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…
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- [2024] FedCFamC2F 792
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CaseChat Overview and Summary
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;
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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