Gapp & Waldren
[2023] FedCFamC2F 1688
•27 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gapp & Waldren [2023] FedCFamC2F 1688
File number(s): MLC 2711 of 2013 Judgment of: JUDGE J YOUNG Date of judgment: 27 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – where the father sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – where the father seeks to use the documents in aid of his defence in criminal proceedings in Court where he is facing criminal charges – leave granted to use certain documents from the parties family law proceedings in Court proceedings. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33(2), 10.13, 15.06(1) Cases cited: Harman v Secretary of State for the HomeDepartment [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Pace & Halkias [2021] FamCAFC 81
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 27 November 2023 Place: Melbourne Counsel for the Applicant: Mr Tovey Solicitor for the Applicant: Mitchell Family Law Counsel for the Respondent: Did not participate ORDERS
MLC 2711 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAPP
Applicant
AND: MS WALDREN
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant father have leave to provide the following documents to Court in criminal proceedings pending in the Court against the applicant (case number …):
(a)Affidavit of Mr Gapp dated 6 August 2018;
(b)Affidavit of Ms B filed 17 August 2018;
(c)Child Dispute Conference Memorandum to Court of Family Consultant C dated 17 May 2018;
(d)Affidavit of Ms D, E Family Services, filed 16 May 2018; and
(e)Affidavit of Ms D, E Family Services, filed 20 August 2018 (‘documents’).
2.The use of the documents identified in Order 1 is limited to provision of the documents:
(a)In the above identified proceedings and any superior court to which these proceedings may be referred; and
(b)To any practitioner/s assisting or advising the Applicant in relation to those proceedings.
3.Pursuant to r 15.06(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Rules) all times be abridged.
4.The Applicant’s solicitor is to serve on the Respondent forthwith a sealed copy of these Orders, together with a copy of r 10.13 of the Rules by:
(a)Sending a copy of these Orders by pre-paid registered post to the Respondent’s residential address at F Street, Suburb G; and
(b)Sending a copy of these Orders to the Respondent’s last known email address.
AND THE COURT NOTES THAT:
A.The matter was called at 10.03am, there was no appearance by or for the Respondent and the matter proceeded undefended pursuant to r 1.33(2) of the Rules.
B.The Respondent has liberty to apply to set aside these Orders pursuant to r 10.13 of the Rules provided that:
(a)she makes such an application within 28 days of service upon her of these Orders; and
(b)she files an affidavit setting out the basis of the application and explaining her non-attendance at Court today.
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).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE J YOUNG:
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
CURRENT PROCEEDINGS
Before the Court is an Application of the father, who was the respondent in parenting proceedings between the parties. The father seeks orders on an urgent basis for leave to produce the following documents in criminal proceedings in Court number …, which is next listed for a contested mention in early 2024:
(1)Affidavit of Mr Gapp dated 6 August 2018;
(2)Affidavit of Ms B filed 17 August 2018;
(3)Child Dispute Conference Memorandums to Court of Family Consultant C dated 15 June 2016 and 17 May 2018;
(4)Affidavits of Ms D, E Family Services, filed 16 May 2018 and 20 August 2018; and
(5)Affidavit of Ms H filed 20 September 2016 (‘Documents’).
The mother did not file any material in response to the Application nor did she attend the hearing.
Undefended hearing
The father filed an affidavit of service sworn by Mr J on 20 November 2023. The affidavit deposed to the documents relating to the proceeding being served on the mother by hand on 18 November 2023. It deposes to the person upon whom the documents were served confirming her name as that of the mother but refusing to acknowledge service. An email was also provided to the Court sent to the mother’s last known email address on 17 November 2023 confirming the matter was listed for hearing today and advising her of the need to attend. Counsel for the father provided the mother’s mobile telephone number on the morning of the hearing and the Court attempted to contact the mother on that number at 10.05am. That call was not answered. In all of those circumstances, I am satisfied the mother was on notice of the proceedings and that it was appropriate to proceed in her absence.
Pursuant to rule 15.06(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Rules) the father seeks abridgment of all times necessary to allow this matter to be listed on an urgent basis. I am satisfied it is appropriate in the circumstances that such an order be made.
Father’s submissions
The father’s application is supported by an affidavit filed on 17 November and an affidavit by the father’s solicitor, Mr Pica, also filed on 17 November 2023. In his affidavit, Mr Pica deposes that in mid-2023, the applicant was charged with offences in which X, one of the two children of the marriage, is the complainant. The father has been charged with one charge of recklessly causing injury and, in the alternative, unlawful assault. The police charges concern an allegation that on or about late 2022, while the children were staying with the father, the father and X became involved in an argument after X had become angry about a video game. The allegation is the father grabbed X by the collar and arm, causing a bruise, before pushing or moving him onto furniture, and that during that movement X’s leg impacted a table, resulting in a further bruise. X and his sister Y have made statements to police about the incident. The criminal proceedings, as noted above, are next listed in early 2022 for contested mention. It is expected on that date that, in the absence of charges being withdrawn, the matter may be listed for final hearing.
The father deposes in his affidavit to his agreement with the matters referred to in Mr Pica’s affidavit insofar as they are within his knowledge. The father contends that the Documents sought demonstrate that there were numerous suggestions by various practitioners and court-appointed experts that the mother is an alienating mother who consistently accused the father of family violence despite none of those claims being substantiated. The father also contends that the Documents sought suggest that the mother manipulated the children to ostracise the father, including numerous examples of the mother coaching and encouraging the children to align with her and support her negative view of the father. The father further contends that this manifested in the children variously stating that past claims they had made against the father were not true, that they did not remember such events occurring and/or that they had been helped to remember them by the mother. In essence, the father contends that the Documents demonstrate a systematic process of allegations against the father being either concocted or benign events being significantly exaggerated and then being used against the father.
RELEVANT LEGAL PRINCIPLES
The nature of the father’s application is to be released from the implied undertaking obligation that arises from a line of cases following the decision of Harman v Secretary of State for the HomeDepartment [1983] 1 AC 280. This is usually referred to as the implied Harman undertaking or the Harman obligation. The scope of the implied Harman undertaking was described by the High Court in the case of Hearne v Street (2008) 235 CLR 125 at [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 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 or to which this principle applies include: documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes 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.
The Harman obligation applies to documents a party is compelled to produce which have not yet been received into evidence. I am satisfied, and it was submitted to me, that the Documents the subject of this application are subject to the Harman obligation.
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield), Wilcox J confirmed special circumstances are required for leave to be given and commented on this at 225:
… 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. It is neither possible nor desirable to propound an exhaustive list of those factors.
The non-exhaustive considerations relevant to the proper exercise of the Court’s discretion include, as set out in Springfield at 225:
(a)the nature of the document;
(b)the circumstances under which it came into existence;
(c)the attitude of the author of the document;
(d)any prejudice to the author;
(e)whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(f)the nature of the information in the document, in particular, whether it contains personal data or commercially sensitive information;
(g)the circumstances in which the document came into the hands of the applicant for leave; and
(h)perhaps most importantly of all, the likely contribution of the document to achieving justice.
In relation to parenting matters, in respect of privacy of the children and parties, the Full Court observed in Pace & Halkias [2021] FamCAFC 81 at [31]:
There is a statutory presumption in favour of the privacy of persons involved in family law litigation that may be particularly significant in relation to children who are not active litigants. Although not a parenting order, a decision to grant leave for documents to be filed should, where appropriate, take into account the best interests of the children.
CONSIDERATION
Given the nature of the allegations made in this Court, I am satisfied that there is a significant overlap in the subject matter between the two proceedings. I am not satisfied there is prejudice to the parties in producing certain documents to the Court. I do, however, hold concerns about the Child Dispute Conference Memorandum to the Court made by the family consultant dated 15 June 2016 and the affidavit of Ms H dated 20 September 2016. Those documents are now some six years old, and the age of the children, in particular, X, at the time at which those documents were created cause me concern. I have declined to make an order releasing the father from the Harman obligation and granting leave to produce those documents to the Court.
In relation to the other documents he seeks to rely upon, there is a commonality of subject matter between the two sets of proceedings, being allegations of family violence and ongoing risk to child. Whilst the documents contain information personal to the parties and the child, I have the view that it would assist the judge to determine the issues in dispute in those proceedings. It may assist the judge to understand and assess the dynamics between the father, mother and children and the context and history in which the current allegations have arisen. There are measures in the Court, to the extent required, to ensure the welfare of the children in giving evidence in those proceedings, and the father intends to defend the charges and is entitled to a full and proper defence of the criminal charges laid against him.
I am satisfied the provision of the Documents, other than the documents created in 2016, would likely contribute towards achieving justice in the criminal proceedings against the father in the Court. There is public interest in ensuring that criminal justice is administered to ensure that innocent persons are not convicted. For the mother’s benefit in particular, it is, of course, a matter for the judge as to what use the Court will make of those documents and what weight the judge may or may not attach to the contents of those documents. Therefore, the fact that I am making an order giving the father leave to rely upon those documents in the Court for the purposes of the criminal proceedings does not necessarily mean that the judge will use the documents or put any weight on them. That will be a matter for that Court.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge J Young. Associate:
Dated: 27 November 2023
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