KNOX & KNOX

[2015] FCCA 752

FEDERAL CIRCUIT COURT OF AUSTRALIA

KNOX & KNOX [2015] FCCA 752

Catchwords:
FAMILY LAW – Application in a Case – criminal proceedings – release of material to DPP and County Court – whether leave should be granted – whether special circumstances – whether injustice – leave granted.

Legislation:  
Family Law Act 1975, s.121(9)(a)

Zarins & Mylne (No.3) [2013] FamCA 737

Applicant: MR KNOX

Respondent: MS KNOX

File Number: MLC 2336 of 2013

Judgment of: Judge Jones

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Dandenong

Delivered on: 19 March 2015

REPRESENTATION

Counsel for the Applicant: Mr Moisidis

Solicitors for the Applicant: Roman Lawyers

Counsel for the Respondent: Ms Jeffries

Solicitors for the Respondent: Dandenong Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Hession

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. The husband be granted leave to provide copies of the following affidavits excluding annexures thereto to the Director of Public Prosecutions and to the County Court of Victoria:

   (a)affidavits sworn by MS KNOX on 9 May 2013, 7 June 201, 31 July 2013, 16 May 2014 and 27 May 2014; and

   (b)affidavits sworn by MR KNOX on 27 March 2013, 5 June 2013, 28 March 2014, 26 May 2014, 2 March 2015 and 12 March 2015.

2. Costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Knox & Knox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DANDENONG

MLC 2336 of 2013

MR KNOX

Applicant

And

MS KNOX

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application by the husband, who is an applicant in these proceedings.  They relate to children’s matters.  The Application in a Case was filed by the husband on 13 March 2015, and there was a request that this be dealt with as an abridged matter.  It is not necessary to go into any detail in relation to the children and the parents.  I will provide some background in relation to the application.

2. The Court directed that, the general orders sought by the husband in his Application in a Case be particularised. The order before the Court, which has been provided to the wife’s legal representative and the Independent Children’s Lawyer, is, in essence, that the husband be granted leave to provide copies of various affidavits, excluding annexures thereto, to the Director of Public Prosecutions and the County Court of Victoria.  The affidavits listed are affidavits which were sworn by the wife, Ms Knox, and affidavits sworn by the applicant husband, Mr Knox.  The dates of the affidavits sworn are particularised, and there is an application for costs reserved, although that was not dealt with in any way today.

3. The Independent Children’s Lawyer supported the proposed order.  The wife opposed the proposed orders, and her opposition was based on the fact that it is material about children, and of course it is.  These are parenting proceedings.  But I am satisfied that there are special features, and given whom the documents are to be released to, the children are not at risk of this material being exposed at large and them being dealt with in a way that is not in their best interests.

4. Counsel for the husband, Mr Moisidis, handed to the Court at the last Court return date a decision of Berman J of the Family Court in Zarins & Mylne(No.3) (2013) FamCA 737 dated 26 September 2013, in which his Honour held that leave was required from the Court for documents, including affidavit material, which are part of parenting proceedings or, indeed, property proceedings to be released to other Courts.

5. In Zarins & Mylne, there were criminal proceedings on foot in the Magistrates Court. The mother had in the parenting proceedings before the Family Court, conceded that she had made false and misleading representations. That was considered by Berman J to be a special feature. His Honour helpfully traversed various authorities in relation to his decision that leave would be required for the material to be provided to a Court. What his Honour held, was that the exception in section 121(9)(a) did not apply to these documents so that leave of this Court was required for the release of affidavit material.

6. The particular parts of his decision which I will refer to commence at paragraph 35 where his Honour says:

   “Accordingly, an application for leave to be released from the implied undertaking”

   set out in Harman –

   “must be made.  The test is to whether leave should or should not be granted has been the subject of significant judicial consideration, but in summary, regard must be had to any injustice caused to a party giving discovery, and special circumstances should exist.  In Springfield Nominees, the Court said at paragraph 22, “It will be recalled that in Crest, Lord Oliver spoke of the need for ‘special circumstances’ if leave was to be granted.”

   36.  Later in the same judgment, Wilcox J further commented on the expression “special circumstances”:  “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.”

7. Mr Moisidis for the Applicant says that the special circumstances arising from the background to this matter where proceedings were initiated by the husband in relation to parenting proceedings on 28 March 2013.  I have ascertained at the last Court date that the wife made various reports in around April 2013 to the police and that charges were laid by the police against the Applicant husband in October 2013, and he is charged with many counts, I am informed, of rape, reckless conduct causing injury and threats to kill. 

8. Mr Moisidis has, from that, identified the following special features:  firstly, that, the trial in the County Court is to commence on 11 May 2015, with a last directions hearing to occur at the end of next week.  The special circumstances identified by Mr Moisidis are, firstly, that clearly the liberty of the accused, the husband, the applicant in these proceedings, is at stake.  If he is convicted, then a sentence of imprisonment will, no doubt, surely follow. 

9. The second special feature is that in criminal proceedings, motive is clearly relevant, and in this matter, Mr Moisidis says, and I concur, having read the affidavit material (not so much as to motive) but the affidavit material deposed by both parties reveals a very high level of conflict between them in relation to the religious upbringing of the children.  That is almost the crux of the conflict between the parties, and Mr Moisidis says that in the wife’s affidavit material, she makes it very clear that she wants her children to be brought up in the way that she sees fit – and that is on the basis of the (omitted) religion – and that she deposes that the children would be best served with the husband not being part of their lives.  I am not making any findings about that.  I am simply reiterating what is apparent in the material.  I think the wife has been quite clear about that.  She does not see a role for the husband in the children’s lives because of this very significant underlying conflict between them which just simply cannot be resolved because they have two very opposing religious viewpoints.

10. The third special feature identified by Mr Moisidis is that the Court has been asked to grant leave to release the documents to the DPP and the County Court.  The Count Court is, of course, a superior Court, and there will be, therefore, considerable oversight about the way in which these documents are to be treated preceding the trial and during the trial, and I agree with that. 

11. I am satisfied in the circumstances, therefore, that there are special features in this case and that, therefore, I should grant leave.  I am further satisfied that there is no prejudice to the respondent wife.  She has deposed to this material, she does not resile from it, and I can see no basis on which it would cause her prejudice, particularly given the institutions to which the documents are to be released.

12. Consequently, I would grant leave to release the material.

13. Consequently, I will make an order in terms of the minute of proposed orders that have been sought by Mr Moisidis, save to say I am not going to make an order for costs because at this stage, there is no basis on which I should make that order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date:  8 April 2015