Siddell & Siddell - [2022] FedCFamC2F 1239

Federal Circuit and Family Court of Australia
(DIVISION 2)
Siddell & Siddell [2022] FedCFamC2F 1239

File number(s): ADC 1336 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 31 August 2022

Catchwords: FAMILY LAW – Practice & Procedure – applicant seeks release of affidavits prepared in family law proceedings and medical record subpoenaed by the ICL in those proceedings for use in criminal proceedings against him – release sought from implied undertaking that such documents are only to be utilised in the proceedings for which they were produced or solicited – Harman Undertaking – matters to be considered – special circumstances - costs

Legislation: Family Law Act1975 (Cth) s 117

Cases cited:
Banks & Loffler [2015] FamCA 380

Siddell & Siddell [2020] FCCA 3350

Fotopoulos v Commonwealth Bank of Australia & Anor [2017] VSC 461

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3

Miller & Murphy [2016] FCCA 974

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720

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

Division: Division 2 Family Law

Number of paragraphs: 51

Date of hearing: 31 August 2022

Place: Adelaide

Counsel for the Applicant: Mr Werner

Solicitor for the Applicant: O’Keefe Schroeder Lawyers

Counsel for the Respondent: Mr Mort

Solicitor for the Respondent: In person
ORDERS

ADC 1336 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SIDDELL

Applicant

AND:
MS SIDDELL

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS THAT:
1.The applicant, Mr Siddell, be at liberty to use the documents and information, contained in the list of documents being Annexure “A” to these orders for the purposes of the criminal proceedings instituted against the Applicant in the Magistrates Court of Victoria, and any subsequent Trial arising subject to Order 2 hereof.
2.The solicitors and any counsel for the applicant, Mr Siddell, instructed in the criminal proceedings referred to in Order 1 hereof, are restrained and an injunction issues restraining each of them and their servants and/or agents from providing any of the documents subpoenaed from Town N Medical Clinic to Mr Siddell.
3.Within 14 days of today’s date the Respondent is at liberty to make an application for costs with such application to be determined on the papers.
4.All applications otherwise stand dismissed.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Siddell & Siddell

Details

AGLC: Siddell & Siddell [2022] FedCFamC2F 1239
Case: [2022] FedCFamC2F 1239
Decision Date

CaseChat Overview and Summary

The parties to the proceedings were Mr Siddell and his former wife, Ms Siddell. The dispute centred around Mr Siddell's application to the Court to use documents which had been produced or obtained in family law proceedings between them, for use in criminal proceedings against him in the Magistrates Court of Victoria. The matter was heard by Judge Brown of the Federal Circuit and Family Court of Australia (Division 2). The legal issues which the court was required to decide included whether Mr Siddell had demonstrated special circumstances to justify releasing him from an implied undertaking that the documents could only be used in the family law proceedings, and whether the documents were likely to be directly relevant to the defence of the criminal charges against him. The court's reasoning and outcome were that Mr Siddell had demonstrated special circumstances to justify releasing him from the implied undertaking, and that the documents were likely to be directly relevant to the defence of the criminal charges against him. The court ordered that Mr Siddell be at liberty to use the documents in the criminal proceedings, subject to certain restrictions, and that the solicitors and any counsel for Mr Siddell in the criminal proceedings be restrained from providing any of the documents subpoenaed from Town N Medical Clinic to Mr Siddell. The court also granted Ms Siddell 14 days to make any application for costs which she may wish to bring.

Orders