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 persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Siddell & Siddell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This afternoon, I had to deal with an application brought by Mr Siddell (“Mr Siddell”) on 23 August 2022. In his application, Mr Siddell seeks the court's leave to be able to use a wide range of documents, which were either produced or obtained pursuant to subpoena and family law proceedings, in what was then known as the Federal Circuit Court of Australia, between him and his former wife, Ms Siddell (“Ms Siddell”), concerning parenting arrangements for their four children.
In general terms, Mr Siddell commenced the family law proceedings in April 2020 seeking equal time with the children. Ms Siddell sought in her response that any time be subject to rigorous professional supervision. In a judgment which was published on 9 December 2020, I summarised the background to the case in the following terms:
At the time of the [father's] application it was his position that the mother and children had left the former family home in [Town F] and he did not know where they were. At the time he was subject to an interim intervention order which had been granted immediately following separation.
The mother filed a response to the application in mid-May. On both an interim and final basis she sought orders that the children live with her and she have sole parental responsibility for them. Pending final hearing, she proposed professionally supervised time at the [City H] Children's Contact Service (“CCC”). She did not oppose a property settlement.
The mother's reasons for seeking only professionally supervised time were expressed in the following terms:
The applicant and I separated on a final basis following four years of sexual, physical, emotional and financial abuse.
For the last four years of our relationship the applicant raped me on no less than one or two occasions each week.
In January of this year the abuse became horrific and there was a period of two weeks where the applicant raped me up to three times a day whilst the children were in the home. The children would regularly hear me screaming and yelling at the applicant to stop. However, the applicant would not.[1]
[1] See Siddell & Siddell [2020] FCCA 3350 at [17] – [19].
Accordingly, the proceedings before me concerned very significant issues of family violence which was characterised by extreme violence, sexual assault and coercion and control of the most significant kind. In these highly polarised circumstances, an Independent Children's Lawyer (“ICL”) was appointed for the children concerned. Necessarily over the course of the proceedings each of the parties concerned filed multiple affidavits.
The proceedings were ultimately resolved on 16 September 2021 with a consent order. Earlier orders by consent had been made in respect of the parties' property interests. Accordingly, a trial of the issues relating to the family violence allegations did not occur.
During the course of the proceedings, on 9 July 2020, the ICL, Ms Nicola Atchison, issued a subpoena directed to the Town N Medical Clinic. In her subpoena she requested all medical records, files, specialist reports and notes in respect of Ms Siddell, along with similar records in respect of the husband and the four children concerned.
The subpoena was answered a short time later and the case returned before me on 20 August 2020, in the circuit of the court to City O. As I recall, the parties themselves lived in Western Victoria, but it was convenient at the time for the proceedings to be conducted in the court circuit to City O.
As I say, on 20 August 2020, when the case returned to court, an order was made that the parents' legal representatives, the parents and the Independent Children's Lawyer were granted leave to inspect and the parents' legal representatives and the Independent Children's Lawyer only leave to copy the documents produced under subpoena dated 7 July 2020 to Victoria Police and dated 9 July 2020 to Town N Medical Clinic.[2]
[2] See Orders of Judge Brown on 20 August 2020.
Accordingly, at that stage it was recognised that the documents relating to the medical records of the parties were sensitive and it was appropriate that special arrangements be made in respect of the parties' access to them. The parties themselves were not permitted to have access to copies of the relevant records.
Mr Siddell, in an affidavit which he has filed in support of his current application on 23 August 2022, details the nature of his application and indicates why there is some urgency about the matter from his perspective. He deposes as follows:
In September 2021 I was served with charge sheets and summonses by Victoria Police particularising 27 charges based on factual allegations relating to recklessly causing injury and rape within a date range of February 2011 to 20 February 2020.[3]
[3] See affidavit of Mr Siddell filed on 23 August 2022 at [3].
There is no controversy that the complainant in respect of the charges is Ms Siddell. I have also been provided with what is entitled a Summary of Circumstances which, in brief terms, gives details or particulars of the offences in respect of which Mr Siddell has been charged and when it is alleged they took place.
The charges begin with an allegation that in February of 2011 he recklessly caused injury to Ms Siddell when he removed a contraceptive device from her body. Thereafter, it is alleged that he raped her in a variety of ways between dates in July 2019 and each month thereafter until February of 2020. Mr Siddell is due to appear in the City H Magistrates' Court tomorrow, 1 September 2022, on the first day of a two-day committal hearing relating to these charges.
In these circumstances, Mr Siddell seeks to utilise all the affidavits produced by him and Ms Siddell in the Federal Circuit Court proceedings together with the documents produced to the court pursuant to the subpoena issued by the Independent Children's Lawyer and subsequently copied by court order and released to each of the parties' solicitors from the Town N Medical Clinic. Hence, there is some urgency to produce these reasons, which are being delivered orally following a hearing earlier today.
Ms Siddell objects to the documents being put to the use sought by Mr Siddell. She has had limited time to formalise her objections as a consequence of only being served with the application on 24 August 2022. She has, however, prepared a response, which bears her own name as its author. She has not as yet had an opportunity to prepare an affidavit in support. Significantly, she has had sufficient time to instruct counsel, Mr Mort, who has appeared today and who has made submissions on her behalf. Mr Siddell is represented by his counsel, Mr Werner.
In essence, Ms Siddell is particularly concerned, for what I regard as largely self-apparent reasons, about the degree of access Mr Siddell may have personally to her almost certainly wide-ranging medical records relating to her treatment over very many years, which may concern multiple conditions relating to sensitive matters which are irrelevant to the current criminal proceedings.
For obvious reasons, the parties who are most concerned in this matter, namely, the husband and wife, the mother and father, have an extraordinarily difficult relationship and, on any view, have separated in the most difficult circumstances one can imagine, so for those reasons I can appreciate why issues to do with her medical records assume some significance in her approach to this application.
There is no doubt that each of the documents involved in these proceedings are subject to an implied undertaking, applicable to both Mr Siddell and Ms Siddell (and indeed the ICL) that they would be utilised by the parties concerned only in the family law proceedings, for which they had either been prepared or obtained, and not for any other purpose.
Such an undertaking is commonly referred to as a Harman undertaking following the English case of Harman v Secretary of State for the Home Department.[4]It is equally applicable in Australia. In Hearne v Street, the High Court described the principle underlying the undertaking as follow:
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]
[4] See Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[5] See Hearne v Street [2008] HCA 36 at [96].
The type of material covered by this implied undertaking includes both affidavits and documents produced on subpoena and extends to any copies of such documents. It is a rule relating to the administration of justice in the sense that courts should control the documents which they compel be produced to them or which are produced as a consequence of their processes. Essentially whatever the court that is instrumental in the solicitation of such documents should control their subsequent dissemination.
In a decision of my own, which has been anonymised as Miller & Murphy,[6] I said as follows, in reference to the case of Springfield Nominees Pty Ltd v Bridgelands Securities Ltd: [7]
It has been said, in a number of cases, that special circumstances must be established before leave is granted to release a person from such an undertaking.[8]
[6] See Miller & Murphy [2016] FCCA 974.
[7] See Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720.
[8] See Miller & Murphy [2016] FCCA 974 at [49].
I also referred to the case of Liberty Funding Pty Ltd v Phoenix Capital Ltd (“Liberty Funding”),[9] in which the Full Court of the Federal Court said as follows:
In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances". It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.[10]
[9] See Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3.
[10] See Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31].
Miller & Murphy concerned family law proceedings, which had been conducted before me. The parties concerned were a couple, who had separated following a physical altercation between them in their family home. After the altercation, the husband had been arrested and charged with aggravated assault of both the wife and one of their children, who had allegedly been present.
As a consequence, an interim protection order had been issued against the husband, which had named both the wife and the child concerned, as protected persons. The intervention order was based on statutory declarations made by the wife, which indicated that the child had been present at the time of the assault and that she was a witness to it and she was, accordingly, a factor in the reasons why the protection order was granted in the first place.
During the course of the family law proceedings, the child concerned was interviewed by a Family Consultant and in the course of that interview a report was prepared in which the child indicated that she had not, in fact, seen the assault. In those circumstances, in other proceedings relating to the possible revocation of the intervention order, the husband wished to utilise the Family Consultant's report.
Ultimately, although I was concerned about the psychological implications for the subject child arising from the release of the report and its potential use in cross-examining her, I authorised its use by the husband in proceedings other than those in relation to which it had been prepared.
I relied on two authorities in support of this determination. The first was Banks & Loffler,[11] a decision of Dawe J. Her Honour considered that special circumstances existed to justify the release of affidavit material prepared by one parent in family law proceedings for the use by the other parent in what her Honour described as his defence of significant criminal proceedings concerning another child in which the mother was likely to be a significant witness. Her Honour said as follows:
In those circumstances I consider that justice requires that the father be able to use the material in the appropriate fashion without the risk of being forced to be in breach of the Harman obligation, the Acts or rules.[12]
[11] See Banks & Loffler [2015] FamCA 380.
[12] See Banks & Loffler [2015] FamCA 380 at [10].
Berman J took a similar approach in Zarins & Mylne (No 3)[13] where he said as follows:
As already discussed, the purpose for which the documents are to be used are in respect of criminal proceedings which involve the mother as the alleged victim. It is predominantly her affidavit material and the collateral and associated documents for which leave to be relieved from the implied undertaking is sought. I consider that there exists "special circumstances" which would justify a release from the implied undertaking.[14]
[13] See Zarins & Mylne (No.3) [2013] FamCA 737.
[14] See Zarins & Mylne (No.3) [2013] FamCA 737 at [39].
Accordingly, on the basis of what had been said in Liberty Funding, I consider that there was good reason to release the document concerned, which related to the applicant's defence or application to remove the intervention order and that this amounted to special circumstances.
Mr Werner, counsel for the father, seeks the utilisation of the various documents specified in Mr Siddell's application in order to enable the court in the committal proceedings and any subsequent trial which may result to be able, in his words, to put the criminal charges against his client in their full and proper context.
It is his submission that there is good reason for his client to have access to these documents in his defence. In support of this assertion he submits as follows:
There can be no suggestion that the documents which were produced or obtained for the family law proceedings were obtained for or through any improper purpose. Necessarily they arose in the context of an application for parenting orders and the documents were subpoenaed not by [Mr Siddell] himself, but by another party in the case concerning him, namely the Independent Children's Lawyer.
In these circumstances, Mr Werner further submits that the potential use of the documents in the subsequent criminal proceedings is axiomatically for a legitimate forensic purpose, which relates to his ability to cross-examine the mother and possibly other prosecution witnesses in respect of the strength or otherwise of the case which he has to meet at the committal stage and necessarily to a higher standard of proof, if the matter proceeds to trial.
Finally, Mr Werner submits that this court cannot seek to fetter how any subsequent court will use the documents, which this court may authorise or disallow the use of the documents, as it is a matter for the subsequent court as to how it manages the use of the documents that are utilised in proceedings before it, and it is for that subsequent court to prevent any potential abuse which may or may not arise, not this court. Thus, Mr Werner submits, his client has demonstrated that sufficient special circumstances exist to justify the release of Mr Siddell from the implied undertaking.
It is Mr Werner’s submission that the most compelling or overriding special circumstances in the case is the fact that his client is facing serious criminal charges and that the potential consequences of these charges for him are of such obvious gravity that they countervail the interests arising, both of a public and personal nature, from the potential consequences of the implied undertaking to which he is subject being discharged.
He has referred me to a number of authorities, particularly the case of Springfield Nominees Pty Ltd v Bridgelands Securities Ltd,[15] to which reference has already been made. It is a decision of Wilcox J of the Federal Court.
[15] See Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720.
His Honour said that special circumstances may arise where there are special feature or a special feature of the case which afford good reason for modifying or releasing the undertaking, being circumstances which are of sufficient gravity to override the private and public interests in protection of the confidentiality of a person's private documents, which are required by law to be produced to a court.
It is the last of these factors to which Mr Werner places particular emphasis. He submits that the Court must consider what is the likely contributions of the subject documents to achieving justice for his client in the subsequent proceedings and that that test is similar to the legitimate forensic test which relates to the production of subpoenaed documents.
Essentially, Mr Werner submits, that it is axiomatic that these documents which have commonality with the criminal charges against his client are central to Mr Siddell being able to conduct his defence to the best possible extent and this is an object which is directed towards the service of the interests of justice and is more significant than the public interest in documents being restricted to the use in courts for which they were prepared.
Mr Werner relies on what was said by Derham AJ in the case of Fotopoulos v Commonwealth Bank of Australia & Anor[16] as follows:
It seems to me that the liberty to cross-examine witnesses in criminal prosecutions by reference to statements made by them, and documents discovered by them, affords a good reason for releasing the undertaking in these cases. The fact of the considerable overlap between the issue in the proceedings and the subject matter of the criminal prosecutions has the result that there is an overriding interest in favour of affording the use of the documents.[17]
[16] See Fotopoulos v Commonwealth Bank of Australia & Anor [2017] VSC 461.
[17] See Fotopoulos v Commonwealth Bank of Australia & Anor [2017] VSC 461 at [45].
It is enough that the documents will be used to cross-examine the witness if called in the prosecution and that they relate to the same subject matters. Mr Werner submits that these statements are on all fours with the circumstances in the present case and, with respect, I agree with him.
Mr Werner has had insufficient time to respond to the issues raised by Mr Mort regarding the sensitivity of the medical material. However, as I understand it, in general terms, he can see that considerations of propriety and sensitivity to Ms Siddell's views regarding the dissemination of her medical records are relevant considerations for how the Court exercises its authority in respect of this issue.
In response, Mr Mort points to the lateness of the notice which his client received and there is, I think, some substance to that concern as these committal proceedings have, no doubt, been fixed for some period of time and it is, I think, regrettable that these issues have to be determined the day before the committal proceedings. However, the most significant aspect of this case turns on the sensitivity of the material and, in particular, his client's anxiety that Mr Siddell may physically have possession of her medical records.
In these circumstances, he urges the court to pay some safeguard in the regulation of the documents and restrict their use to counsel and solicitors in the criminal proceedings and ensure that they are not ever directly provided to Mr Siddell.
conclusions
In conclusion, I am satisfied that Mr Siddell has demonstrated sufficiently special circumstance to authorise the use by him of the relevant documents. In particular, I am satisfied that he has a legitimate forensic purpose in their utilisation in the connection with the criminal proceedings against him. The documents are likely to be directly relevant to the criminal proceedings against him. They came into existence prior to the criminal charges against him being formally laid.
In these circumstances, more importantly, the likely contribution of the documents to the defence of the criminal prosecution will enable Mr Siddell to test the evidence that is to be given against him in relation to the various charges. This, in my view, is clearly a legitimate forensic purpose and, moreover, it is important to the general administration of criminal justice.
In these circumstances, these factors support releasing Mr Siddell from the implied undertaking to which he is subject in this case. In my view, these considerations go beyond the immediate interests of the parties themselves and involve a wider public interest which includes the public interest in the criminal law being administered fairly and appropriately.
I acknowledge the obvious sensitivity of Ms Siddell’s medical records and her anxiety that Mr Siddell may have physical possession of copies of them following the criminal proceedings. There is the possibility that they will have some forensic purpose in his defence and their use should be restricted to this purpose.
For this reason, I will order that the solicitors and any counsel for the applicant, Mr Siddell, instructed in the criminal proceedings be 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.
There is an issue of costs. As I recall, Mr Siddell himself has not sought costs. Ms Siddell has sought costs. I have not been provided with any itemised details of their extent. Clearly because she has retained Mr Mort as her counsel, then it is likely that she has been put to some expense as a result of these proceedings. I also appreciate that she did not have a great deal of time to respond to them. In general terms, proceedings in family law proceedings are subject to the general rule arising in section 117 of the Family Law Act1975 (Cth) that they each bear their own costs.
In many ways these are idiosyncratic proceedings in the sense that because the principles relating to Harman undertakings arise as a consequence of the inherent jurisdiction of the Court to manage its processes, it was necessary for this application to be brought, I think, and it was not one necessarily which could have been resolved consensually, so that, I think, is a factor that favours Mr Siddell.
Mr Siddell has also been successful in the proceedings which is a factor under section 117(2A) which in special circumstances justifies an order for costs, but at this stage what I propose to do is grant Ms Siddell 14 days to make any application for costs which she may wish to bring and that can be dealt with, I would hope, on the papers unless the parties would want it differently.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 12 September 2022
Annexure A
Date Filed Document Deponent 8 August 2021 Affidavit Ms Siddell 30 July 2021 Affidavit Mr Siddell 9 March 2021 Affidavit Ms Siddell 2 March 2021 Affidavit Mr Siddell 25 November 2020 Affidavit Ms Siddell 30 October 2020 Affidavit Mr Siddell 9 July 2020 Subpoena Town N Medical Clinic Documents, produced under Subpoena, various dates Town N Medical Clinic 18 June 2020 Affidavit Ms Siddell 1 June 2020 Affidavit Ms J 1 June 2020 Affidavit Mr Siddell 14 May 2020 Affidavit Ms Siddell 12 May 2020 Affidavit Mr Siddell 3 April 2020 Affidavit Mr Siddell
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