Simon & Birch
[2025] FedCFamC2F 181
•17 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Simon & Birch [2025] FedCFamC2F 181
File number(s): ADC 396 of 2025 Judgment of: JUDGE DICKSON Date of judgment: 17 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to be released from the Harman undertaking – Where the applicant is defending serious criminal charges in the District Court – Where the applicant seeks the release of documents filed in these proceedings for use in the criminal proceedings – Where the Court is satisfied that special circumstances exist which would justify release from the implied undertaking – Order. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.04, 15.13
Cases cited: Chakora & Bhander [2023] FedCFamC1F 127
Dunn & Dunn (No 2) [2022] FedCFamC1F 76
Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020
Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Hermann & Hermann (No. 2) [2014] FamCA 587
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Littlefield & Pemble(No 2) [2023] FedCFamC1F 793
Minister for Education v Bailey [2000] WASCA 377
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345
Pace & Halkias [2021] FamCAFC 81
R Pty Ltd ATF the Fletcher Trust & Jones and Anor [2016] FamCA 928
Riddick v Thames Board Mills Ltd [1977] QB 881
Sahadi & Savva and Anor [2016] FamCAFC 65
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
The State of Western Australia v JWRL (a child) [No 3] [2010] WASC 294
Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 385 ALR 562
Zarins & Mylne (No 3) [2013] FamCA 737
Zha & Wun(No 10) [2024] FedCFamC1F 850
Division: Division 2 Family Law Number of paragraphs: 55 Date of hearing: 12 February 2025 Place: Adelaide Counsel for the Applicant: Mr David Edwardson KC Solicitor for the Applicant: Purdie Legal Counsel for the Respondent: Mr Ian Robertson SC Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
ADC 396 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIMON
Applicant
AND: MS BIRCH
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
17 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Applicant and the Respondent and their legal advisers be released from their substantive legal obligation not to use the documents or any of the contents of the documents filed in the family law proceedings (ADC 3224 of 2021) other than for the purpose of the criminal proceedings (…) (being the obligation described as an implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 and described as a substantive legal obligation by the High Court of Australia in Hearne v Street [2008] HCA 36 (6 August 2008) at [3] ) in relation to the following documents:
(a)7.10.21 Affidavit Ms Birch;
(b)31.8.22 - Affidavit –Ms Birch;
(c)17.2.23 - Affidavit - Ms Birch;
(d)5.5.23 - Affidavit – Mr C;
(e)5.5.23 - Affidavit – Mr D;
(f)8.5.23 - Affidavit of Ms Birch;
(g)23.05.23 Case Summary Ms Birch;
(h)25.05.23 Affidavit of Ms Birch;
(i)25.05.23 Case Outline Mr Simon;
(j)30.05.23 – ORDER;
(k)01.06.2023 ORDER;
(l)07.04.2022 Affidavit Ms Birch; and
(m)05.07.2021 Initiating Application Final Orders
2.The release referred to in paragraph 1 hereof is strictly limited to the documents in paragraph 1 hereof and strictly limited to the use of those documents in the District Court Proceedings described as ….
3.Each of the parties do bear their own costs of and incidental to the said Applications.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings come before the Court following the filing of an urgent Initiating Application filed by the Applicant Husband Mr Simon (‘Mr Simon’) on 29 January 2025. The Respondent Wife, Ms Birch (‘Ms Birch’) filed a Response to Final Orders on 10 February 2025.
Mr Simon seeks to be relieved of the implied undertaking arising from the decision of Harman v Secretary of State for Home Department [1983] 1 AC 280 (‘Harman’) and described in Hearneand Anor v Street and Ors (2008) 235 CLR 125 (‘Hearne v Street’) with respect to documents emanating from earlier litigation between the parties in this Court and costs.
The application is opposed by Ms Birch. Ms Birch put forward an alternate position at the hearing as referred to below.
For the Reasons set out herein, I propose to grant the orders sought by Mr Simon and make no order as to costs.
DOCUMENTS RELIED UPON
Mr Simon filed an Amended Outline of Case Document on 11 February 2025 which sets out that he relies upon the following documents:
(1)Initiating Application for Final Orders filed 29 January 2025;
(2)Affidavit of Mr Simon filed 29 January 2025; and
(3)Further Amended Initiating Application filed 11 February 2025.
Mr Simon filed a Costs Notice on 12 February 2025, and tendered to the Court a Minute of Order which refined the categories of documents sought to be released.
Ms Birch filed an Outline of Case Document on 11 February 2025 which sets out that she relies upon the following documents:
(1)Response to Initiating Application filed 10 February 2025; and
(2)Affidavit of Ms Birch filed 10 February 2025.
Ms Birch filed a Costs Notice on 12 February 2025, and tendered a Secondary Minute of Orders Sought which outlined her alternate position at the hearing.
ORDERS SOUGHT
The Applicant, Mr Simon
At hearing, Mr Simon tendered a Minute of Orders Sought, which sets out that he seeks following orders:
1.That the Applicant and the Respondent and their legal advisers be released from their substantive legal obligation not to use the documents or any of the contents of the documents filed in the family law proceedings (ADC 3224 of 2021) other than for the purpose of the criminal proceedings ([…]) (being the obligation described as an implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 and described as a substantive legal obligation by the High Court of Australia in Hearne v Street [2008] HCA 36 (6 August 2008) at [3] ) in relation to the following documents:
1.1. 7.10.21 Affidavit [Ms Birch]
1.2. 31.8.22 - Affidavit –[Ms Birch]
1.3. 17.2.23 - Affidavit - [Ms Birch]
1.4. 5.5.23 - Affidavit – [Mr C]
1.5. 5.5.23 - Affidavit – [Mr D]
1.6. 8.5.23 - Affidavit of [Ms Birch]
1.7. 23.05.23 Case Summary [Ms Birch]
1.8. 25.05.23 Affidavit of [Ms Birch]
1.9. 25.05.23 Case Outline [Mr Simon]
1.10. 30.05.23 - ORDER
1.11. 01.06.2023 ORDER
1.12. 07.04.2022 Affidavit [Ms Birch]
1.13. 05.07.2021 Initiating Application Final Orders
2.The release referred to in paragraph 1 hereof is strictly limited to the documents in paragraph 1 hereof and strictly limited to the use of those documents in the District Court Proceedings described as […].
3.The Respondent pay the Applicants costs of this Application.
The Respondent, Ms Birch
Ms Birch provided a Minute of Orders Sought to the Court, which sets out her primary position as follows:
1.That the Applicant’s Initiating Application filed 30 January 2025 be dismissed.
2.That the Applicant pay the Respondent’s costs to be taxed if not agreed.
Ms Birch’s secondary position is as follows:
1.That the Applicant is released from the implied obligation not to use and to keep confidential material received by the applicant in proceedings in this Court (File No. ADC 3224 of 2021) and permission pursuant to rule 6.04(1)(b) is granted to the applicant to use the following:
1.1. Those parts of the affidavits of the Respondent being:
1.1.1.dated affidavit filed 7 October 2021, paragraphs [9] – [58], [71] – [100];
1.1.2.dated 17 February 2023, paragraphs [7] – [13]
1.1.3.dated 8 May 2023, paragraphs [71] – [80.27]
1.1.4.together with the formal parts of those affidavits sufficient to prove the same as affidavits of the respondent.
1.2. Those parts of the Outline of Case of Respondent filed 23 May 2023 being paragraphs [37] (chapeaux) and 37.4.
1.3. Paragraphs [36] – [39], [41] – [45], [49 and [50] of the affidavit of [Mr C] filed 5 May 2023;
Paragraphs [26] – [39] of the Affidavit of [Mr D] filed 5 May 2023
2.The release and permission above is limited to use of those parts of the above documents in the District Court Criminal Proceedings ([…]) only.
3.That the Applicant pay the Respondent’s costs of and incidental to the Initiating Application, to be taxed if not agreed.
At hearing, the parties agreed that should the Court make orders as sought by Mr Simon, then there should be a reciprocal order made in favour of both parties.
BACKGROUND AND SUBMISSIONS
The earlier proceedings involved the competing applications of the parties in respect of a property settlement and division under the file number ADC 3224 of 2021.
The Trial commenced on 30 May 2023. On 1 June 2023, final orders were made by consent resolving the parties’ dispute and all applications were dismissed. Mr Simon gave evidence and was cross-examined. Ms Birch did not.
As part of the earlier litigation, the Court was cognizant that Mr Simon had been charged with very serious criminal offences involving the parties’ two children, X and Y, with the offences alleged to have occurred over a significant period during the marriage. The allegations were not ventilated at Trial in this Court as they were not germane to the just resolution of the parties’ competing applications for property settlement, and no application was made by Mr Simon’s counsel at the time to convince the Court otherwise.
Self-evidently, the criminal charges have continued to wind their way through the criminal justice system. The charges have now been listed for Trial in the District Court of South Australia commencing in early 2025. Ms Birch is to be called as a witness for the prosecution.
King’s Counsel for Mr Simon informs this Court that the Trial has been listed for three weeks before a Judge alone. Mr Simon has instructed his counsel to defend the charges. King’s Counsel informs this Court that if convicted, Mr Simon will be imprisoned and potentially for a lengthy period.
It is Mr Simon’s position that the proceedings before this Court and the complaints made against him culminating in proceedings in the District Court are inextricably linked. He contends that the documents identified by him may well assist in his defence.
I have read the Outline of Argument which forms part of Mr Simon’s Outline of Case Document.
At hearing, King’s Counsel for Mr Simon also made an oral application to seek leave to dispense with the relevant rules in the Federal Circuit and Family Court of Australia (Family Law) 2021 (Cth) (‘the Rules’) that govern the use of documents as may be required to advance his client’s case.
Ms Birch opposed the orders sought by Mr Simon. In the written submissions prepared by Senior Counsel on her behalf, Ms Birch argues, inter alia, that Mr Simon:
(1)Has filed a supporting affidavit that contains “no tenable justification” for the release of the documents or, in the alternative, the release sought is too broad and should be further confined;
(2)Has not shown any special circumstance nor any public interest which might enliven the release of such documents; and
(3)Has not sought the permission of the Court pursuant to either rule 6.04 or rule 15.13 of the Rules for the release of certain categories of documents.
Further, Ms Birch argues that:
(1)If her affidavits are to be released, then such release should be confined to certain paragraphs of those affidavits identified in paragraphs 30 and 31 of her Outline of Case Document; and
(2)Neither her father, Mr C, nor Mr D are to be called as witnesses in the District Court Trial and their affidavits would, therefore, be of limited (if any) relevance.
LEGAL PRINCIPLES
There is now a considerable body of reported cases from this Court and superior Courts of record around the country directed to the principles governing the release from the Harman obligation.
The leave to which the application refers is that identified by the High Court in Hearne v Street, where their Honours record in the following 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. ...
(Footnotes omitted)
Whilst the High Court observed that the obligation not to disclose was described as an implied undertaking, it is an obligation of law.[1]
[1] Hearneand Anor v Street and Ors (2008) 235 CLR 125 (‘Hearne v Street’); Minister for Education v Bailey [2000] WASCA 377 (‘Minister for Education v Bailey’).
The rationale for the obligation has been described as ensuring that privacy and confidentiality are not invaded more than is necessary for the purpose of doing justice.[2]
[2] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67, [71], citing Hearne v Street [107]; Minister for Education v Bailey [25] - [27]; Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345; [2011] 1 Qd R 145 (‘Northbuild Construction v Discovery Beach Project (No 4)’) [13] & [52].
Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 896 explained the reasoning in the following terms:
Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise, the courts themselves would be doing injustice.
The purpose of the implied undertaking has variously been described as protecting privacy, preserving confidentiality and to encourage full and frank disclosure in the knowledge that such production will be protected.[3]
[3] Chakora & Bhander [2023] FedCFamC1F 127 (‘Chakora & Bhander’), [8].
The obligation extends to all Australian courts and tribunals as well as arbitration proceedings. It binds not just parties but their solicitors, counsel, and third parties including experts who are in receipt of documents generated or produced by the litigation. It is not just limited to documents but covers information.[4]
[4] Chakora & Bhander, [9].
As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576).[5]
[5] Chakora & Bhander, [10].
The implied undertaking has been said to find its expression in the Rules. Rule 6.04 is in the following terms:
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.
The permission to which rule 6.04(1)(b) is directed has been described as requiring the establishment of special circumstances.[6]
[6] Chakora & Bhander, [12].
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (‘Springfield Nominees’), Wilcox J said at 225:
… 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. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 (‘Liberty Funding v Phoenix Capital’) at [31], the Full Court of the Federal Court said as follows:
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.
The likely contribution of the document to achieving justice in another proceeding as been recognised as being the most important.[7]
[7] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225; Minister for Education v Bailey [23]; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [31]; Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208, [17], [24]; Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 385 ALR 562, [96].
The statement in Liberty Funding v Phoenix Capital as to special circumstances has been adopted with approval by the Full Court of the Family Court.[8] Further, that the exercise of discretion is a broad one.[9]
[8] Pace & Halkias [2021] FamCAFC 81; Littlefield & Pemble(No 2) [2023] FedCFamC1F 793 (‘Littlefield & Pemble (No 2)’).
[9] Zha & Wun(No 10) (2024) [2024] FedCFamC1F 850, [30].
There are many reported decisions from this Court where documents have been released for use in other proceedings including but not limited to criminal,[10] defamation,[11] and civil proceedings.[12] The documents permitted for release have included affidavits of parties and others, single expert reports, a child expert memorandum and Court orders.[13] Documents have been permitted for release whether they had been read or the subject of cross-examination or not.
[10] Chakora & Bhander; Littlefield & Pemble (No 2); Zarins & Mylne (No 3) [2013] FamCA 737 (‘Zarins & Mylne (No 3)’); Dunn & Dunn (No 2) [2022] FedCFamC1F 76 (‘Dunn (No 2)’).
[11] Pace & Halkias [2021] FamCAFC 81.
[12] Hermann & Hermann (No. 2) [2014] FamCA 587 (‘Hermann’); R Pty Ltd ATF the Fletcher Trust & Jones and Anor [2016] FamCA 928.
[13] Chakora & Bander; but see Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020 as the authority of the proposition that Court orders are not covered by the implied undertaking.
These cases have been determined by the Full Court and by Division 1 of this Honourable Court and are binding upon me.
CONSIDERATION
In this case, I am satisfied that special circumstances exist to justify a release as sought by Mr Simon from the implied undertaking given the serious criminal charges and the potential deprivation of liberty if convicted.
Whilst I accept that the basis upon which Mr Simon seeks the release, as set out in his affidavit, is thin, it is obvious that he seeks to cross-examine Ms Birch on issues of credit and inconsistent statements made between the two jurisdictions. Cross-examination on issues of credit has been described as fundamental to most litigation and can be a basis to permit the use of documents.[14]
[14] R Pty Ltd ATF the Fletcher Trust & Jones and Anor [2016] FamCA 928, citing Northbuild Construction v Discovery Beach Project (No 4), [17].
I also accept the explanation given by King’s Counsel on behalf of Mr Simon as to the delay in the filing of Mr Simon’s Initiating Application given the apparent difference of opinion between King’s Counsel and Junior Counsel as to the need for Mr Simon to seek the release from the Court. As these Reasons confirm, King’s Counsel’s advice was correct.
Ms Birch’s Senior Counsel argues that if leave is granted, it should be confined to certain identified paragraphs of the affidavits as identified in paragraphs 30 to 41 of her Outline of Case Document. This approach was resisted by Mr Simon who argued that the entirety of the affidavits should be permitted without redaction by this Court.
The practice of redaction or only certain parts of documents being released has been adopted by this Court.[15] In Hermann & Hermann (No. 2) [2014] FamCA 587, certain passages of documents that referred to parenting issues were redacted from documents permitted by the applicant to be used in litigation to be conducted in the Supreme Court of Victoria. There is no such consideration here as the litigation in this Court between Mr Simon and Ms Birch only concerned a property dispute.
[15] Dunn (No 2).
In determining whether or not to give leave to use all or part of the material, I am persuaded by the argument put by King’s Counsel that it is not for this Court to speculate on the issue of admissibility in the other Court or the purpose for which it may be put. Such an approach has been adopted by the Full Court and Division 1 of this Court.[16]
[16] Littlefield & Pemble (No 2), citing Sahadi & Savva and Anor [2016] FamCAFC 65, [69]; Dunn (No 2), [29].
I, therefore, do not need to consider the so called “Orton principle” as submitted by King’s Counsel with reference to the decision of The State of Western Australia v JWRL (a child) [No 3] [2010] WASC 294.
To the extent that I must consider the oral application made by King’s Counsel to dispense with the Rules, the application is granted noting the conflicting decisions referred to above where Court orders and Memorandums have been released from the implied undertaking without reference to the need for dispensation of the relevant rules of Court.
CONCLUSION
For all of the above Reasons, I consider that special circumstances exist to make orders as sought by Mr Simon but in mutual terms as agreed between the parties if such release was granted.
COSTS
Each of the parties sought costs in their favour to be agreed or taxed dependent on the outcome.
Section 117 of the Family Law Act 1975 (Cth) directs itself to costs. Neither party sought to address the Court as to any subsection which may apply.
Whilst arguably Ms Birch has been wholly unsuccessful in this application, there are other matters which I consider relevant to the question of costs.
The first is in relation to the ambit of the claim as initially pleaded by Mr Simon in his Initiating Application filed 29 January 2025 compared with the refined orders ultimately sought in the proposed Minute of Orders sought tendered to the Court at hearing, which could be described as something of a “moving feast.”
Whilst I appreciate that Mr Simon’s application was hastily brought given the proximity of the District Court Trial, the multiple amendments to Mr Simon’s application made it very difficult for Ms Birch to concisely respond.
The second is that even if Ms Birch had ultimately agreed to some or all of Mr Simon’s application or stood by with no consent but no active opposition, the decision was still ultimately one for the Court.[17] It is for the Court to consider that special circumstances exist so as to justify a release from the implied undertaking not the parties.
[17] Zarins & Mylne (No 3); Chakora & Bander; Littlefield & Pemble (No 2).
For these reasons, I consider that a just outcome is for the parties to bear their own costs of and incidental to this application.
For all of the above Reasons, the Court makes the Orders as set out at the commencement of this Judgment.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 17 February 2025
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