Eastick & Burrows

[2024] FedCFamC1F 718

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eastick & Burrows [2024] FedCFamC1F 718

File number(s):

MLC 13352 of 2024

Judgment of:

BENNETT J

Date of judgment:

28 October 2024

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – relief from Harman undertaking – provision of documents in concluded parenting proceedings to Magistrates Court for use by parties in family violence proceedings

Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283

Littlefield & Pemble [2023] FedCFamC1A 198; (2023) FLC ¶94-165

Division:

Division 1 First Instance

Number of paragraphs:

17

Date of hearing:

28 October 2024

Place:

Melbourne

Counsel for the Applicant:

Ms Goldthorp

Solicitor for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Litigant in Person

Counsel for the Independent Children's Lawyer:

Ms Stavrakis

Solicitor for the Independent Children's Lawyer:

Walters Family Law Pty Ltd

ORDERS

MLC 13352 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EASTICK

Applicant

AND:

MS BURROWS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	28 OCTOBER 2024

THE COURT ORDERS THAT:

1.Service of the Initiating Application filed on 21 October 2024 and associated documents is deemed to have been effected on the mother and further compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) as to service is dispensed with.

2.Pursuant to Rule 6.04 of the Rules the applicant father and the respondent mother be granted permission to rely on and produce in the Magistrates’ Court of Victoria No.: … the following documents:

(a)the Psychiatric Assessment prepared by Dr H regarding the parties dated 15 February 2021;

(b)the E Family Services Family Report prepared by Ms K dated 24 April 2021;

(c)the Reasons for Judgment delivered by the Honourable Justice Bennett on 12 July 2021; and

(d)a copy of this Order and ex-tempore reasons.

3.These reasons be transcribed and be made available to the parties and the Independent Children’s Lawyer.

4.The father’s solicitor be responsible for transmission of documents set out at Order 2 to the Magistrates’ Court at Melbourne and the father’s solicitor copy the mother at her email address in that correspondence so that she knows precisely which documents have been provided. 

5.All extant applications be otherwise dismissed and the proceedings be removed from the Active Pending Cases List.

6.The Independent Children’s Lawyer is hereby discharged.

AND THE COURT NOTES THAT:

A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex-tempore

BENNETT J

1. This matter comes before me urgently in the context of forthcoming proceedings in the domestic violence jurisdiction of the Magistrates' Court at Melbourne.  The family law proceedings concern the children X (born 2010) and Y (born 2011) in respect of whom I made final orders on 12 July 2021.  The effect of the extant Order in this court is that the mother has no enforceable right to see the children. In short, he alleges that the mother brought about a meeting between herself and the children by attending at a bus stop regularly used by the children bus stop on 30 May 2024 and this has frightened the children and disrupted their routine.  Proceedings have ensued under the Family Violence Prevention Act 2008 (Vic) in the Magistrates' Court. The father wants to refer to and use documents in the concluded family law proceedings in support of his application in the State court.

2. Today, the father is represented by Ms Goldthorp, the mother represents herself, and Ms Stavrakakis represents the independent children's lawyer, who is Ms O. I commend Ms O for getting on top of these proceedings so quickly.

3. The mother initially said that she had not been served with the father’s application and had only read the father’s affidavit in support. The father’s affidavit is long and comprehensive. Rule 2.28 of the Federal Circuit and Family Court Rules 2021 provides that an application initiating proceedings must be served personally. The father relies on an affidavit of attempted personal service and accompanying affidavit of his solicitor both made on 25 October 2024. The affidavits record that personal service was attempted on 24 October 2024 at the address recorded on the mother’s Notice of Address for Service but that the person who answered the door claimed the mother was not in attendance. The process server recorded seeing a “slender female with long wavy dark brown hair” who left the room when the process server knocked on the door.

4. The mother has had access to the court’s portal, she has filed a notice of address for service. Accordingly, if the mother has not yet read the application and other associated documents, it is only because she has not bothered to look. 

5. I accept Ms Goldthorp's assurance, supported by the affidavit of the solicitor, that the initiating application and associated documents were sent to the mother by email on 24 October 2024. The mother did not contradict this statement.

6. I find that the mother has notice of these proceedings and has been accorded procedural fairness. In the circumstances of this urgent application, the limited nature of the application, and given the mother has read the father’s affidavit and otherwise had an opportunity to read all other the documents prior to the hearing today, I dispense with the requirement for personal service of this application pursuant to Rule 1.31.

7. The mother did not seek an adjournment. The matter proceeded on submissions only.

8. The father seeks relief from rule 6.04 of the Federal Circuit and Family Court Rules 2021, which precludes use of documents in these proceedings or disclosure of them without the Court's permission.  The controversy in the Magistrates' Court at Melbourne relates directly to the children.  I am satisfied that the report of Dr H dated 15 February 2021, the family report of Ms K dated 24 April 2021 and the reasons for judgment by me on 12 July 2021 would be sufficient. The presiding State Magistrate should be advised that there was no appeal filed I relation to the final family law order. The Order of 12 July 2021 remains in full force and effect.

9. Rule 6.04 gives expression and wider application to what is colloquially referred to as the Harman undertaking. The Harman undertaking is a way for the court to ensure that sensitive information disclosed during legal proceedings is not used inappropriately. It is an implied undertaking that documents obtained in legal proceedings are only allowed to be used for their intended purpose and not for anything else. The obligation applies to both parties and their legal representatives, and can be enforced as if it were an order of the court.

10. In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31] the Full Court of the Federal Court said:

    31.In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. 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. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:

    •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 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; and

    •most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

11. Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 was applied in this Court most recently in Littlefield & Pemble [2023] FedCFamC1A 198; (2023) FLC ¶94-165.

12. I am satisfied that there are special circumstances in this case which permit the release of the documents. Indeed, this is not the first time the documents have been released to the Magistrates' Court. The Dr H report and the reasons for judgment have previously been relied upon, with the permission of this Court, in the Magistrates' Court.  The father now seeks to use them on the Magistrates' Court in Melbourne.  I am satisfied that access by both parents to the documents and the family report and these reason and the ability to rely on them in the state court is in the interest of justice, entirely consistent with the best interests of the children and fair. The mother’s objection was that the father has delayed in making this application. However, she did not demonstrate any prejudice.

13. The mother submitted that she has sent correspondence to the father asking to see the children and has produced clean hair follicle tests and that it is unreasonable to prevent her from spending time with the children. She submits that past history is not relevant, and she wants to look to the future. I find her attitude in this respect to be unrealistic and bordering on disingenuous, as was her submission that she had not been served with the father’s documents.

14. Without having heard argument on the matter, my preliminary view is that the shortcomings in the mother’s capacity to parent, which were considered in the earlier proceedings, were more complex than drug use. There were complex psychological and entrenched behavioural issues to be addressed by the mother. Production of authenticated hair follicle test results indicating no use of illicit drugs is commendable but, taken alone, unlikely to be sufficient to justify a reversal of, or significant amendment, to the current parenting arrangements wherein the mother spends no time with the children.

15. If the mother wants to spend time with the children, she well knows that she needs to make a application to this court to do so.  She has not done so.  For the record, there is no application pending in this Court in relation to the children apart from the application with which I am now dealing. Consideration should be given to an early request for the independent children’s lawyer to be re-appointed at an early juncture if further proceedings are instituted in this court

16. The final order dated 12 July 2021 in the previous proceedings contain the Order that:

    11. That any application to enforce, implement, suspend, set aside or vary these Orders should be listed in the first instance before the Honourable Justice Bennett without the necessity for a listing before a Registrar, if reasonably available and subject to any application that a parent my make. For that purpose, the party making application bring this order to the attention of the Court when making such application.

17. That remains the case.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       30 October 2024