Evert & Pascal
[2022] FedCFamC1F 569
•9 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Evert & Pascal [2022] FedCFamC1F 569
File number(s): ADC 5265 of 2020 Judgment of: BERMAN J Date of judgment: 9 August 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where the husband seeks leave to provide material from the Court and information pursuant to the Family Law Information Sharing Co-Location Project to his criminal solicitors – Consideration of the implied undertaking in Harman & Secretary for the Home Department [1983] 1 AC 20 – where s 121 of the Act and r 6.04 of the Rules is considered – where there is consideration of special circumstances which would justify release from the implied undertaking.
FAMILY LAW – LITIGATION FUNDING - where the wife seeks an interim application for litigation funding and the husband opposes the application - consideration of the parties’ legal costs – where the asset pool is unknown – Where the Court takes a conservative approach.
FAMILY LAW – REPATRIATON OF FUNDS - where the wife seeks repatriation of funds held in her Country H nationality Solicitor’s trust account to her Australian Solicitor’s trust account – where the husband opposes the application – where a previous order has already been made and the husband has not complied with the same.
FAMILY LAW – PERSONAL EFFECTS - where the wife seeks the delivery up of personal effects – where the husband asserts he has delivered the items – where evidence cannot be tested and a finding cannot be made on an interim – where the issue can only be determined at trial
Legislation: Family Law Act 1975 (Cth), ss 117, 117(2A), 121
Criminal Law Consolidation Act 1935 (SA), s 50
Cases cited: Commissioner of Taxation & Darling (2014) FLC 93-583
Harman & Secretary of State for the Home Department [1983] 1 AC 280
Hearne & Street [2008] 235 CLR 125
Klearchos & Klearchos & Ors [2015] FamCAFC 217
Medlow & Medlow (2016) FLC 93-692
Oates & Q & Anor (2010) FLC 93-451
Springfield Nominees Pty Ltd & Bridgelands Ltd (1992) 38 FCR 217
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Waldman & Waldman [2013] FCCA 1035
Division: Division 1 First Instance Number of paragraphs: 103 Date of hearing: 22 July 2022 Place: Adelaide Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Belperio Clark Counsel for the Respondent: Ms James Solicitor for the Respondent: Wadlow Solicitors Counsel for the Independent Children’s Lawyer Mr Kent ORDERS
ADC 5265 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EVERT
Applicant
AND: MS PASCAL
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
9 August 2022
THE COURT ORDERS:
1.That the Application in a Proceeding filed 14 April 2022 be dismissed.
2.That the husband and the wife be at liberty to obtain a copy of the Family Law Information Sharing Co-location Project South Australian Police - Information Release document.
3.That the husband be at liberty to provide to his criminal lawyer, Director of Public Prosecutions and South Australian Police the following documents:
(a)Affidavit of Mr Evert filed 30 October 2020;
(b)Affidavit of Ms Pascal filed 7 December 2020;
(c)Affidavit of Mr Evert filed 14 December 2020;
(d)Affidavit of Mr Evert filed 19 February 2021;
(e)Judgment of Judge Kari dated 25 February 2021;
(f)Affidavit of Mr Evert filed 20 May 2021;
(g)Affidavit of Mr AA filed 18 June 2021; and
(h)Affidavit of Ms Pascal filed 18 June 2021.
4.That the Response to an Application in a Proceeding filed 3 June 2022 is otherwise dismissed.
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 of Evert & Pascal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 2 November 2020, Mr Evert (“the husband”) seeks parenting orders in respect of X born 2009 and Y born 2010 and Z born 2012 (collectively “the children”).
By Response to Initiating Application filed 7 December 2020, Ms Pascal (“the wife”) opposes the parenting orders sought by the husband and in addition seeks the following orders:
(1)That by way of settlement of property:
(a)the husband do pay to the wife the proceeds of the sale of the former matrimonial home at BB Street, Suburb CC, City J, Country H;
(b)such further or other order as the Court deems fit.
By Reply filed 14 December 2020, the husband seeks an order that the wife’s application for property settlement be dismissed.
By Application in a Proceeding filed 14 April 2022, the wife seeks orders summarised as follows:
(1)That the husband cause the wife’s personal property and records, together with the personal property of the children, to be delivered up to her within 14 days;
(2)That should the husband not comply with the order for delivery up of the personal property of the wife and children, then she be at liberty to attend at the husband’s rental premises at DD Street, Suburb EE, together with her solicitors and a member of SA Police, for the purpose of collecting her property and the property of the children;
(3)That the sum of Country H currency 1,000,000 held by the husband in Country H, be released to the wife for litigation funding.
(4)That the sum of Country H currency 4,000,000 held in the Trust Account (of the wife’s Country H solicitors) be transferred to the Trust Account of Wadlow Solicitors.
(5)That the husband comply with the orders of Judge Kelly dated 27 January 2022.
(6)That the husband provide his Bank FF Statements for accounts ending …42 and …14 as at 1.00 pm on 8 September 2021.
(7)That the husband provide the documents required pursuant to the relevant Country H financial legislation in relation to the transfer of funds into the GG Attorneys Trust Account.
(8)Costs.
By Response to an Application in a Proceeding filed 3 June 2022, the husband opposes the Application in a Proceeding filed by the wife and in addition, he seeks orders as follows:
(1)That the husband be at liberty to obtain a copy of the Family Law Information Sharing Co-location Project South Australian Police – information release.
(2)That the husband be at liberty to provide his criminal lawyer such documents as are filed in these proceedings or produced for the purpose of these proceedings.
(3)That forthwith upon the making of this Order the parties jointly engage either Ms HH or Ms JJ, whoever is available first in time, for reunification therapy between the children and the father.
(4)For the purposes of reunification therapy:
(a)The costs of same shall be shared equally by the parties;
(b)The therapist shall be provided with a copy of the Family Assessment Report of Ms KK dated 2/3/2022; and
(c)The wife ensure that the children attend all appointments arranged by the therapist.
background
The husband is 61 years of age and the wife is 42 years of age. They are both citizens of Country H. The parties married in City J in 2008. Whilst not agreed as to the date of separation, the parties separated either by October 2019 or at the latest by April 2020.
The parties and their three children now reside in Australia, having migrated from Country H in 2019.
The husband is self-employed. There is some uncertainty as to the nature and extent of his business and whilst it may be conducted via corporate entities, it appears that the business structure is likely to be the alter ego of the husband.
The wife holds multiple professional qualifications. Her current work endeavours belies academic pursuits represented by a number of tertiary degrees and qualifications.
She has held the position of educator from P University.
The parties remain in a high state of conflict as highlighted by the reasons for judgment of Judge Kari (as she then was) delivered 24 February 2021, her Honour’s further judgment of 23 June 2022 and the judgment of Judge Kelly delivered on 4 November 2021.
legal costs of the parties
The husband’s legal costs and disbursements are set out in his Costs Notice of 21 July 2022.
The husband’s costs incurred to date, are in the sum of $135,657 of which there remains outstanding $4,305. The anticipated costs are in the sum of $114,000.
The wife’s costs are set out in her Costs Notice dated 21 July 2022. The costs incurred to date are in the sum of $112,378 with counsel fees of $33,673.
The anticipated costs are in the sum of $70,000 to $90,000 for preparation for trial, and a further $12,000 should the trial extend to five days. In addition, there is likely to be substantial disbursement costs incurred in respect of the single experts. At this stage of the proceedings, it is difficult to comprehend how the combined costs of the parties, has exceeded $300,000, and taking into account the estimates of costs likely to be incurred to the conclusion of the proceedings, the anticipated total costs of the parties may well exceed $500,000.
It may be a timely reminder to the parties, and their legal representatives, that the management of legal costs and r 12.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”) provides some guidance as to the correlation between the costs incurred and the nature of the proceedings:
12.08 (1) The legal costs incurred in a proceeding must be:
(a) fairly, reasonably and proportionately incurred; and
(b) fair, reasonable and proportionate in amount;
in the circumstances of the proceeding.
In considering whether the parties’ legal costs have been “fairly, reasonably and proportionately incurred”, regard must be had to the conduct of the parties, their legal representatives and the complexity of the work undertaken.
the wife’s application
Return of personal belongings and records
The wife’s request for the delivery up of her and the children’s personal records and belongings, has been ongoing since on or about late 2020.
The wife’s assertion is that when the husband vacated the former matrimonial home, he took all of the items in the house. The husband’s response, is to deny that he retains the wife and children’s property requested by the wife and in particular that he left only her wedding dress upon his departure.
Moreover, the husband considers that the furniture and effects that he removed from the former matrimonial home, to install in his new property on or about 28 October 2020, was with the knowledge and understanding of the wife as to what was to be taken.
The husband asserts, that he advised the wife that some of her items could be collected from his premises.
The husband summarises his position by reference to the following paragraphs in his Affidavit filed 3 June 2022:
10.The wife has claimed that I left her with nothing but her wedding dress at the former matrimonial home. What occurred was that after the removalists packed up the trucks to move everything left in the former matrimonial home to my new home (excluding the things in the house that the wife was to collect later), the removalist noticed a box clearly marked “wedding dress” and the removalist asked if they should just leave it. I agreed as the wife had to attend to collect other times within the home.
11.The wife’s father attended at my [DD Street] property and collected everything else that the wife had asked for and more. Photographs of what was collected are annexed hereto at ‘ME1’.
The wife has alleged at paragraph 25 of her Affidavit of 7 December 2020, that she had subsequently attended at the husband’s home with the police in order to “retrieve some of her and the children’s belongings”. The husband denies that the police ever attended at his property.
It is an unfortunate aspect of the manner in which the proceedings are being conducted, that the parties and their legal representatives are barely able to restrain themselves from making often unsubstantiated claims. The level of emotion in the proceedings, as displayed by counsel towards each other and the parties, was palpable. The parties and their legal representatives, need to reflect and look carefully to whether a more dispassionate approach may assist the parties to better resolve their differences. Counsel should consider whether their continued involvement represents a proper discharge of their professional obligations to the Court.
On an interim basis and without the evidence being tested, I am not satisfied that I can find on the balance of probabilities, that the husband retains the wife and the children’s personal belongings. Whilst it may be cold comfort to the wife, the husband would be aware that his denial of retention of the wife and the children’s personal effects and belongings, is unequivocal and that there would be significant and adverse consequences should the evidence ultimately reveal that the husband does in fact hold the wife and the children’s belongings.
A further difficulty in the wife’s application is that it does not set out in detail the items that she seeks to be returned other than their broad description, although there is more detail in annexure MR1 to the wife’s affidavit of 14 April 2022. The issue therefore can only be determined at trial and upon hearing the evidence of the parties.
The wife seeks orders that in the event of the non-compliance by the husband of the return of her personal belongings and those of the children, that she be at liberty to attend the husband’s home together with her solicitors and a member of SAPOL. Whilst there is no need to consider such an order at this time, the concept of the wife, her solicitor and a police officer attending the husband’s home is fanciful in the absence of a finding that the items purportedly retained by the husband can be identified and are retained by him.
Paragraphs 2 and 3 of the Application in a Proceeding filed 14 April 2022 will be dismissed.
Retention of funds
It is unsurprising that the wife seeks money to fund her litigation, which she acknowledges, has incurred significant fees.
Whilst not directly related to the wife’s application for litigation funding, she also seeks that the Country H currency 4,000,000 held in the wife’s Country H solicitor’s trust account, being the net-proceeds from the sale of the former matrimonial home in Country H, be transferred to her current solicitor’s trust account.
By order of 8 September 2021, Judge Kelly ordered as follows:
13.Within seven (7) days, the husband transfer the sum of […]4,000,000 [(Country H currency)] into a bank account to be nominated by the wife, such funds to be held on trust by her pending finalisation of property settlement proceedings or determination of the husband’s application for change of forum.
It is now not controversial that the husband no longer challenges forum.
Her Honour also ordered that each party be restrained from using or drawing upon the funds arising from the net-proceeds from the sale of the former matrimonial home in Country H, until further agreement of the parties.
The husband acknowledges that the Country H currency 4,000,000, are proceeds from the sale of the property in Country H, which are held in the trust account of the wife’s Country H solicitors.
Without acknowledging the order made by Judge Kelly requiring the transfer of money to a bank account nominated by the wife, the husband opposes the transfer on the basis that:
(a)Capital gains tax will need to be paid in Country H but it has not yet been assessed;
(b)The husband is awaiting accounting advice and/or a response from the Country H Taxation Office as to the extent of any capital gains tax and/or other taxation required to be paid; and
(c)That there is no good reason to repatriate the funds to Australia given that the parties are the subject of injunction both as to the Country H currency 4,000,000 held in the trust account of the wife’s solicitors in Country H and the Country H currency 1,000,000 in an account under the husband’s control.
I am not able to understand the husband’s opposition in circumstances where there is an order made and apparently not being complied with.
The husband does not have the ability to decide the extent to which he will comply with an order of the Court. The order made by Judge Kelly was clear in its terms and provided for the husband to transfer Country H currency 4,000,000, or its Australian equivalent, to a bank account nominated by the wife. There is no complexity about the order and no uncertainty of its terms. It may well be that there will be capital gains tax assessed upon the sale of the former matrimonial home in Country H. If it is then the parties will have to make arrangements for it to be paid. There is no evidence that the uncertainty as to the extent of any capital gains tax payable, if any, would prevent the international transfer of funds.
I do not propose to make an order in terms of the wife’s application in circumstances where an order has already been made.
I remind all parties of their obligation to comply with orders of the Court and I can see no circumstance why the order of 8 September 2021, should be discharged or varied.
Litigation funding
The wife’s counsel confirmed that the application for litigation funding is made pursuant to s 117 of the Family Law Act 1975 (Cth) Act (“the Act”).
The power to make an order for costs on an interim or final basis as set out in s 117(2) of the Act.
In Klearchos & Klearchos & Ors [2015] FamCAFC 217, the Full Court confirmed that a trial judge, in considering an interim application for costs, is required to consider the matters set out in s 117 and, specifically s 117(2A) of the Act.
The only matters that assist the Court in considering what order, if any, should be made pursuant to s 117(2A) of the Act, are set out in paragraphs 17, 18 and 19 of the wife’s’ affidavit of 14 April 2022, which are summarised as follows:
(a)That the wife’s solicitor’s fees have been paid by her parents by way of loan;
(b)That the wife’s income is low, and her expenses are high, and she is not in a financial position to fund the litigation; and
(c)That the husband has the ability to fund his litigation by drawing from funds in the matrimonial pool.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,646, the Court considered that for an interim order for distribution of property to be made it must be amenable to adjustment on a final hearing.
The very nature of an interim hearing is such that the Court is not in a position to properly evaluate the evidence and accordingly, the Court should take a conservative approach, including in respect to determining whether there is likely to be sufficient resources of the parties available at final hearing to accommodate any “adjustment issue”.
The wife carries the onus of satisfying the Court that any interim distribution of matrimonial property, can be accommodated at a final hearing. This was made clear in Medlow & Medlow (2016) FLC 93-692 at 81,088 wherein the Full Court said at 81,090:
86.The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent’s] property claims. The onus was not on [the respondent] to adduce such evidence.
Whilst the grounds for an order that would provide either litigation funding, or interim property settlement, are not required to be compelling, nonetheless an applicant is required to show more … “than a mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party”.[1]
[1] Strahn & Strahan(Interim Property Orders) (2011) FLC 93-466 at [85,646][139]
There is some good reason to explore whether the property proceedings can be bifurcated in circumstances where the parenting orders sought by each of them, are unlikely represent an insurmountable hurdle to property settlement.
At the commencement of the hearing, counsel was asked to provide a broad overview of the assets of the parties. The husband sets out what he considers are the current assets, at paragraph 22 of his Affidavit filed 20 April 2022. In broad terms, the property of the parties is modest, and on the husband’s assessment, likely to be less than $800,000.
The wife’s counsel was not able to assist as to the wife’s version of the assets of the parties.
Given that the most significant asset comprises of the funds preserved from the sale of the former matrimonial home in Country H, held by the husband in his Bank FF account and by the wife in her Country H solicitor’s trust account, the remaining area of consideration is the value of the husband’s business. The husband considers that his business can only be reflected by consideration of the value of the business assets comprising:
(a)Cash funds in Australia E $107,000;
(b)Motor Vehicle 1 E $40,000;
(c)Company funds held in Country H E $62,000.
The focus would then be upon the value of the husband’s business. It is surprising, that given the significant costs incurred by the parties to date, there appears to have been little, or no detailed consideration, given to the construct of the assets and liabilities of the parties.
It is likely that the parenting proceedings will not be ready for trial until the husband has run the full gambit of criminal proceedings.
The wife’s counsel suggested that the husband’s business interests are likely to be of significant value, although no efforts have been made for a valuation to be undertaken. The proceedings have been adjourned generally to enable the parties and their solicitors, to prepare the proceedings and undertake a consideration of what is required to better establish the asset pool and its value.
I accept that the parties are likely to incur a further $100,000 each before the proceedings are concluded. The difficulty is that the husband has recently been charged with offences pursuant to s 50 of the Criminal Law Consolidation Act 1935 (SA) which relate to an adult maintaining an unlawful sexual relationship with a child.
The husband has also been charged with sexual assault involving the wife. Whilst the charges are resisted by the husband, it is likely that their progress through the State Criminal Court system will not see a resolution until 2024, unless earlier determined.
The costs necessary to resolve the property proceedings should be modest once there is a better understanding as to the likely asset pool.
Simply put, the work has not been done to identify the areas of agreement and disagreement. I suspect that the property issues will be of narrow compass, but until there is a better understanding of the property issues, and the method by which a value of the husband’s business can be either agreed, or ultimately determined, it is premature to consider an application for litigation funding.
Discovery of Bank FF Statements
The order sought by the wife that the husband provide his Bank FF statements for accounts ending …42 and …14 as at 1.00 pm on 8 September 2021, is nonsensical.
If the focus is to establish whether funds have been misappropriated, then I am not able to understand the need for a statement as at a particular date and time.
It is assumed, by reference to the annexures to the wife’s affidavit of 14 April 2022, that there has been discovery of bank statements relevant to the account …42. It may be that more is required. If so, there would be no good reason why the husband should not be required to discover all documents, including bank statements, in respect of an issue in the proceedings.
Country H Financial Documents
The wife apparently received and advice from her Country H solicitor, that as a result of monies being transferred into the husband’s trust account, for, and on behalf of, the wife, she required the husband provide certain documentation as required under Country H financial legislation. There is no explanation of the relevance of the document to the proceedings and in the absence of any clear advice as to the need for the documents, and the consequences of those documents not being provided, I do not propose to make the order as sought.
Accordingly, I propose to dismiss the wife’s Application in a Proceeding.
the response of the husband
Information release
Judge Kelly sought an information release pursuant to the Family Law Information Sharing Co-location Project. The document was received on 29 April 2022, and has been provided to the parties.
On 22 April 2022 Judge Kelly ordered as follows:
(5) The Courts Co-Located SA Police Officer is requested to provide an update Summary Report in relation to both parties.
(6) Upon the information being received liberty to the parties’ legal representatives and the Independent Children’s Lawyer to inspect and copy the information received by SA Police provided no copies are released to the parties AND the parties are at liberty to inspect only the information NOTING the information is confidential and cannot be disclosed to any other person or entity without an Order of this Court AND penalties may apply pursuant to s.121 of the Family Law Act 1975 if the information is printed or published other than as directed.
(Emphasis in original)
As such, whilst the legal representatives and the Independent Children’s Lawyer are able to inspect and copy the information statement, the parties are only able to inspect, and not receive a copy.
The issue is not that the parties should not have a copy of the information statement, but rather that its content is confidential and cannot be disclosed to any other person. I assume that the order was intended to act as an injunction restraining each of the parties from providing the information that could properly be considered as confidential.
Given that the husband only seeks to be at liberty to obtain a copy of the information statement, I do not consider that it has any impact upon the order made by Judge Kelly and accordingly, I propose to order that each of the parties be at liberty to obtain a copy of the information statement.
Implied Undertaking
The more significant issue is in paragraph 3 of the husband’s Response to an Application in a Proceeding, which sets out as follows:
(3) That the husband be at liberty to provide to his criminal lawyer such documents as are filed in these proceedings or produced for the purpose of these proceedings.
At the commencement of the hearing, I indicated that I did not consider I could contemplate making an order in general terms, but rather needed to better understand which documents were sought to be released.
Exhibit “1” in the proceedings sets out a schedule of proposed documents for which leave is sought as follows:
(1)Affidavit of Mr Evert 30 October 2020.
(2)Affidavit of Ms Pascal 7 December 2020.
(3)Notice of Child Abuse Family Violence and Risk – Ms Pascal 7 December 2020
(4)Affidavit of Mr Evert 14 December 2020.
(5)Affidavit of Mr Evert 19 February 2021.
(6)Child Inclusive Memorandum to Court 22 February 2021.
(7)Judgment – Judge Kari 25 February 2021.
(8)Affidavit of Mr Evert 20 May 2021.
(9)Affidavit of Ms MM 18 June 2021.
(10)Affidavit of Mr AA 18 June 2021.
(11)Affidavit of Ms Pascal 18 June 2021.
(12)Affidavit of Ms MM annexing Family Assessment Report of Ms KK 30 March 2022.
(13)SAPOL Information Release 3 May 2022.
The wife’s positon was not to oppose the release of the documents, but rather if they were released, then leave should be given to the wife to be able to produce documents to the Director of Public Prosecution (“the DPP”) in respect of the pending criminal proceedings.
The short summary of the husband’s position is that he considers the documents identified, or at least portions of those documents, to have some relevance to the criminal proceedings and may assist in his defence.
For her part, whilst the wife is the complainant, the DPP is pursuing the prosecution.
The law
Section 121 of the Act provides:
(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, alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceeding;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
Also relevant may be the provisions of s 121(9)(a) of the Act:
(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 any other document for use in connection with those proceedings; or
…
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
I do not necessarily consider that s 121(1) of the Act is applicable to the purpose for which the husband seeks the documents, namely, to assist in the defence of criminal proceedings brought against him.
Oates & Q & Anor (2010) FLC 93-451 considers the application of s 121 of the Act as follows:
106.Section 121 of the Act was considered by the Full Court in Re W: Publication Application (1997) FLC 92-756 in the context of determining whether a judgment of the Court could be provided to child welfare authorities. The Full Court determined that the child representative did not need the leave of the Court to forward a copy of the judgment to relevant welfare authorities as such authorities were not “a section of the public” within the meaning of s 121(1). Fogarty and Baker JJ said this at 84,260:
107.In Oscar & Traynor [2008] FamCAFC 158 the Full Court (May, Thackray and Benjamin JJ) dealt, inter alia, with an appeal from an order that a judgment be provided to the director of a contact centre. The Full Court endorsed the approach of the Court in Re W: Publication Application. Further, the Full Court said that the principle in that case is not restricted to “child welfare authorities”.
In support of the reference to s 121(9)(a), and to a lesser extent (g), in Waldman & Waldman [2013] FCCA 1035, Lapthorne J said at page 10:
18. Section 121 (9)(a) was substituted in 1983 for the former s 121(5)(a) which, in relevant respects, was in almost identical terms. In R v Howe (1978) 19 SASR 303; 4 Fam LR 166 the Court of Criminal Appeal of South Australia held that the former s 121(5)(a) operated so as to exclude from the operation of the former s 121(1) (which was in terms not dissimilar to s 121(1) of the Family Law Act in its present form), a reference by counsel to evidence given in proceedings in the Family Law Court by persons against whom proceedings were subsequently brought in the Criminal Court. I respectfully agree with this decision. In Howe, the Court held that the phrase “person’s concerned in the proceedings” in s 121(5)(a) were apt to include, inter alios, judge, counsel, reporters and any members of the public present in court. Section 121(9)(a) was inserted into the Family Law Act after Howe’s case was decided. I think it is plain that the legislature must have intended that s 121(9)(a) should give the same immunity from prosecution as was given by the almost identical provision which it replaced. It therefore seems to me that if answers given by Mrs Edelsten disclose something that appears in the transcript in the Family Court, she would be protected by s121(9)(a).
Whilst I respectfully agree with the comments by his Honour, I am not persuaded that s 121(9)(a) and (d) have application to the current case. Whilst it is possible and perhaps probable, that in the criminal proceedings there will be reference made to evidence, assertions and/or submissions that arise in the Family Court proceedings, nonetheless, the focus of the Application in a Proceeding is directed to, initially:
(1)Affidavit material filed herein; and
(2)SAPOL Information Release document, Judgment of Judge Kari, Family Assessment Reports prepared by a Court Child Expert and a Child Inclusive Memorandum of the Court.
The implied obligation is considered in Hearne & Street [2008] 235 CLR 125 (“Hearne”) in the following terms:
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 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 implied obligation is expressed at r 6.04 of the Rules, in relation to what use parties can do with a document they inspect and/or copy.
Rule 6.04 of the Rules provides:
(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/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.
In Commissioner of Taxation & Darling (2014) FLC 93-583, the Full Court considered that in the face of an application to release a party from the implied obligation, the most important consideration is whether such release would discourage parties from making full disclosure.
In Hearne the High Court considered that the application of the implied undertaking would include the following:
96.documents inspected after discovery,[2] answers to interrogatories,[3] documents produced on subpoena,[4] documents produced for the purposes of taxation of cost,[5] documents produced pursuant to a direction from an arbitrator, [6] documents seized pursuant to an Anton Piller order,[7] witness statements served pursuant to a judicial direction,[8] and affidavits.[9]
[2] Riddick v Thames Boar Mills Ltd [1977] QB 881; Esso Australian Resources Ltd v Plowman (1995) 183 CLR 10 at 31-33; [1995] HCA 19.
[3] Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510-511; Ainsworth v Hanrahan (1991) 25 NSWLR 155.
[4] Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322.
[5] Bourns Inc v Raychem Corp [1999] 3 All ER 154 at 169-170.
[6] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33, 39, 46-47 and 48.
[7] Cobra Golf Inc v Rata [1996] FSR 819.
[8] Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223; State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 at 229.
[9] Medway v Doublelock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261; Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156.
The extent to which the implied undertaking applies to affidavits (notwithstanding the inclusion of this category of documents by the High Court in Hearne), has been the subject of more recent judicial consideration. In Harman & Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”) Lord Diplock said the following:
308. The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself;
It is an inroad that calls for safeguards against abuse, and these the English legal system provides … through its’ rules about abuse of process and contempt of court.
Accordingly, it is the coercive nature of the obligation imposed by the Court for parties to disclose documents and to make full and frank discovery, that is the foundation of the implied undertaking.
It can be said that a witness statement and an affidavit are not dissimilar in the purpose for which they are intended namely, the presentation of evidence in the case of an affidavit and the intention and/or expectation that the witness statement will be given as evidence in the proceedings.
I consider that the filing of affidavits in interim hearings were pursuant to orders of this court to ensure the matter was prepared and made ready. It is an integral part of the Court process in family law proceedings, that evidence in chief will primarily be given by affidavit and it is a common feature of trial directions, that affidavit evidence of all witnesses upon which a party intends to rely, must be filed in accordance with the direction of the Court.
I find that all categories of documents as set out in Exhibit “1” in the proceedings, being the schedule of proposed documents, to be documents to which the Harman implied undertaking applies.
Accordingly, an application for leave to be released from the implied undertaking must be made. The test as to whether leave should, or should not, be granted has been the subject of significant judicial consideration, however in summary, regard must be had to any injustice caused to a party giving discovery and special circumstances should exist.
In Springfield Nominees Pty Ltd & Bridgelands Ltd (1992) 38 FCR 217 the Court said :
22. It will be recalled that in Crest Lord Oliver spoke of the need for “special circumstances” if leave was to be granted.
Later in the same judgment Wilcox J further commented on the expression “special circumstances”:
26. 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. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant.
The purpose for which the documents are to be used, are in respect of criminal proceedings which involve the mother and a child or children as the alleged victims. It is predominantly her affidavit material and the collateral and associated documents to which leave to be released from the implied undertaking is sought.
In the circumstances of this case, and taking into account the nature of the criminal proceedings in which the parties but in particular the husband now finds himself, I consider there exists special circumstances which would justify release from the implied undertaking.
To a significant degree, no potential prejudice is caused by the release of the husband’s own affidavits, in circumstances where he would be able to relay the contents of those documents (to the extent that they are relevant) to his criminal solicitors.
I do not consider that the Notice of Child Abuse, the Child Inclusive Memorandum and the Family Assessment Report of Ms KK attached to the Affidavit of Ms MM filed 30 March 2022, are documents that are likely to be relevant to the husband’s criminal proceedings in the absence of any submissions that would support such a finding.
At this stage, what is being sought, is that the husband be at liberty to produce to his criminal lawyer such documents as are filed in these proceedings now better identified by reference to Exhibit “1” in the proceedings, being the schedule of proposed documents.
Whilst it is not a matter that I consider need to be considered, it is likely that the affidavits that have been filed in the proceedings and for the purpose of interim hearings, is evidence introduced by the parties, and therefore not covered by the implied undertaking in any event.
Reunification Therapy
The order sought by the husband, that he and the children engage with a therapist to undertake reunification therapy, was not significantly pressed in circumstances where the husband is the subject of serious criminal charges and at this stage, there is an indication that the children have expressed an unwillingness to engage with the husband.
Irrespective of that consideration, the orders sought by the husband for reunification therapy are misguided. There is no evidence that would suggest that the reunification process should be undertaken, the likelihood of it being successful in reuniting the children given the current circumstances, and even the preparedness of any therapist to undertake such a task.
It is entirely possible that the very process of “reunification therapy” may well in and of itself place a child or children at risk. More evidence is required before a decision should be made that would require children, and a party or parties, to embark upon an uncertain and possibly harmful therapeutic process.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 9 August 2022
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