Patchell & Maddern
[2024] FedCFamC2F 325
•21 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patchell & Maddern [2024] FedCFamC2F 325
File number(s): DGC 2678 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 February 2024 Catchwords: FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation Legislation: Family Law Act 1975 (Cth) section 90SF(3), section 90SM(4)(e), section 117(1), section 117(2)(A) and section 121.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 6.04 and rule 15.13
Cases cited: Commissioner of Taxation v Darling and Anor (2014) FLC 93-583
Harman v Secretary of State for the Home Department [1983] 1 AC 2805
Hearne v Street [2008] 235 CLR 12
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720
Division: Division 2 Family Law Number of paragraphs: 50 Date of last submission/s: 21 February 2024 Date of hearing: 21 February 2024 Place: Melbourne Counsel for the Applicant: Mr Hale Solicitor for the Applicant: Galbally and O’Bryan Solicitor for the Applicant: Webb Korfiatis Family Law ORDERS
DGC 2678 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PATCHELL
Applicant
AND: MS MADDERN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Subject to any direction, order, or request of the presiding Judge of the Country Court, the Applicant de facto Wife, MS PATCHELL born in 1980 (‘the Wife’), in regard to the following documents;
(a)Affidavit of Mr Maddern filed 8 February 2018; and
(b)Affidavit of Mr Maddern filed 25 October 2023; and
(c)Financial statement of Mr Maddern filed 8 February 2018; and
(d)Financial Statement of Mr Maddern filed 25 October 2023;
be and is released from the obligation (commonly known as the implied obligation) as described in Hearne & Street (2008) 235 CLR 125 96 and Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 at and only for the purpose of the hearing of the Plea Hearing in Court in early 2024 (or such later date the hearing may take place).
2.For the avoidance of doubt the Wife be and is permitted to use the documents described above for the purpose of the plea hearing described above as her lawyers see fit.
3.The costs of the Respondent de facto Husband MR MADDERN born in 1976 (‘the Husband’) of and incidental to the application in a case served yesterday (20 February 2024) and listed and heard this day, fixed in the sum of $4321 (item 3 and 13(c) of Schedule 1 of Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021), be and are reserved to the Trial Judge.
4.The transcript of the application for, and opposition to, an order for costs of this day be provided to the parties.
5.The application in proceeding filed by the Wife on 20 February 2024 be and is otherwise dismissed.
AND THE COURT NOTES THAT:
A.These proceedings are fixed for Mention on 19 March 2024 before a Judicial Registrar.
B.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.
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).
REASONS FOR EX TEMPORE JUDGMENT
Introduction
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The Application in a Proceeding filed 20 February 2024 at 9.49am by the Applicant de facto Wife, and served upon the Respondent de facto Husband’s solicitor at 4.01pm that same day comes before me this day.
Background
It is common ground that the applicant de facto Wife is 43 years of age and the respondent de facto Husband 47 years of age. The parties commenced cohabitation in a de facto relationship in 2003 and finally separated in April of 2016. I am told that there is a dispute between the parties as to whether there was an earlier separation from mid-2011 to early 2014. That dispute is not germane to the controversy this day.
The parties have one child, X, born in 2015, who is now eight. X was a baby at the parties’ final separation. It appears common ground that X has had no contact with his father since mid-2019. It is apparent that the father complains about that and I expect the mother will attempt to justify that in due course.
That dispute has proceeded in this Court to the extent that there is a child inclusive report dealing with the child’s welfare for the purpose of determining the immediate crisis. The matter will return for mention before a Judicial Registrar, who can be regarded as the case management Judicial Registrar, on 19 March 2024.
Application in a Proceeding: relief from implied obligation.
The application sought the following orders.
1.That the Applicant de facto Wife be granted leave to rely upon the Respondent de facto Husband’s court documents filed in these proceedings, namely:
a)Affidavit, together with all annexures to that Affidavit, sworn 6/2/2018 and filed on 8/2/2018;
b)Affidavit, together with all annexures to that Affidavit, sworn and filed on 25/10/2023;
c) Financial Statement sworn on 6/2/2018 and filed on 8/2/2018; and
d) Financial Statement sworn and filed on 25/10/2023,
at the Contested Plea Hearing in Court No. […] scheduled [in early] 2024, in which she is a party.
That application was supported by an affidavit filed (yesterday), but also not served until 4.01 pm (yesterday evening).
Because of the urgency of the matter, the Court made the matter returnable this day. It is not disputed that the applicant in these proceedings, will be before Court in another case for plea and sentence. The lateness of the application and the short notice to the husband is regrettable and this decision in no way should be seen to be blessing or condoning that short service.
The application is made in the context of what is known as the implied obligation which is recited in the matter of Commissioner of Taxation v Darling and Anor (2014) FLC 93-583 (‘Darling’) at paragraphs [4] and [5] as follows:
4.The proposed appeal concerns the scope of an obligation articulated in these terms by the High Court in 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 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.
5.The plurality in Hearne v Street explained, at [97] and [102], that while the obligation has been described as an “implied undertaking”, the use of the word “undertaking” is misleading, since the obligation is one of substantive law arising from the circumstances in which the material was generated.
First proceedings
The proceedings in this Court were originally issued on 24 August 2017, but on 11 November 2019, were struck out by a judge of this Court with a right of reinstatement in the circumstances that it was apparent that the de facto Wife may be charged with criminal offending that would be relevant to the disposition of the applications in this Court. The proceedings were either reinstated or recommenced on 26 September 2023.
Hearing today
On the hearing before me, despite the very short notice and the other obligations that he had this day, the solicitor for the respondent husband was able to advance his client’s objection to the application in efficient and robust terms. I am grateful to the solicitor for this.
The affidavit in support of the Application in a Proceeding did not contain enough relevant information about the de facto Wife’s case, so it was necessary that I obtain further details. I pressed counsel for the applicant, who fortunately, was well-armed with sufficient instructions to be able to deal with my questions.
Court plea
It appears undisputed that the anticipated criminal charges (anticipated when Judge struck out the proceeding with a right of reinstatement back in late 2019) came to pass in about 2020. The progression of the matter through what I expect would have been between two courts is not known.
One of the matters agitated today is the concern on the de facto Husband’s solicitor’s part of a lack of proper disclosure of the circumstances around those charges to the de facto Husband in these proceedings. I make no finding in regard to that, but do note that both parties have a continuing obligation to provide the Court and the other party with all relevant facts and information.
The matter in Court became listed as a plea by the applicant de facto Wife, in early 2023, when it was adjourned to mid-2023, then onto late 2023 and then adjourned again to early 2023. I am told that there is a presentment which the respondent husband has not been privy to that alleges between 2014 and 2016, the sum of $690,000 was taken or stolen by the de facto Wife. I am told that there are, or have been at one point, five charges against the de facto Wife.
The de facto Husband is not without any information about the criminal charges, as the de facto Wife’s lawyers provided the de facto Husband’s lawyers with a copy of the hand-up brief in late 2023 after an order was made in this court. These documents were provided late, but nonetheless they were provided.
Harman Obligation
The matter proceeded before me on the basis that the documents from which the implied undertaking, also known as the Harman[1] obligation, were the subject of a legal obligation on the part of the Respondent, to have provided the documents and/or the information to the de facto Husband. It was common ground that the implied obligation applied to the de facto Wife’s use of the documents. Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 set out those provisions.
[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280
Rule 6.04 Use of documents
(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.
Rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 relates to inspection of the file and release of subpoenaed documents and the like, but the applicable principles assist me in this determination.
Rule 15.13 Striking out objectionable material
(1) The court may order material to be struck out of an affidavit if the material:
(a)is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous or argumentative; or
(b) sets out the opinion of a person who is not qualified to give it.
(2)If the court orders material to be struck out of an affidavit, the party who filed affidavit may be ordered to pay the costs thrown away of any other party because of the material struck out.
I am also assisted by some comments in Darling as to the issue of whether special circumstances are required. I am satisfied that special circumstances are required for either party to use the documents produced under obligation in these proceedings for any other purpose. I am guided by paragraph [31] of Darling.
31.Her Honour found that a person may be released from the implied obligation if there are “special circumstances” and adopted Wilcox J’s view expressed in Springfield Nominees Pty Ltd v Bridgelands Ltd (1992) 38 FCR 217 that for:
special circumstances to exist, it is enough that there is some special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.
The Appeal Court in Darling did not agree with all aspects of the trial judge’s decision in that case. Nonetheless, the trial judge’s adoption of the most learned Wilcox J observations in Springfield[2] was accepted.
147.Before setting out the various submissions, we note there was no complaint about the primary judge’s reliance on the citation from Springfield Nominees concerning the “special circumstances” which must be shown before the discretion is enlivened. The formulation in Springfield Nominees has been applied in many other cases, albeit we accept there are other formulations…
[2] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720
Counsel for the de facto Wife put forward a range of what was said to be special circumstances, which was that the de facto Husband in these proceedings was a witness against the de facto Wife in the criminal proceedings, and that the de facto Wife in these proceedings was the accused/defendant in the criminal proceedings and that there was a real risk of a custodial sentence and consequences for X’s welfare. Those facts, it was said, made it important that the relevant information in the de facto Husband’s affidavits be made available for use in Court.
Concerns for the release of documents
It was also put that the de facto Husband’s opposition to the release of the documents was somehow mala fides and that I should place some weight upon it. The solicitor, of course, will not have had time to commit any of these allegations that he was effectively giving from the bar table to affidavit because of the short nature of the service.
The issue of these documents being used in Court had been raised between the respective solicitors since last November. The solicitor for the de facto Husband understood that it was intended that an application would be filed and that he went to the trouble of telephoning the solicitor for the de facto Wife and explained that it was not a matter of his mere consent, but an application needed to be made to the court.
I am satisfied that the solicitor for the de facto Husband position was correct. The solicitor for the de facto Husband suggested that an application should be made back at the end of November last year. He asserts that he had not heard anything more about the application until 4.01pm yesterday (early 2024) and I accept that.
I accept the solicitor for the de fac to Husband had requested advice about the nature (and the precise details) of the proceedings and that it was not provided with sufficient detail. In the circumstances of the implied undertaking for limitation on use of the documents, the very late service that creates urgency with the potential for injustice is less than satisfactory. The application should have been made some considerable time ago and not yesterday.
There is a dispute between counsel and solicitor appearing before me as to whether the de facto Husband is required for cross-examination for the plea. It was part of the applicant’s case that he was. The solicitor for the de facto Husband has asserted that his client has not been given such notice. It is unnecessary that I resolve that dispute.
Issues in dispute
I was told by the de facto Wife’s counsel that the issues in dispute was the assertion raised by the presiding judge of whether the de facto Wife had an equitable interest in the business because of the circumstances of the de facto relationship by raising a child and working in the business.
There is nothing in these reasons that should be regarded as any ruling or indication or advise to the presiding judge of what should and should not be taken into account under the heavy burden on that judge to sentence the de facto Wife according to the law.
I am told the dispute relates to the controversy that the defence does not accept that there is no merit in the accused’s claim that she contributed to the growth of the business during the relationship that she had with the respondent and the description of the de facto Wife’s role in employment.[3] There is also a potential controversy as to whether the surrounding circumstances were that there was pressure on the de facto Wife from the de facto Husband to render false invoices.
[3] As described in the amended prosecution opening of the plea is asserted to be “not strictly accurate
Proceedings in this Court
The proceedings in this Court relate to property alteration pursuant to Part VIIIAA of the Family Court and those proceedings in particular would centre on section 90SM(4) of the Family Law Act 1975 (Cth) and property orders would only be made if it was just and equitable to do so.
Section 90SM(4) Alteration of property interests
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
By reference to section 90SM(4)(e) the sloppy list of matters applicable to an application are relevant to a property settlement application. Section 90SF(3) is as follows:
Section 90SF(3) Matter to be taken into consideration in relation to maintenance
…
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
The proceedings in this Court also include proceedings as to the issue of the welfare of the child and the circumstances of with whom he should live in the event the de facto Wife is imprisoned and the de facto Husband’s application to spend substantial and significant time with the child, which I infer is opposed by the de facto Wife. It is unnecessary that I enter into that controversy as to why the de facto Wife opposes that and why it is necessary for the de facto Husband to obtain orders of the Court to be able to pursue a relationship with his son.
It was also asserted before me that the presiding Judge in mid-2023, had drawn an erroneous conclusion as to the rights or entitlement that the de facto Wife may have had an equitable interest in the de facto Husbands property. I make no comment in regard to that.
The legislation is clear as to what the de facto Wife can seek by the application of Part VIIIAB, which can be described as the property provisions for “de factos” under the Act.
The solicitor for the de facto Husband raised the unfairness of the de facto Wife’s position of having, as it was alleged, stolen substantial funds, and those funds were then never contributed back to the de facto matrimonial pool of assets, to the extent there is such a thing, and that she ultimately sought a 70/30 adjustment in her favour. I make no comment or ruling in regard to that on this hearing
Order sought by the de facto Husband
The matter was unable to be concluded prior to the solicitor for the de facto Husband needing to attend to another court commitment, which I permitted him to attend to and I heard another matter in the meantime and then resumed at 1 pm. Following that break, the solicitor for the de facto Husband, on instruction from his client having considered the discussion between counsel, solicitor and bench, modified his opposition of not being opposed to an order for the de facto Wife to release the documents of the affidavit of 6 February 2018 and paragraphs 1 to 21 only of the affidavit of 25 October 2023.
It was put that the financial statements of 8 February 2018 and 25 October 2023 and the remainder of the affidavit of 25 October 2023 should not be released in regard to those documents because the documents were not relevant and deposed to matters that had occurred after the offending.
Orders
I am satisfied that there are special circumstances. The de facto Husband is a witness of the plea whether he be required for cross-examination or by a way of witness statement in the prosecution proceedings and that the applicant de facto Wife in this court is the accused in those proceedings.
Further it is clear that the outcome of the plea hearing will have an impact, and a significant impact in these proceedings. I am not satisfied that there’s any malefices in regard to the de facto Husband’s earlier opposition to the release of those documents. In any event, that became a different position once his solicitor had had more time to reflect on the respective positions. I am satisfied that it is not for me or this court to determine the manner of the use of documents from this court in another court.
I am also satisfied (as was referred to in Darling) that these documents are affidavits and financial statements, which were not given in general discovery or obtained under a warrant or subpoena in another court, but were provided with an expectation that they might be read or referred to in open court.
This court is a public court. The restriction upon publication of Section 121 of the Act is a restriction upon the publication and use of information and documents from the proceedings, but it is not a restriction on the public nature of this court.
Section 121 Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2)A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii)the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b)in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or
(c)in the case of a broadcast or televised account or an account by other electronic means--it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4)A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983 .
(5) An offence against this section is an indictable offence.
That means that there was always the potential that, if accepted into evidence, any affidavit or financial statement of either of the parties could be referred to in open court and that anyone could listen to that.
Further, I take into account that these documents are not confidential between the parties of these proceedings. Each of them already have these documents and know what is in there. In all of those circumstances, I am satisfied that there is a special reason to release the de facto Wife from the implied obligation relating to these documents for use to Court.
I am indebted to the solicitor for the de facto Husband for assisting with the redrafting of the order in the event one was made, and that is I am not granting leave for the wife to rely on the documents, but I am releasing her from the implied obligation of Hearne v Street [2008] 235 CLR 125, and the obligations under rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules. I will also adopt his suggested redrafting of that order, which has not been opposed, and, in fact, was adopted by counsel for the de facto Wife.
There was discussion as to whether the documents could be used in regard to the confiscation proceedings, but no application in regard to those proceedings was sought, and it is unnecessary that I enter into that. The use of the wife’s documents in those proceedings is not sought by the wife. It is unnecessary that I deal with that dispute.
Issue of costs
I don’t accept that the fact that the de facto Wife as being wholly successful, albeit in different terms, assisted by the solicitor for the de facto Husband with his obligation to the court determines the matter. I am troubled by the lateness of the service, and the difficult position that that puts a party and their solicitor in to consider what to do, and the issue of there being no documents filed, etcetera. I do accept that that is a relevant matter.
I am satisfied in all of the circumstance that it is appropriate to fix the costs in regard to schedule 1 of division 2 rules by item 3 and 13, being the daily hearing fee for a full day hearing in a total of $4321, and the question of the payment of those costs or otherwise is reserved to the trial judge.
I reserve those costs because I am simply not in a position to make necessary factual findings in regard to the many moving parts of section 117(1) and 117(2)A, and I simply don’t know what the financial circumstances of the de facto Wife will be by the end of the proceedings.
I personally find the reservation of cost to a later date very irritating when it later comes to me, and I've got to determine reserved costs, but nonetheless, because of how many moving parts there are in this matter at this time, I am not satisfied that it is appropriate to order costs.
The trial judge, whoever that is, would still have the ability to determine whether those costs should be ordered, and I take into account that the solicitor for the de facto Husband’s ordinary rate of other work he would have been doing, but for this application, is in the substantial sum of $550 per hour, and it required him to attend to this matter from 4.01pm yesterday to now.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 February 2024
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