessary to enable a party to provide a copy of a parenting order, family report and any reasons for judgment to treating health practitioners pursuant to r 6.04 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 – whether leave is necessary to provide parenting order to children’s schools, extracurricular activity provider and medical or allied health providers – consideration of s 121 of the Family Law Act 1975 (Cth) – where an affidavit or family report is found to fall within scope of r 6.04 and leave is required – where leave is not required to provide a copy of an order to the children’s schools, extracurricular activity providers or medical or allied health providers – where leave is required to provide a copy of any reasons for judgment to treating health practitioners Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Adair & Adair [2021] FedCFamC2F 333
AH v SS (2006) 34 FamLR 24
Attorney General v Wurrabadlumba (1990) 101 FLR 414
Evert & Pascal [2022] FedCFamC1F 569
Halstron & Halstron [2018] FamCA 887
Hearne v Street (2008) 235 CLR 125
In the marriage of T. and T. (1984) FLC 91-588
In the matter of P (a child) (1993) FLC 92-376
Kipling & Netis [2020] FamCAFC 79
Lietzau & Lietzau [2018] FamCAFC 167
Oscar & Traynor [2008] FamCAFC 158
R Pty Ltd atf the Fletcher Trust & Jones and Anor [2016] FamCA 928
Re W: Publication application (1997) FLC 92-756
Toric and Toric (1981) FLC 91-046
Number of paragraphs: 48 Date of last submission/s: 16 December 2022 Date of hearing: 14 December 2022 Place: Brisbane Counsel for the Applicant: Mr J. Todman Solicitor for the Applicant: Stolar Law Pty Ltd Counsel for the Respondent: Mr W. Ness Solicitor for the Respondent: Cherry Family Lawyers Counsel for the Independent Children's Lawyer: Ms M. Murphy Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDER
BRC 8029 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EARNSHAW
Applicant
AND: MR FARELLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS THAT:
1.The applicant and respondent have leave to provide a copy of the following documents:
(a)the family reports of Ms E dated 1 October 2021 and 29 November 2022; and
(b)the ex tempore reasons for judgment dated 14 December 2022;
upon request, to any medical or allied health practitioner (including a mental health practitioner or family therapist) engaged by the applicant and/or respondent to assist either themselves, or a child or the children collectively.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Carew J:
A short point arises for determination concerning whether or not leave is necessary pursuant to r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) (or otherwise) to enable a party to provide a copy of a parenting order, family report and any reasons for judgment, to treating health practitioners of the parents and/or children, and whether or not leave is necessary (pursuant to r 6.04 or otherwise) to provide a copy of a parenting order to the children’s schools, extracurricular activity provider or medical or allied health providers engaged from time to time.
Short background
The substantive proceedings were listed for final hearing on 14 December 2022. Ms Earnshaw (“the applicant”) is the mother of four children and Mr Farella (“the respondent”) is the father. The proceedings only concerned the two youngest children, X, 16 years of age, and Y, 11 years of age. The two older children are adults.
The applicant and respondent resolved their parenting dispute on the first day of trial and a final parenting order was made with short reasons for judgment delivered ex tempore indicating the Court’s satisfaction that the proposed order was in the best interests of the children in the circumstances of the case. Included in the proposed minute of order were the following provisions:
28.Pursuant to s 121 of the Family Law Act 1975 (Cth), the parties shall be at liberty to provide a copy of:
a. The family reports of [Ms E]; and
b.Any reasons for judgment delivered in support of parenting orders; and
c. These orders;
To any health practitioners (including mental health practitioner) engaged by the parties to assist either themselves, or a child of the children collectively, including any family therapist.
29.Pursuant to section 121 of the Family Law Act the parents are at liberty to provide a copy of these orders to any school, extracurricular activity provider, medical or allied health provider who engage with the children from time to time.
When asked why liberty to provide the identified documents pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”) was necessary, counsel sought and were granted time to consider the matter. Section 121 of the Act prohibits the publication of material to the public or a section of the public that identifies a party to proceedings, any related or associated person or a witness in the proceedings. There are certain exceptions set out in s 121(9), including if the publication is to a person who is a member of a profession, in connection with the practice of that profession.
Section 121
Section 121 of the Act 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.
(2) A person who, except as permitted by the applicable Rules of Court, 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 (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b)in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or
(c)in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4)A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.
(5) An offence against this section is an indictable offence.
(8)Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9)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
(aa)the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
(10)Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
(11) In this section:
court includes:
(a)an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b)a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
electronic means includes:
(a)in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
Upon the proceedings resuming before me on 14 December 2022, Ms Murphy for the independent children’s lawyer briefly submitted that, on reflection, the provision of the proposed documents to the persons/organisations named was not a publication to a section of the public and in so far as publication was to a professional, then it came within the exception in any event. Ms Murphy’s submissions were adopted by counsel representing each parent. The inclusion of paragraphs 28 and 29 of the minute of order was not pressed by any party in the form set out above.
Conclusion - s 121
The rationale for the prohibition in s 121 is to prevent the breach of a person’s privacy by an account of their proceedings being given to a public group. As noted by Bryant CJ in AH v SS[1], s 121 was inserted into the 1975 Act to prevent the “prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings.”
[1] (2006) 34 FamLR 24 at 29.
There are several elements to establishing a breach of s 121:
(a)That a person publishes in a newspaper, or periodical publication, by radio broadcast or television or by other electronic means (definition of ‘electronic means’ includes in the form of data, text or images by means of guided and/or unguided electromagnetic energy – ss 121(11) e.g. email); or
(b)That a person otherwise disseminates;
(c)To the public or a section of the public;
(d)An account of any proceedings or any part of any proceedings;
(e)That identifies a party, a person related to or associated with a party, a witness in the proceedings.
Very little, if any, attention has been given in the authorities to the means of the publication or dissemination sought to be prevented i.e. in a newspaper etc. or by other electronic means. However, the practical application of s 121 has been considered in a number of cases in this Court.
In Toric and Toric,[2] the Full Court said in obiter that the provision of court documents to a consulate with the intention of seeking advice was not a publication within the meaning of s 121 of the Act. It was suggested in that case that a ‘publication’ would not occur if court documents were provided to a person in order for them to be translated or to receive advice about the impact of them.
[2] (1981) FLC 91-046 at 76,396.
In In the marriage of T. and T.,[3] the Full Court held that:
… the transmission of documents to the Attorney-General or to responsible officers of his Department is not “publishing” or “publication” “to the public or a section of the public” within the meaning of sec. 121 ….
[3] (1984) FLC 91-588 at 79,747.
In In the matter of P (a child),[4] the Full Court held that the proposed provision of copies of family reports to an expert retained by a party in the course of the proceedings was not prohibited by s 121(1) of the Act as it would not amount to a publication or dissemination to “the public or a section of the public”, but, in any event, s 121(9)(f)(i) would apply.
[4] (1993) FLC 92-376 at 79,895.
The Full Court of this Court in Re W: Publication application[5] held that copies of judgments of the Court:
… insofar as they relate to matters with which child welfare authorities are legitimately concerned, may be forwarded to such authorities without the commission of a breach of s 121, because for such a purpose, the authorities would not constitute “the public or a section of the public”.
[5] (1997) FLC 92-756 at 84,262.
The Full Court in Oscar & Traynor[6] said in obiter:
62.We would not regard the principle stated in Re W as being restricted to “child welfare authorities”. Even had his Honour not directed that a copy of his reasons and orders be provided to the contact centre, it is quite arguably the case that the Independent Children’s Lawyer could have made the documentation available to the centre without leave of the Court.
[6] [2008] FamCAFC 158 at [62].
The meaning of “the public or … any member of the public” was discussed in a criminal law context, by the Court of Criminal Appeal of the Northern Territory in Attorney General v Wurrabadlumba[7] (“Wurrabadlumba”). The question for determination was whether or not a person charged with manslaughter could be charged with an alternative offence arising out of “an act … that causes serious danger… to the lives … of the public or to any member of it …”. The person who died was the de facto partner of the accused person. In answering ‘no’ to that question, the court said:
The expression "the public" is not an expression of a fixed and definite meaning. It is a term of uncertain import; it must be limited in every case by the context in which it is used. The protean character of the word is obvious, often to the point of absurdity. For instance, in England and in some parts of Australia the term "public School" means precisely the opposite. Nevertheless, and speaking very broadly, there is usually a connotation which contrasts with "private". The Oxford English Dictionary commences its survey of the word "public" with this observation:-
"In general, and in most of the senses, the opposite of private."
…
… it would have been a simple matter to use the expression “any person” rather than “the public or to any member of it” …
(Citations omitted, emphasis added)
[7] (1990) 101 FLR 414 at 417 (per Asche CJ with whom Gallop and Angel JJ agreed).
The mischief sought to be addressed by s 121 is to balance the public interest in open justice with the personal interests of a party (and related, associated persons and witnesses) to privacy. If the intention of s 121 was to restrict the ‘publication’ or ‘dissemination’ of ‘any account of proceedings’ to ‘any person’ it would have been a simple matter to state that. In my view, ‘publish’ in the context of s 121 does not have the same meaning it does in other types of proceedings e.g. defamation, where a publication to one person can be sufficient.
It seems to me that if the ‘account of proceedings’ is provided to a person in a private capacity or professional capacity, s 121 is not breached. In particular, the prohibition as contained in s 121 is not intended, in my view, to restrict the ability of parties and their children to properly engage with a counsellor or therapist, whether or not that person is a member of a profession. Nor is it intended, in my view, to restrict the provision of information to persons with a proper interest in what orders are in place and what obligations those orders create for the parties, and how such third parties can best respond in certain circumstances. There is of course a specific exemption in s 121(9)(f)(i) that would apply to a person who is a member of a profession such as a psychiatrist providing therapy.
Accordingly, leave is not necessary pursuant to s 121 of the Act.
Rule 6.04
Ms Murphy nevertheless submitted that leave may be required pursuant to r 6.04 of the Rules, given the obligation created therein to use a document inspected or copied in relation to a proceeding, for the purposes of the proceeding only.
Rule 6.04 is contained in Part 6.1 of the Rules which deals with the “duty of disclosure”, and 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.
Counsel for the parents sought a further opportunity to consider the application of r 6.04 and brief written submissions were received by both counsel.
Counsel for the mother submits that leave is required pursuant to r 6.04 of the Rules to provide a copy of the family report to a health practitioner as proposed. Confusingly, counsel submits that leave is both required and not required to provide a copy of the order to the children’s school, medical or allied health practitioners and, without submitting whether leave is required to provide a copy of the order to extracurricular providers, counsel merely submits that a copy of the order should not be provided. The main focus of the brief submission on behalf of the mother is whether or not “special circumstances” exist to warrant leave being granted, and it is submitted, on behalf of the mother, that such circumstances do exist.
Counsel for the father contends that leave is necessary, pursuant to r 6.04 of the Rules, to provide a copy of the family report to a health practitioner engaged by the parties to assist themselves or a child or children collectively. Further, it is submitted on behalf of the father that leave is not required to provide a copy of the order or any reasons for judgment to a health practitioner or to provide a copy of the order to any school or extracurricular activity provided.
What the authorities say
In R Pty Ltd atf the Fletcher Trust & Jones and Anor,[8] (“R Pty Ltd”) I had occasion to consider whether leave was necessary, and if so whether leave should be granted, to produce a range of documents including orders, affidavits, transcripts, applications, etc. in proceedings pending in the Supreme Court of Queensland (between different parties to those that had been involved in concluded proceedings in this Court). All parties, in that case, agreed that leave was required, either pursuant to a similar provision in the Family Law Rules 2004 (r 13.07A[9] now replaced by r 6.04 of the Rules) or arising as a result of a general obligation as discussed by the High Court in Hearne v Street[10] (“Hearne”). In considering what restrictions existed upon the use of the documents identified in R Pty Ltd, I set out the following (relevantly):
[8] [2016] FamCA 928.
[9] Rule 13.07A was in the following terms:
[10] (2008) 235 CLR 125 at 154.
30. There are a number of restrictions imposed on the use of documents produced, disclosed or subpoenaed for proceedings in this Court. The restrictions in relation to the use of information and documents apply not only to a party to Family Court litigation but also to strangers to that litigation.
…
32. Rule 13.07A of the Rules restricts the use of documents inspected or copied to the case only, save where the Court permits otherwise.
33. Further, there may be an implied undertaking not to disclose documents or information for any purpose other than for which it was given save where it has been received into evidence or where the person has been relieved from the implied undertaking.
…
40.Although this rule is found in Division 13 which relates to the Duty of Disclosure, the rule is not, on its face, limited to documents produced pursuant to such a duty but extends to a document inspected or copied under the Rules generally and it would apply to at least some of the documents sought to be used by the parties.
…
42.While often referred to as an undertaking it is in fact a substantive legal obligation to the Court. In the High Court decision of Hearne v Street the nature of the undertaking was described as follows:
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 to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
43.The purpose of the undertaking is to preserve privacy and confidentiality so far as reasonably possible while ensuring that justice is done.
44.The Family Court of Australia is a superior Court of record created by Statute. It has the jurisdiction and powers devolved to it by the Act and Rules but it also has power to control and manage its own process. In my view, this would include the power to limit the use of documents produced or disclosed in proceedings before it, quite apart from any statutory provision to that effect.
45.As observed by the High Court in Hearne it is not uncommon for this general law protection to be “buttressed by protection from rules of court.”
(Footnotes omitted)
Leave was considered necessary and granted in that case.
The application of the Hearne obligation and r 6.04 (or its predecessor, r 13.07A) has been considered in a number of cases.
In Halstron & Halstron,[11] Rees J held that the wife in a financial case did not require leave pursuant to r 13.07A (now r 6.04) to permit her advisor to view documents produced on subpoena and documents generated by the respective lawyers in the course of the proceedings for the purpose of giving her advice. Her Honour referred to the Hearne obligation and the predecessor to r 6.04, and held:
12. … I do not consider that allowing an advisor to inspect documents for the purpose of obtaining advice in the proceedings constitutes “use” of the documents for a purpose other than that for which the documents were prepared or produced.
13. In relation to the husband’s assertion that to allow the wife’s advisor access to documents would be a breach of Rule 13.07A, I do not accept that contention.
14. In the event that the wife’s advisor were to consider the contents of documents either prepared or produced in the course of the proceedings, that would constitute a use of the documents “for the purpose of the case only”.
15. It is common in proceedings of a financial nature for parties to seek advice from persons other than their lawyers, such as accountants, financial advisors and the like, who are then bound by the same obligations of confidentiality as are the parties.
[11] [2018] FamCA 887.
Interestingly, r 6.04(2) of the Rules includes a specific exemption for solicitors to disclose the contents of a document or provide a copy to their client or counsel and likewise, for clients to disclose the contents of documents or provide a copy to their solicitor or counsel. It is not clear why such an amendment was considered necessary. It is hard to imagine any circumstance where such disclosure would be other than “for the purpose of the proceeding”.
In Lietzau & Lietzau,[12] the Full Court upheld a decision to refuse leave to a party to inspect medical records that had been produced pursuant to subpoena and observed the settled principle that it is “inappropriate for documents provided pursuant to subpoena to be used for any purpose other than the purpose for which they were produced to the court: r 13.07A of the Family Law Rules 2004 (Cth)”. The concern in that case was that upon inspection the documents would be disclosed to a third party.
[12] [2018] FamCAFC 167 at [9].
In Kipling & Netis,[13] the Full Court observed the purpose of the Hearne obligation (and the corresponding rule) was to prevent the use of documents for “an ulterior motive”.
[13] [2020] FamCAFC 79 at [9].
In Evert & Pascal,[14] Berman J held that leave was necessary to disclose, in criminal proceedings in another court, affidavits filed in interim proceedings in a family law matter and reasons for judgment (from another court exercising family law jurisdiction). His Honour said that the Hearne obligation “is expressed at r 6.04 of the Rules, in relation to what use parties can do (sic) with a document they inspect and/or copy”. The “coercive nature of the obligation imposed by the Court for parties to disclose documents and to make full and frank discovery” was noted and Berman J said that a witness statement or an affidavit are “not dissimilar in the purpose for which they are intended namely, the presentation of evidence”. His Honour included the previous reasons for judgment in the order granting leave. No separate discussion is contained in the judgment relating to the requirement of leave to disclose reasons for judgment.
[14] [2022] FedCFamC1F 569.
In Adair & Adair,[15] a judge of the Federal Circuit and Family Court of Australia Division 2 held that leave was required, pursuant to r 6.04 of the Rules and the Hearne obligation, to produce a copy of affidavits by the husband and the wife filed in that court, in proceedings in another court involving criminal charges against the husband. It was argued in that case, that r 6.04 has no application to affidavits, as distinct from documents produced under subpoena or otherwise by way of disclosure, and reliance was placed upon the fact that the rule appears in Chapter 6 of the Rules, which deals with “disclosure and subpoenas’. The submission was rejected on the basis that Hearne, and therefore r 6.04, applies not only to documents that have been disclosed but also to affidavits that a party was compelled, by the court’s processes, to file.
[15] [2021] FedCFamC2F 333.
Conclusion
Neither counsel separately considered the Hearne obligation in their submissions. Accordingly, I have not been assisted by submissions on the effect of the Hearne obligation vis a vis r 6.04 of the Rules.
The Hearne obligation applies to documents or information that have been produced or provided under compulsion i.e. either by rule, order or otherwise. The Hearne obligation is “buttressed by protection” in r 6.04 of the Rules, but r 6.04 does not purport to be a codification of the Hearne obligation. Indeed r 6.04 on its face appears to be of somewhat narrower import.
Rule 6.04(1) of the Rules restricts the use of a document, which has been inspected or copied, in relation to a proceeding, under the Rules or an order, for the purpose of the proceeding only and prohibits the disclosure of the contents or a copy of the document to any other person without leave.
Family report
While I initially had some difficulty accepting that an affidavit or a family report could fall within r 6.04(1), when regard is had to the requirement in r 6.01(1) for a party to make full and frank disclosure of all information, I have come to the view that an affidavit or a family report, which will of necessity disclose information provided by a party, would come within r 6.04(1).
If I am wrong in that conclusion, arguably, the Hearne obligation is even more far reaching than the obligation contained in r 6.04, in that where a party to litigation is compelled for whatever reason to disclose documents or information, neither the document nor the information disclosed can be used for any purpose other than for which it was given, without the leave of the Court. The exception noted in Hearne i.e. unless it is an affidavit received into evidence, has no application, in my view, to proceedings in this Court. In other courts, once an affidavit is received into evidence it is generally in the public domain: not so in this Court, given the restrictions contained in s 121.
As 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.
I must say that my conclusion that leave is required to provide a copy of the family report to treating health practitioners is regrettable, but one that I consider necessary under r 6.04 and/or the Hearne obligation. It would be preferable to have a specific exemption contained in the rules to enable family reports to be provided to treating health practitioners, if thought to be of assistance in the provision of treatment. It might also be possible for all parties to consent to the family report being provided, but as the submissions did not address such a possibility, I am unable to determine that question.
The court order
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.
Accordingly, I find that leave is not required to provide a copy of the order as proposed by the parties to the children’s schools, extracurricular activities providers or medical or allied health providers engaged from time to time. I would add that a copy of the order should only be provided if requested, and only to assist such persons/institutions in understanding the obligations and restrictions created by the order, in the delivery of their service.
Reasons for judgment
Whether reasons for judgment come within r 6.04 is a more difficult concept. Reasons for judgment generally set out information disclosed by a party under compulsion, whether by the Rules requiring full and frank disclosure of information, or by court order. However, I consider it to be a stretch too far to conclude that reasons for judgment could be classed as a document, inspected or copied, in relation to a proceeding, “under these Rules” or an order.
However, arguably any reasons for judgment may well be restricted under the Hearne obligation, given the broader wording of that obligation. The reasons generally contain reference to documents and information that a party has been compelled to disclose, not just by the Rules or by order but “otherwise”.
Without the benefit of argument, my tentative view is that leave is required to provide a copy of any reasons for judgment as proposed, to treating health practitioners, but again should only be provided upon request and if considered likely to assist in the provision of therapy/counselling.
Should leave be granted?
The relevant factors in considering whether or not leave should be granted were discussed in R Pty Ltd[16] as set out below:
60. A person may be released from an implied undertaking not to use the documents where there are special circumstances which would justify that course. In Re Springfield Nominees Pty Ltd v Bridgelands Securities Ltd Wilcox J said that 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”. While Wilcox J cautioned against prescribing an exhaustive list of factors that might lead to a finding of special circumstances he did identify the following matters as relevant:
… 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 documents 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.
[16] R Pty Ltd (fn 8).
In my view, the special feature justifying the release of the report and reasons for judgment to the treating medical practitioners (if requested), would be to assist in the provision of counselling and/or therapy, in the hope that it might enhance the prospects of success by having any additional information to be found in the documents.
Miscellaneous
Included in the Minute of Order were reciprocal paragraphs in the following terms:
Specific issues
16.The Mother [and father are] restrained by way of injunction from doing any of the following:
a. disclosing any and all aspects of these proceedings in any and all forums;
The inclusion of those paragraphs were not pressed for the reasons stated by the Full Court in Sitwell & Sitwell,[17]:
[17] (2014) 51 Fam LR 159, [22] – [23].
68. In our opinion, the injunctive relief sought on 21 October 2013 merely restated, or restated the primary effect of, FLA s 121. In the absence of "special circumstances", therefore, it was unnecessary and undesirable for the Court to grant the relief. No "special circumstances" were identified before Johnston J, and none existed. Similarly, no "special circumstances" were identified before us. It follows that his Honour's decision to dismiss the wife's application was entirely proper, and that the appeal must therefore be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 20 December 2022
A person who inspects or copies a document, in relation to a case, under these Rules or an order:
(a) must use the document for the purpose of the case 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.
6
8
0