HALSTRON & HALSTRON

[2018] FamCA 887

FAMILY COURT OF AUSTRALIA

HALSTRON & HALSTRON [2018] FamCA 887

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision – where the wife seeks leave for an advisor to view documents and correspondence related to the proceeding – where the husband questions the character, qualifications and appropriateness of the advisor – where the husband issues subpoenas relating to the advisor – where the wife objects to the subpoenas issued – where the husband contends that the wife, in permitting her advisor to view the documents, breaches the implied obligation and the Rules – where the advisor’s inspection of documents fall within Rule 13.07A – where the choice of advisor is not capable of objection on the basis of asserted defects of character, capacity, qualifications or mental illness – where the Registrar upholds the objections – where the Judge upholds the objections.

Family Law Rules 2004 13.07A.

Hearne v Street (2008) 235 CLR 125.

APPLICANT: Mr Halstron

RESPONDENT: Ms Halstron

FILE NUMBER: SYC 2788 of 2016

DATE DELIVERED: 2 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lander & Rogers

SOLICITOR FOR THE RESPONDENT: Moisson Lawyers

ORDERS

IT IS ORDERED

1. That the application of the husband filed 26 September 2018 to review the decision of Registrar Hayward is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2788 of 2016

Mr Halstron

Applicant

And

Ms Halstron

Respondent

REASONS FOR JUDGMENT

1. Mr Halstron (“the husband”) has issued five subpoenas which relate to “the character, qualifications and appropriateness” of a person nominated by Ms Halstron (“the wife”) as her advisor.

2. Objections were lodged in relation to each subpoena and a Registrar upheld those objections.

3. The husband has filed an Application in a Case seeking to review the decision of the Registrar.

4. Both parties made written submissions to the Registrar. I am invited to determine the matter in chambers having regard to those written submissions.

5. The husband relies on Rule 13.07A of the Family Law Rules 2004 (“the Rules”) which provides:

   13.07A Use of documents

   A person who inspects or copies a document, in relation to a case, under these Rules or an order:

   (a)must use the document for the purpose of the case 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.

6. The wife has made an application to the Court, inter alia, for permission to permit her advisor to view “the contents of correspondence and documents in these proceedings” for the purpose of giving her advice.

7. The husband contends that the wife’s application implicitly seeks relief from the “Harman undertaking” which I infer is a reference to the implied undertaking in relation to material produced on subpoena.  

8. The scope of the implied undertaking was described by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 (at 154) 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]

9. It is not in dispute that the implied undertaking also binds third parties who come into possession of the relevant documents.

10. The husband contends that the wife, in permitting her advisor to view the documents, both the documents produced on subpoena and the documents generated by the respective lawyers in the course of the proceedings, breaches the implied obligation and, unless leave is granted, breaches the Rules.

11. Further, the husband contends that the wife’s advisor is not an appropriate person to view the documents by reason of his “mental health, his lack of impartiality, his animosity towards the Husband, his capacity and qualification to assist the Wife and his potential conflict of interest in acting as an advisor to the Wife.”

12. Dealing firstly with the implied obligation, I do not consider that allowing an advisor to inspect documents for the purpose of obtaining advice in the proceedings constitutes “use” of the documents for a purpose other than that for which the documents were prepared or produced.

13. In relation to the husband’s assertion that to allow the wife’s advisor access to documents would be a breach of Rule 13.07A, I do not accept that contention.

14. In the event that the wife’s advisor were to consider the contents of documents either prepared or produced in the course of the proceedings, that would constitute a use of the documents “for the purpose of the case only”.

15. It is common in proceedings of a financial nature for parties to seek advice from persons other than their lawyers, such as accountants, financial advisors and the like, who are then bound by the same obligations of confidentiality as are the parties.

16. The choice of advisor is a matter for the party and not capable of objection on the basis of asserted defects of character, capacity, qualifications or mental illness.

17. The subpoenas issued by the husband can serve no useful forensic purpose and I uphold the objections to each subpoena.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2018.

Associate: 

Date:  2/11/2018