Tauber & Farrens
[2024] FedCFamC2F 792
•24 June 2024
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 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;
(c)The Victoria Police; and
(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.
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 HARLAND
The mother seeks the Court’s permission to be relieved from her obligations not to use Court documents from proceedings in this Court in her criminal proceedings. The mother is currently facing a range of serious criminal charges. The complainant with respect to those charges is the parties’ 14 year old daughter X. The application was drawn in incredibly broad terms seeking a range of documents from the 2011 proceedings, 2015 proceedings and current proceedings. It was not clear from the mother’s supporting affidavit, the nature of the charges she faced and the issues in dispute before this Court.
Fortunately, at the commencement of the interim hearing, the parties’ Counsel took a sensible approach and the scope of the dispute narrowed significantly. The mother did not seek any of the documents from the 2011 proceedings and the father no longer opposed the mother’s application with respect to various affidavits that himself, his wife, and the mother have filed previously. The dispute at the interim hearing focused on the expert reports produced in these proceedings by Court Child Expert Ms D and Mr C and documents produced under subpoena. The primary tension between the parties that was the focus of the argument before me was the balance between the protection of X’s rights to privacy, and the mother’s right to defend herself in the criminal proceedings.
The subpoenas in question are to:
(1)The father’s General Practitioner (“GP”), Dr E and the GP’s medical practice at F Medical Centre;
(2)X’s GP, Dr G and the GP’s medical practice at H Medical Centre;
(3)J Medical Centre where X’s psychologist practices; and
(4)Victoria Police.
The subpoenas to Victoria police, the father’s GP and medical practice and X’s GP and their medical practice had been produced and stored by the Court. However, the subpoenas had not been released for inspection, prior to the interim hearing. No documents had been produced by way of subpoena from X’s psychologist at J Medical Centre. In these circumstances, the mother’s Counsel no longer pursued leave in regards to the subpoena to J Medical Centre. As Counsel had not had the opportunity to inspect the subpoenaed material prior to the commencement of the interim hearing, I stood the matter down to enable Counsel to view the subpoena material.
DOCUMENTS RELIED UPON
The applicant mother relied on:
(a)Application in a proceeding filed 10 April 2024;
(b)Supporting affidavit filed 10 April 2024; and
(c)Outline of case filed 11 June 2024.
The respondent father relied on:
(a)Response to the application in proceeding filed 2 May 2024;
(b)Supporting affidavit filed 2 May 2024; and
(c)Outline of case filed 7 June 2024.
The Independent Children’s Lawyer (“ICL”) did not file any documents in preparation for the interim hearing, but her Counsel made helpful submissions. Given the nature of the argument, it was not necessary for the ICL to file documents. The Court was considerably assisted by the work of all parties and Counsel in narrowing the areas of dispute prior to and during the hearing.
THE PARTIES’ RESPECTIVE POSITIONS
The mother pressed the release of the expert reports and the ICL supported the mother’s application in that regard. The father opposed the release of the expert reports.
During the interim hearing, the father consented to the subpoenas regarding his medical records, X’s GP records as well as Victoria Police to be released. The ICL opposed any of the subpoenaed documents being released.
LEGAL PRINCIPLES
Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 states:
(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.
This rule reflects the implied undertaking from Harman v Secretary of State for Home Department [1983] 1 AC 280 that is often referred to as the ‘Harman’ undertaking or ‘Harman obligation’ to not use documents produced or filed in one Court for any other Court proceedings.
The High Court in Hearne & Street (2008) CLR 125 describe what they acknowledged often referred to as an implied undertaking at paragraph 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)
The quote identifies various documents which may be sought which includes documents produced under subpoena.
In Pace & Halkias [2021] FamCAFC 81, the Full Court considered implied undertakings with respect to the release of expert reports. In that case, the appellant sought to use the expert reports in his criminal proceedings. The Full Court also observed that it is not for this Court to consider the admissibility of the documents in the other Court or the purpose for which it may be used as those are matters for the other Court to determine.
The relevant factors to consider in such an application for leave has been discussed in several cases. Wilcox J’s comments in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 are often referred to.[1] The relevant factors to consider may depend on the circumstances but include:-
[1]See also Liberty Funding Pty Ltd v Phoenix Capital (2005) 218 ALR 238, Littlefield & Pemble [2023] FedcFamC1A 198.
(a)The nature of the documents;
(b)How the document came into existence;
(c)Any prejudice to the author of the document;
(d)The commonality of subject matter for the two Court proceedings;
(e)The interrelated relationship of the parties in proceedings;
(f)Whether or not the party seeking the release of the undertaking would suffer disadvantage in the other Court proceedings if leave is refused;
(g)Any inconsistency in the documents in the two proceedings;
(h)Whether or not the content are personal matters and if so, whether or not they are already in the public domain;
(i)Whether the documents could assist the second Court in determining issues of credit;
(j)How the release of documents would assist in achieving justice in the second proceedings.
The purpose of such an undertaking is to protect the parties’ privacy and confidentiality and to encourage full and frank disclosure. The obligation extends beyond the parties to their legal representatives and third parties, including experts. As it is an undertaking to the Court, the Court must be satisfied that it is appropriate to release parties from their undertakings regardless of whether or not the parties seek such release by consent[2]. The Court must be satisfied that special circumstances exist to justify the release from the undertaking. The circumstances do not need to be exceptional.
[2] See Chakora & Bhander [2023] FedCFamC1F 127.
DISCUSSION
The mother’s supporting affidavit provides little assistance in determining these matters as she does not refer to the nature of the criminal proceedings and the issues in dispute in this Court. Fortunately, at the interim hearing, the mother’s Counsel provided a copy of the charge sheets from Victoria police. The mother faces charges where X is the complainant. The nature of the charges are serious. With respect to some of those charges, possible penalties include imprisonment. This is not in dispute.
The mother anticipates that the father and his wife, both of whom have filed affidavits in the family law proceedings will be called as witnesses for the prosecution in the criminal law proceedings. The mother and the father’s case outlines include written submissions. The mother contends that the affidavits and the expert reports will assist in the preparation of her defence as there are common allegations and factual matters in dispute before both Courts. The mother contends that the representations made to experts, the expert opinions and any inconsistent representations will all be relevant, and the mother will be prejudiced in her defence if she is not granted leave to rely on the documents. During the course of argument, all Counsel agreed that both parties should receive leave from their implied undertaking.
I accept the submissions of the mother’s Counsel with respect to the existence of special in this case and that the mother has good reason to seek the use of these documents in support of her defence.
The mother’s case outline quotes from the most recent family report dated 5 September 2023 by Mr C, which also refers to the previous report prepared by the same expert on 17 August 2015 with respect to observations of X being susceptible to leading and erroneously suggestive questioning and how immersed she was in the parent’s conflict. Mr C referred to allegations of maltreatment by the mother, which had been made in the previous proceedings and the current proceedings. He also referred to the allegations as being “in some ways as bizarre as they are extreme, and demand careful forensic and investigation”. Mr C also described positive interactions between X and her mother and referred to X giving a confused and contradictory version of events which were hard to follow. Mr C also referred to the expert psychiatric report of the parties by Dr K and expressed caution about accepting the allegations at face value and the need for evidence to be tested. The extracts from the report made the relevance and commonality of the subject matter and the two proceedings obvious.
The Court must balance X’s rights to privacy against the mother’s rights to mount the best defence she can in the criminal proceedings. I do not accept the father’s Counsel’s argument that X had an expectation of privacy when speaking to the Court Child Expert and the Family Report Writer as it is the usual practice for the experts conducting the interviews to emphasise at the beginning of the interview with the children and the parties that what they say is not confidential and may be included in the report for the Court. The father’s Counsel also argued that the expert reports contain opinions within a specific context which could only have limited relevance and contains confidential information. I do not accept that the fact that the expert reports were prepared for these Court proceedings means that they could have little relevance to the criminal law proceedings. Rather, they go to some of the core issues in dispute. Further, as I noted above what weight is given to the documents and the use of the documents is a matter for the other Court. Given that the father, and his wife and the mother are likely to be called as witnesses for the prosecution, I am comfortably satisfied that it is in the interests of justice for the parties to be able to use the affidavits filed in these proceedings listed in Order 1. I am also satisfied that the parties should be released from their Harman undertaking with respect to the expert reports and the documents produced by the Department of Families, Fairness and Housing (“DFFH”).
In opposing the release of the expert reports, the father’s Counsel stressed X’s vulnerabilities and the fact that she will be a vulnerable witness. This application does not fall under Part VII of the Family Law At 1975. This is not a parenting proceeding, therefore section 60CA, does not apply. Nonetheless, I accept that a relevant and important consideration is X’s best interests, and any prejudice to her in the release of these documents. The father’s Counsel referred to X being a sensitive and mature 14 year old and being diagnosed with Post Traumatic Stress Disorder (“PTSD”) by her doctor. Counsel submitted that any cross-examination of X in the criminal proceedings could be extremely damaging to her. I accept that cross-examination is a stressful and confronting experience particularly when dealing with highly personal and sensitive matters. I also accept that X may be considered a vulnerable witness and that being cross-examined may cause her harm. Ultimately, these will be considerations for the prosecution. The release of these documents may assist in that process. The authorities make it clear when considering whether or not to release parties from their undertakings, it is not this Court’s role to consider how these documents will be used in the other proceedings.
The Court will have its own procedures and protections in place for vulnerable witnesses and that will be a matter for the Court. Given the very serious nature of the charges the mother faces with respect to X, and the commonalities of the allegations and facts in dispute in this Court, I find that it is in the administration of justice to relieve the parties of their implied undertakings with respect to the expert reports.
Turning to the subpoenaed documents, in arguing against their release, Counsel for the ICL pointed out that subpoenas could be issued in the criminal law proceedings and referred to the confidential and sensitive nature of the medical records that were subpoenaed. Counsel for the ICL objected to any of the subpoenaed material being released.
In relation to the documents produced by Victoria police, I accept that the documents produced may well already be before the Court or be placed before the Court at trial. Nonetheless it may be of some assistance to the conduct of those proceedings to know what information from Victoria police was and was not before this Court. I will make orders relieving the parties and their legal practitioners of their implied undertaking for the subpoena to Victoria police.
The medical records are a different category. Whilst I am cognisant of the fact that the father consents to his medical records being released, I have difficulty in seeing what relevance records from his GP and the GP’s medical practice could have in the criminal proceedings. If there is information required, then the mother can request subpoenas to be issued in the criminal law proceedings.
The records produced by X’s GP and the medical practice include references to X disclosing abuse and the referral for a mental health care plan. The ICL’s Counsel argued that in contrast to the expert reports, X was entitled to an expectation of privacy when consulting with medical practitioners. Her GP and her psychologist may be called as witnesses in the criminal proceedings. Again, the mother can seek to issue subpoenas in the criminal proceedings. I am not satisfied that the administration of justice requires the medical records to be released. Access to this information is not closed off to the mother. The mother could seek permission to issue subpoenas in the criminal proceedings and that Court could deal with any objections that may be raised with respect to the documents sought to be produced.
For these reasons I will make the orders set out above, noting that the orders cover the release of the documents for use in the criminal law proceedings which includes Superior Courts in the event those proceedings are transferred from Court, as this will avoid the parties having to make a further application.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Dated: 24 June 2024
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