Featon & Featon

[2020] FamCA 1061

FAMILY COURT OF AUSTRALIA

Featon & Featon [2020] FamCA 1061

File number(s):	SYC 2341 of 2018
Judgment of:	REES J
Date of judgment:	11 December 2020
Catchwords:	FAMILY LAW – HARMAN UNDERTAKING – Where the husband is defending criminal charges before the District Court – Orders for the husband to be released from the Harman undertaking – Orders allowing the husband to use, for the purpose of criminal proceedings against the husband, the affidavits sworn by the wife and subpoena material.
Cases cited:	Hearne v Street (2008) 235 CLR 125
Number of paragraphs:	12
Date of hearing:	11 December 2020
Place:	Sydney
Counsel for the Applicant:	Ms Lewer
Solicitor for the Applicant:	Parker Law
Counsel for the Respondent:	Mr Scarlett
Solicitor for the Respondent:	Andreyev Lawyers
Solicitor for the Independent Children's Lawyer:	JLM Family Lawyers Pty Ltd

ORDERS

SYC 2341 of 2018

BETWEEN:

MR FEATON

Applicant

AND:

MS FEATON

Respondent

JLM FAMILY LAWYERS PTY LTD

Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	11 DECEMBER 2020

THE COURT ORDERS:

1.That the husband have leave to use, for the purpose of criminal proceedings against the husband, the affidavits sworn by the wife on 15 June 2018, 30 November 2018, 28 December 2018, 26 January 2019 and 26 February 2019.

2.That the husband have leave to use, for the purpose of criminal proceedings against the husband, documents or information disclosed in material produced on subpoena by H Hospital, Suburb J, B Medical Centre, Dr F, C Medical Centre, Dr G, Dr D and the Department of Family & Community Services.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Featon & Featon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. There are substantive proceedings relating to parenting on foot in the Family Court between Mr Featon (“the father”) and Ms Featon (“the mother”).

2. The father has been charged with three counts of sexual and indecent offending in relation to the parties’ female child who was three years old at the time of the alleged offences.

3. The mother will be a witness for the prosecution in the criminal proceedings. Her evidence will deal, inter alia, with alleged disclosures made to her by the child and observations of the child’s behaviour and her interactions with the father.

4. In the Family Law proceedings, the mother has filed a number of affidavits and subpoenas have been issued to medical practitioners, clinics and counselling organisations for the production of their records of attendances with the mother.

5. By an application in a case the husband seeks to be relieved on the implied undertaking, commonly referred to as the Harman undertaking, in relation to affidavits sworn by the mother and also in relation to documents produced in answer to the subpoenas referred to above.

6. The scope of the implied undertaking was described by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 by Hayne, Heydon and Crennan JJ in the following broad 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 types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.

   (Emphasis added; footnotes omitted)

7. The application is opposed by the mother.

8. In a case outline document prepared by counsel for the mother, the basis of the mother’s objection was stated to be relevance and the mother’s assertion that the father is “merely embarking on a fishing expedition”.

9. As to the latter, it is difficult, if not impossible, to understand how this could be a “fishing expedition” within the common understanding of that expression when the entirety of the contents of all of the documents which he seeks to use is already known to him.

10. As to relevance, that is ultimately a matter for the trial judge in the District Court as to particular documents, but it is prima facie evident that, where the mother’s evidence will be challenged in the criminal proceedings, evidence of representations she has made to professionals which relates to the subject matter of the charges, or other matters, could be relevant.

11. In so far as earlier authorities refer to the need for special circumstances to exist before a party will be released from the obligation, I consider that the fact that the father is engaged in his defence against serious criminal charges and that the person who swore the affidavits and in relation to whose medical consultations the documents have been subpoenaed is an important witness in the proceedings constitutes special circumstances.

12. The father will released from the undertaking.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:       

Dated:       11 December 2020