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…
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- Gapp & Waldren [2023] FedCFamC2F 1688
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- [2023] FedCFamC2F 1688
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CaseChat Overview and Summary
The court considered the application under the Family Law Act 1975, which includes provisions about the use of documents in family law proceedings in other legal matters. The court noted the potential conflict between the need for confidentiality in family law matters and the requirements of a fair trial in criminal proceedings. The judge acknowledged the importance of balancing these interests and recognised that in some circumstances, the use of family law documents in criminal proceedings may be justified. The court granted the application but imposed conditions on the use of the documents, limiting their disclosure to the specific criminal proceedings and any superior court to which those proceedings may be referred. The court also required that the documents could only be used by practitioners assisting or advising Mr. Gapp in relation to those proceedings.
The court granted Mr. Gapp leave to use the specified documents in the criminal proceedings, subject to the conditions outlined in the order. The documents that Mr. Gapp was permitted to use included affidavits and other documents filed during the family law proceedings. The court further ordered that all time constraints be abridged and required Mr. Gapp's solicitor to serve a copy of the orders on Ms. Waldren. The respondent was given the option to apply to set aside the orders if she could demonstrate a valid reason for her non-attendance and file an affidavit explaining her position. The form of the order was subject to review to correct any minor errors or to record any variations.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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