Tauber & Farrens - [2024] FedCFamC2F 792

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tauber & Farrens [2024] FedCFamC2F 792

File number(s): MLC 12238 of 2022

Judgment of: JUDGE HARLAND

Date of judgment: 24 June 2024

Catchwords: FAMILY LAW – practice and procedure –- mother seeking to be relieved of her Harman undertaking – mother seeks various documents to be made available in the criminal proceedings between the mother and the child – mother facing multiple criminal charges and possible jail sentence – father opposes release of expert reports – Independent Children’s Lawyer opposes release of subpoenaed material – child’s right to privacy – child is the complainant in the criminal proceedings

Legislation:
Family Law At 1975, Part VII, ss.60CA

Federal Circuit and Family Court of Australia (Family Law) Rules2021 r.6.04

Cases cited:
Canavan and Dowd [2023] FedCFamC1F 207

Chakora & Bhander [2023] FedCFamC1F 127

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

Hearne & Street (2008) CLR 125

Liberty Funding Pty Ltd v Phoenix Capital (2005) 218 ALR 238

Littlefield & Pemble [2023] FedcFamC1A 198

Pace & Halkias [2021] FamCAFC 81

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Division: Division 2 Family Law

Number of paragraphs: 28

Date of hearing: 13 June 2024

Place: Melbourne

Counsel for the Applicant Ms Bonney

Solicitor for the Applicant Otis Legal

Counsel for the Respondent Ms Braun

Solicitor for the Respondent Tartaglia and Associates

Counsel for the Independent Children’s Lawyer Ms Kildea

Solicitor for the Independent Children’s Lawyer Victoria Legal Aid
ORDERS

MLC 12238 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TAUBER

Applicant

AND:
MR FARRENS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

24 JUNE 2024

THE COURT ORDERS THAT:
1.The Applicant and Respondent and their legal advisers be released of the obligation of the implied undertakings to this Court as articulated in Harman v Secretary of State for Home Department [1983] 1 AC 280 with respect to:
(a)Affidavit of Ms Tauber filed 5 May 2015;
(b)Affidavit of Ms Tauber filed 11 May 2015;
(c)Affidavit of Mr Farrens filed 15 May 2015;
(d)Affidavit of Ms B filed 15 May 2015;
(e)Affidavit of Ms Tauber filed 22 May 2015;
(f)Affidavit of Ms Tauber filed 1 November 2022;
(g)Affidavit of Mr Farrens filed 30 November 2022;
(h)Affidavit of Ms B filed 30 November 2022;
(i)Affidavit of Mr Farrens filed 13 December 2022;
(j)Affidavit of Mr Farrens filed 13 September 2023;
(k)Family Report prepared by Mr C dated 17 August 2015;
(l)Family Report prepared by Mr C dated 5 September 2023;
(m)Child Impact Report prepared by Ms D dated 16 December 2022;
(n)The following list of documents produced by the Department of Families, Fairness and Housing:
(i)Section 67ZA response dated 10 November 2022 to Federal Circuit Court of Australia;
(ii)Response pursuant to section 69ZW Order dated 14 November 2022 to Federal Circuit Court of Australia; and
(iii)Report letter dated 20 December 2022 to Federal Circuit Court of Australia.

(o)Documents produced…

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 Tauber & Farrens

Details

AGLC: Tauber & Farrens [2024] FedCFamC2F 792
Case: [2024] FedCFamC2F 792
Decision Date: 24 June 2024

CaseChat Overview and Summary

Ms Tauber sought to be relieved of her Harman undertaking in relation to various documents that had been filed in family law proceedings between herself and Mr Farrens. Ms Tauber was facing multiple criminal charges and a potential jail sentence, and wished to use the documents in the criminal proceedings. Mr Farrens opposed the release of the expert reports and the Independent Children's Lawyer also opposed the release of the subpoenaed material, citing the child's right to privacy. The child was the complainant in the criminal proceedings. The court had to determine whether the applicant should be relieved of her Harman undertaking and whether the documents could be used in the criminal proceedings. The court also had to consider the child's right to privacy and the interests of justice.

The court found that the applicant should be relieved of her Harman undertaking and that the documents could be used in the criminal proceedings. The court held that the interests of justice required the documents to be made available for use in the criminal proceedings, given the seriousness of the charges against Ms Tauber and the potential impact on her defence. The court also found that the child's right to privacy could be protected by limiting the use of the documents to the criminal proceedings and certain other specified parties. The court held that the use of the documents for these purposes would not breach the Family Law Act 1975 (Cth).

The court made an order relieving the applicant and respondent, and their legal advisers, of their Harman undertaking in relation to the specified documents. The order also limited the use of the documents to the criminal proceedings and certain other specified parties, and declared that such use would not constitute a breach of the Family Law Act 1975 (Cth). The court dismissed the remainder of the applicant's application.

Orders

Orders of the court

MLC 12238 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS TAUBER

Applicant

AND:

MR FARRENS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

24 JUNE 2024

THE COURT ORDERS THAT:

1. The Applicant and Respondent and their legal advisers be released of the obligation of the implied undertakings to this Court as articulated in Harman v Secretary of State for Home Department [1983] 1 AC 280 with respect to:

(a) Affidavit of Ms Tauber filed 5 May 2015;

(b) Affidavit of Ms Tauber filed 11 May 2015;

(d) Affidavit of Ms B filed 15 May 2015;

(e) Affidavit of Ms Tauber filed 22 May 2015;

(f) Affidavit of Ms Tauber filed 1 November 2022;

(g) Affidavit of Mr Farrens filed 30 November 2022;

(h) Affidavit of Ms B filed 30 November 2022;

(i) Affidavit of Mr Farrens filed 13 December 2022;

(j) Affidavit of Mr Farrens filed 13 September 2023;

(k) Family Report prepared by Mr C dated 17 August 2015;

(l) Family Report prepared by Mr C dated 5 September 2023;

(m) Child Impact Report prepared by Ms D dated 16 December 2022;

(n) The following list of documents produced by the Department of Families, Fairness and Housing:

(i) Section 67ZA response dated 10 November 2022 to Federal Circuit Court of Australia;

(ii) Response pursuant to section 69ZW Order dated 14 November 2022 to Federal Circuit Court of Australia; and

(iii) Report letter dated 20 December 2022 to Federal Circuit Court of Australia.

(o) Documents produced by way of subpoena to Victoria Police filed 7 June 2023 and contained in subpoena packet 5.

2. The relief from the implied Harman obligation referred to in Order 1 herein, is to be limited to the use of the documents, or provision of the documents to, as follows:

(a) Criminal proceedings in Court (‘the Criminal Proceedings’) and any superior Court to which the criminal proceedings may be referred;

(b) The Director of Public Prosecutions;

(d) Any practitioner appearing on behalf of or advising the parties, or either of them, in relation to the criminal proceedings.

3. The application in a proceeding filed 10 April 2024 and the response filed 2 May 2024 are otherwise dismissed.

THE COURT DECLARES THAT

4. Neither the applicant, the respondent, nor their legal advisors will be in breach of the Family Law Act 1975 (Cth) by using any of the documents referred to herein for the purpose set out in Order 2 herein, and such use will not constitute a breach.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 12238 of 2022
Judgment of:	JUDGE HARLAND
Date of judgment:	24 June 2024
Catchwords:	FAMILY LAW – practice and procedure –- mother seeking to be relieved of her Harman undertaking – mother seeks various documents to be made available in the criminal proceedings between the mother and the child – mother facing multiple criminal charges and possible jail sentence – father opposes release of expert reports – Independent Children’s Lawyer opposes release of subpoenaed material – child’s right to privacy – child is the complainant in the criminal proceedings
Legislation:	Family Law At 1975, Part VII, ss.60CA Federal Circuit and Family Court of Australia (Family Law) Rules2021 r.6.04
Cases cited:	Canavan and Dowd [2023] FedCFamC1F 207 Chakora & Bhander [2023] FedCFamC1F 127 Harman v Secretary of State for Home Department [1983] 1 AC 280 Hearne & Street (2008) CLR 125 Liberty Funding Pty Ltd v Phoenix Capital (2005) 218 ALR 238 Littlefield & Pemble [2023] FedcFamC1A 198 Pace & Halkias [2021] FamCAFC 81 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Division:	Division 2 Family Law
Number of paragraphs:	28
Date of hearing:	13 June 2024
Place:	Melbourne
Counsel for the Applicant	Ms Bonney
Solicitor for the Applicant	Otis Legal
Counsel for the Respondent	Ms Braun
Solicitor for the Respondent	Tartaglia and Associates
Counsel for the Independent Children’s Lawyer	Ms Kildea
Solicitor for the Independent Children’s Lawyer	Victoria Legal Aid

MLC 12238 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS TAUBER Applicant
AND:	MR FARRENS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	24 JUNE 2024