Gerber & Beck
[2023] FedCFamC2F 346
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gerber & Beck [2023] FedCFamC2F 346
File number(s): MLC 13378 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – where the parties are engaged in Family Violence Intervention Order proceedings in the Magistrates’ Court of Victoria – where applicant father is the respondent in those proceedings and respondent mother is the applicant – where applicant father seeks release of documents – where the implied undertaking applies to those documents – found that special circumstances exist which would justify the release from the implied undertaking. Legislation: Family Law Act1975
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 r 6.04
Cases cited: Danks & McCabe [2022] FedCFamC1F 960
Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613.
Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10
Gerber & Beck [2020] FamCA 210
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125 at 154
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Riddick v Thames Board Mills Ltd [1977] QB 881
Springfield Nominees Pty Ltd v Bridgelands Securities (1992) 38 FCR 217
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 24 March 2023 Place: Melbourne Counsel for the Applicant: Ms Borger Solicitor for the Applicant: Kennedy Partners Counsel for the Respondent: Litigant in person ORDERS
MLC 13378 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GERBER
Applicant
AND: MS BECK
Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
30 March 2023
THE COURT ORDERS THAT:
1.The proceedings remain listed for Directions Hearing on 12 April 2023 at 12.00pm.
2.The applicant and his legal advisers, and the respondent, be relieved of the implied undertaking provided by each of them to this Court with respect to the use of the following documents (“the Documents”) produced under compulsion in this proceeding (being MLC13378 of 2018) (“the Proceedings”):
(a)The applicant’s documents:
(i)all Applications including Amended Applications (including Initiating Applications, Applications in a Proceeding and Responses to Applications in a Proceeding filed in the Proceedings);
(ii)any affidavit sworn or affirmed and filed in the Proceedings;
(iii)any Notice of Child Abuse, Family Violence or Risk filed in the proceedings;
(iv)any written submissions and summaries of argument filed in the Proceedings.
(b)The respondent’s documents:
(i)All Responses to Applications, including Amended Responses to Applications and Applications in a Proceeding filed in the Proceedings;
(ii)any affidavit sworn or affirmed and filed in the Proceedings;
(iii)any Notice of Child Abuse, Family Violence or Risk filed in the proceedings;
(iv)any written submissions and summaries of argument filed in the Proceedings.
(c)Other documents:
(i)Any orders and Reasons for Judgment;
3.The relief from the implied undertaking referred to in Order 2 herein be limited to the use of the Documents in the Magistrates’ Court of Victoria proceeding between the parties.
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 Gerber & Beck has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
Through his Amended Application for Final Orders, filed 2 March 2023, the applicant father (Applicant) seeks interlocutory orders granting the parties relief from the obligations contained in the implied undertaking (known as the “Harman undertaking”) in respect of documents filed or produced in the Family Law Act 1975 (Act) proceedings between the parties in this Court.
The Applicant seeks to use the Documents in litigation between the parties in the Magistrates’ Court of Victoria (Magistrates’ Court) in relation to an application for a Family Violence Intervention Order (FVIO) by the respondent mother (Respondent).
The Applicant seeks the following orders:
(1)The applicant and his legal advisers, and the respondent, be relieved of the implied undertaking provided by each of them to this Court with respect to the use of the following documents (the Documents) produced under compulsion in these proceedings (being MLC 13378 of 2018) (the Proceedings):
(a)The applicant’s documents:
(i)all Applications including Amended Applications (including Initiating Applications, Applications in a Proceeding and Responses to Applications in a Proceeding filed in the Proceedings);
(ii)any affidavit sworn or affirmed and filed in the Proceedings;
(iii)any Notice of Child Abuse, Family Violence or Risk filed in the proceedings;
(iv)any written submissions and summaries of argument filed in the Proceedings.
(b)The respondent’s documents:
(i)All Responses to Applications, including Amended Responses to Applications and Applications in a Proceeding filed in the Proceedings;
(ii)any affidavit sworn or affirmed and filed in the Proceedings;
(iii)any Notice of Child Abuse, Family Violence or Risk filed in the proceedings;
(iv)any written submissions and summaries of argument filed in the Proceedings.
(c)Other documents:
(i)Any orders and Reasons for Judgment;
(2)The relief from the implied undertaking referred to in Order 1 herein be limited to the use of the Documents in the Magistrates’ Court of Victoria proceeding between the parties.
The Respondent opposes the orders sought.
MATERIAL RELIED UPON
The Applicant relies upon the following material:
(1)Further amended initiating application filed 2 March 2023;
(2)Affidavit of Mr Gerber filed 2 March 2023;
(3)Outline of Case (interim hearing) filed 22 March 2023;
(4)Affidavit of Mr Gerber filed 2 December 2021; and
(5)Gerber & Beck [2020] FamCA 210
The Respondent did not file any material with respect to the interim defended hearing.
The Respondent ceased to be legally represented on 1 March 2023.
BACKGROUND
The parties were in a 10 year de facto relationship and have two children, twin girls Y and X, born in 2014 and aged 9 years. The parties are Country A citizens and hold permanent residency status in Australia.
Previous proceedings were commenced by the Applicant in the Federal Circuit Court of Australia on 8 May 2019, and were transferred to the Family Court of Australia (2019 Proceedings). In the 2019 Proceedings, the Respondent sought to relocate to Country A with the children. The Respondent’s application was denied and final parenting orders were made by consent on 4 May 2020 (Consent Orders).
The Applicant filed an Application for Final Orders on 2 December 2021 seeking, on an interlocutory basis, to restrain the Respondent from travelling overseas with the children. At that time, the Respondent was seeking to travel overseas on holiday with the children. A notation to the Orders made on 19 May 2022 noted that the Respondent had abandoned her intention to travel.
As referred to above, the Applicant filed an amended Application for Final Orders on 2 March 2023. In that Application, the Applicant sought interlocutory orders that the parties be granted leave to provide documents in these proceedings to the Magistrates’ Court.
Orders made 8 March 2023 listed this matter for an interim defended hearing. Those orders included the notation that:
A.The matter has been listed before a Judge with respect to the parties’ release from their implied or Harman undertakings such that documents from these proceedings may be used in proceedings before the Magistrate’s Court of Victoria, noting:
(a)The decision in Danks & McCabe [2022] FedCFamC1F 960;
(b)The parties consent to the release and/or use of the documents
FAMILY VIOLENCE INTERVENTION ORDERS
In the Applicant’s case outline, he contends that “one or more” intervention orders have been made against the Applicant. An interim Intervention Order was made on 13 November 2018, and a final Intervention Order was made on 2 July 2019. That final Intervention Order was made without admissions and for a period of 12 months.
The Applicant was charged with one count of breaching the interim Intervention Order, which was with respect to an incident that occurred at changeover. In October 2019, that charge was struck out and a Diversion Order made.
On 7 February 2023 the Respondent made a further application to the Magistrates’ Court for a FVIO against the Applicant (Further FVIO). An interim FVIO was made on 13 February 2023. The Applicant denies the allegations and opposes the Further FVIO. The Further FVIO is next listed before the Magistrates’ Court for trial directions on 5 May 2023.
In the Application and Summons for the Further FVIO the Respondent refers to the matters alleged to have occurred in 2022 and 2023, previous intervention orders and breaches of them by the Applicant and includes the following statements:
the respondent [father] has a history of family violence and anger. Despite a previous FVIO this has not stopped;
if I say no to anything he wants or demand regarding access children which is not in line with the court orders, I fear for my well-being and the well-being of my children;
I have put up with the severe behaviour for years; and
the respondent has breached previous intervention orders.
SUBMISSIONS
The Applicant submits that relief from the Harman undertaking to use the Documents is sought for the following reasons:
(1)To demonstrate the mothers right to seek action pursuant to the final parenting orders with respect to allegations of denigration, and subsequent failure to act on that right.
(2)To demonstrate that the mother has previously been found by this Court to have made false statements to government bodies.
(3)To demonstrate the mother’s prior use of family violence intervention orders as justification to unilaterally reduce the children’s time with the father, or to insist that time be supervised.
(4)To demonstrate the mother’s prior selective and inconsistent statements regarding the father’s alleged behaviour.
(5)To adduce evidence of prior findings of credit with respect to the parties, findings that the mother is not to be trusted in relation to the children’s relationship with the father, and findings that the mother is prone to exaggeration.
(6)To adduce evidence of the mother’s prior statements, expert evidence and findings regarding her mental health.
The Respondent submits that the Documents are not relevant to the Further FVIO. The Respondent submits that the events relied upon in relation to the Further FVIO are recent events and that the Documents relate to matters which were concluded with the making of the Consent Orders.
RELEVANT LEGAL PRINCIPLES
The relevant legal principles are set out in Danks & McCabe [2022] FedCFamC1F 960 as follows:
In Hearne v Street (2008) 235 CLR 125 at 154 the High Court said the following in relation to the nature of the “implied undertaking”, arising out of the Harman decision:
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.
The rationale of the principle is the public interest in protecting the privacy of the person compelled to produce documents via a court’s coercive powers. Parties are ‘privileged’ to be in a possession of another litigant’s documents.[1]
[1] Harman v Secretary of State for Home Department [1983] 1 AC 280, 320.
The impact of breaching the implied undertaking can be serious. A party who attempts to use material to which the undertaking attaches without first obtaining the leave of a court will be guilty of contempt. A proceeding commenced on the basis of information obtained in breach of the undertaking is liable to be struck out.[2] An injunction may also be issued to restrain the use of documents in breach of the implied undertaking.[3]
[2] Riddick v Thames Board Mills Ltd [1977] QB 881.
[3] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613.
There are exceptions to the ‘rule’ including where the documents evidence a fraud or a crime and where it is in the public interest.[4] Another exception is where the document is read in open court or formally entered into evidence.[5] This is consistent with the principle of open courts. Some courts have express rules governing the undertaking. For the Court, the rule is partially codified in r 6.04 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth). That rule is as follows:
[4] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613.
[5] Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10 at [32].
(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's 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.
The relevant test for leave is the establishment of ‘special circumstances’. The leading authority on the subject is Springfield Nominees Pty Ltd v Bridgelands Securities (1992) 38 FCR 217 at [225] in which Wilcox J held:
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. But plainly they include the nature of the document, the circumstances under which it 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 for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
The discretion is a broad one and all the circumstances of the case must be examined.[6]
[6] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31].
LEAVE FROM THE IMPLIED UNDERTAKING
Allegations of family violence by the Applicant against the Respondent, including allegations of verbal and physical family violence and allegations of surveillance, have formed a not insignificant part of the proceedings in this Court. Such allegations were before the Court prior to the Consent Orders being made and have continued to be included in material filed by the Respondent since that date. Certain findings were made in relation to those matters in the Reasons for Judgment in the 2019 Proceedings. This is also not the first FVIO sought by the Respondent against the Applicant and that matter was also before the Court in the previous proceedings. There is therefore not insignificant commonality between the proceedings in this Court and those in the Magistrates’ Court. The parties to each of the proceedings were and are the Applicant and the Respondent. The Documents were created for the purposes of litigation between the parties. They include documents sworn by the Respondent and which she relied upon, and intends to rely upon, before the Court. I therefore consider that those documents and the historical context in which allegations of family violence have been made are relevant to the question of the Respondent’s credit and, consequently, the ability of the Applicant to properly defend the Further FVIO. They also include documents in respect of which orders were made in the proceeding by way of directions and case management and orders as to parenting. I accept, as submitted by Counsel for the Applicant, that those documents may be relevant to show a course of non-compliance and delay by the Respondent and to establish spend time and parenting arrangements, should those matters be in dispute in the Further FVIO which appears may be the case from the Application and Summons. In light of the above matters, I consider that the Documents are likely to make a contribution to achieving justice in the Further FVIO. However, whether the Documents are relevant and/or admissible is, in my view, a matter for the Magistrates’ Court.
No submissions were made by either party as to privacy or confidentiality or commercial sensitivity in respect of the Documents.
I reject the submission of the Respondent that the Documents are not relevant to the Further FVIO as that matter only relates to recent events and prior matters were finalised with the Consent Orders. Firstly, it is clear from the express terms of the Application and Summons, as set out above, that the matter before the Magistrates’ Court is not necessarily so limited. Secondly, and in any event, the scope of the evidence which may be given orally by the Respondent in the Magistrates’ Court is not necessarily limited to that which is contained in the Application and Summons for the Further FVIO. Thirdly, material filed in this Court by the Respondent since the Consent Orders include allegations of family violence, including some of the allegations expressly contained in the Application and Summons for the Further FVIO. Fourthly, I consider that the context in which allegations of family violence have historically been made may be relevant to the matters before the Magistrates’ Court.
In light of the above matters, I consider that special circumstances exist which justify a release from the implied undertaking in respect of the Documents for use by the parties in the Further FVIO.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 30 March 2023
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