Tudway and Tudway & Anor
[2015] FamCA 933
•27 October 2015
FAMILY COURT OF AUSTRALIA
| TUDWAY & TUDWAY AND ANOR | [2015] FamCA 933 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application by intervenor for leave to utilise specific documents from these proceedings in the District Court of NSW – Where the husband is serving a term of imprisonment for sexual assault of the intervenor as a child – Where the intervenor has obtained judgment against the husband in respect to an associated personal injuries claim – Where the intervenor was joined as a party by consent in order to satisfy that judgment debt from the husband’s share of the final property settlement – Where the husband has now filed a Notion of Motion in the District Court seeking to set aside the judgment – Consideration of rule 24.13 of the Family Law Rules 2004 (Cth) – Where the Court finds the intervenor to have a legitimate and proper interest – Where the Court finds the public interest in a proper determination of the intervenor’s claim outweighs any right to privacy of the wife – Leave granted. |
| Family Law Act 1975 (Cth) s 121 Hearn v Street (2008) 235 CLR 125 |
| APPLICANT: | Ms L Tudway |
| 1ST RESPONDENT: | Mr Tudway |
| 2ND RESPONDENT: | Mrs T Tudway |
| FILE NUMBER: | SYC | 5919 | of | 2011 |
| DATE DELIVERED: | 27 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Stevenson |
| HEARING DATE: | 22 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lawrence |
| SOLICITOR FOR THE APPLICANT: | Wyatts Lawyers |
| SOLICITOR FOR THE 1ST RESPONDENT: | Ms Shevket of Fox and Staniland |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Eldershaw |
| SOLICITOR FOR THE 2ND RESPONDENT: | Barkus Doolan |
Orders
In so far as is necessary, Ms L Tudway is granted further leave to intervene in proceedings SYC5919/2011 for the purposes of permitting her to make the Application in a Case filed on 14 October 2015 and for the determination of that application.
In so far as is necessary, Ms L Tudway is granted leave pursuant to Rule 24.13 to search the court record and copy documents, being the consent orders of
15 April 2014, the transcript of proceedings on 15 April 2014 and the husband’s affidavit sworn on 24 September 2015.
Ms L Tudway is granted leave to utilise the consent orders of 15 April 2014, the transcript of proceedings on 15 April 2014 and the husband’s affidavit sworn on 24 September 2015 in proceedings … in the District Court of New South Wales.
The Court notes the undertaking of Ms L Tudway to seek orders from the District Court of New South Wales pursuant to the Court Suppression and
Non-Publication Act 2010 (NSW) in relation to the documents identified in orders (2) and (3) hereof.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tudway & Tudway and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5919 of 2011
| Ms L Tudway |
Applicant
And
| Mr Tudway |
1st Respondent
And
| Mrs T Tudway |
2nd Respondent
REASONS FOR JUDGMENT
The proceedings and background
Mr Tudway (“the husband”) and Mrs T Tudway (“the wife”) are parties to litigation concerning property settlement. On 15 April 2014, by consent, I made the following Orders:
1.That for the limited purpose of Orders 1 – 5 herein Ms [L Tudway] be granted leave to intervene in these proceedings.
2.That within 28 days of the final determination of the property settlement applications from the husband’s share an amount be paid to [Ms L Tudway] in full satisfaction of the Judgment Debt Ordered 29.11.13 in proceedings … of the District Court together with interest and costs to the date of payment.
3.That the husband be restrained from receiving his property settlement entitlement, or dealing with or further encumbering this property settlement entitlement until payment to [Ms L Tudway] pursuant to Order 2 herein.
4.That the costs of [Ms L Tudway] be reserved to be determined at the final hearing of the parties Family Law property settlement proceedings.
5.That for the purpose of Order 4 [Ms L Tudway] file an itemised Bill of Costs and submissions within 21 days.
The background facts which appear in these Reasons were extracted from the Case Information document filed by the wife on 14 April 2014 and the affidavit of Mr Mitchell Broom, the solicitor for Ms L Tudway, sworn on
12 October 2015. The Case Information document of the wife was provided to the Court for use during the first day of Less Adversarial Trial proceedings which took place before me on 15 April 2014.
As Docket Judge, I am aware that the wife opposed the application of Ms L Tudway to intervene in the proceedings until 15 April 2014. As Docket Judge, I am also aware that senior counsel for the husband expressed on his behalf during the proceedings on 15 April 2014 a desire to pay the judgment debt in favour of Ms L Tudway, together with associated costs, at the earliest possible opportunity. That course was opposed by the wife.
The husband was born in 1938 and is presently 77 years of age. The wife was born in 1947 and is currently aged 68 years. The parties were married in 1977 and separated on 3 September 2010. A decree of divorce was pronounced by the Federal Circuit Court on 15 December 2011.
In her Case Information document, the wife stated that “between 1964 and 1972 [the husband] committed various criminal offences in the nature of carnal knowledge and sexual assault against one of his children from a prior marriage namely Ms [L Tudway] who was born in 1959”. In August 2013 the husband was convicted of various criminal offences in relation to Ms L Tudway and sentenced to an aggregate term of imprisonment for sixteen years, with a non-parole period of seven years.
On 11 June 2013, Ms L Tudway commenced proceedings for compensation for personal injuries against the husband in the District Court of New South Wales. The husband did not participate in those proceedings and, on 29 November 2013, judgment was entered against him in the sum of $1,214,714.33 plus interest and costs.
On 9 June 2015 the husband filed a Notice of Motion in the District Court of New South Wales by which he seeks orders to set aside the judgment of
29 November 2013 and leave to file a Defence. These proceedings are listed for hearing on 29 October 2015.
On 14 October 2015, Ms L Tudway filed an Application in a Case by which she sought the following orders:
1.Order granting permission to the Intervener to rely upon, produce and tender documents filed in these proceedings and created in relation to these proceedings, to the District Court of New South Wales as part of proceedings case number ...
2.That the documents referred to in Order 1 be limited to the following:
a. Transcript of proceedings before Her Honour Justice Stevenson on 15 April 2014
b. Consent Orders made 15 April 2014
c. Affidavit and Financial Statement of the Applicant Husband filed 24 September 2015.
3.The Court notes that the Intervenor undertakes to apply to the District Court of New South Wales for a suppression and/or non-publication order in relation to the documents relied upon from the Family Court of Australia pursuant to section 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW).
Counsel abandoned the application in relation to the husband’s Financial Statement at the hearing before me on 22 October 2015.
I was informed from the bar table on 22 October 2015 by counsel for Ms L Tudway that the District Court has already made orders in relation to suppression and non-publication of the proceedings. I accept his word, as an officer of the Court, as to the accuracy of that statement.
The application of Ms L Tudway was opposed by both the husband and the wife. The husband’s lawyer informed me of his position in words to the following effect: “There is no issue that [Ms Tudway] was a party and she can use the transcript within section 121”. The husband adopted the same stance in relation to the consent orders of 15 April 2014. He contended that his affidavit of 24 September 2015 was “confidential as between the husband and the wife and should not be used by the intervenor in the District Court”.
The wife strongly opposed the application of Ms L Tudway but, ultimately, she grudgingly conceded that the consent order of 15 April 2014 could properly be utilised in the District Court proceedings. The wife relied heavily on her “right to privacy” in opposition to the application. Further, she maintained that Ms L Tudway is no longer a party to the proceedings in this Court and hence lacked standing to bring the present application. Additionally, she contended that Ms L Tudway and her lawyers improperly obtained documents by way of the Commonwealth Courts Portal.
Consideration
I do not accept that Ms L Tudway is no longer a party to these proceedings and accordingly lacks standing to bring the present application. She has an extant application for payment of her costs which will be determined at the conclusion of the proceedings for property settlement. Additionally, I am of the view that Ms Tudway would be entitled to seek orders from this court at any time to safeguard the rights bestowed upon her by the consent orders of 15 April 2014. If a further grant of leave to intervene were required for any such purpose, I would look favourably upon an application by Ms L Tudway to that effect.
The written submissions on behalf of the wife quoted certain remarks made by me on 15 April 2014 as follows: “and it would prevent her from participating further in the proceedings until – well, at all, really. She will get what money is due to her at the end of the day I would imagine …” It appeared to be contended that I had indicated that Ms L Tudway was no longer a party to the proceedings.
The transcript of proceedings on 15 April 2014 places these comments in context. Discussion took place between counsel and myself as to the desirability of limiting costs and other issues in relation to case management. These discussions took place against a background of senior counsel for the husband repeatedly indicating a desire on the part of his client to pay to Ms L Tudway the money due to her pursuant to the judgment of the District Court. At one point senior counsel for the husband said properly “she is entitled to the fruits of her judgment”.
When I made the orders of 15 April 2014 with the consent of the husband, the wife and Ms L Tudway, it was in no way within my contemplation that the husband would seek to set aside the judgment in the District Court. Nothing which was said on 15 April 2014 gave me any indication that such a possibility was within the contemplation of the husband, the wife or Ms L Tudway.
Counsel for Ms L Tudway referred on 22 October 2015 to a “implied obligation” which was expressed by the High Court of Australia to be as follows in Hearn v Street (2008) 235 CLR 125:
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 of 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…
This “implied obligation” would not appear to apply to the consent orders and the transcript of 15 April 2014, as Ms L Tudway was a party to proceedings at least on that date. The “implied obligation” would not appear to be relevant to the issue of the husband’s affidavit, as he was not compelled to disclose any information contained therein to Ms L Tudway.
Counsel for the wife relied upon section 121 of the Family Law Act 1975 (Cth) in her opposition to the application of Ms L Tudway. I consider, however, that section 121(9)(a) applies to the present circumstances and thus constitutes an exception to the restrictions otherwise set out in that section. Ms L Tudway is obviously “a person concerned in” proceedings in the District Court and seeks to utilise the consent orders, transcript and the husband’s affidavit in her defence of his Notice of Motion.
I am satisfied further that Rule 24.13(1) can be applied so as to permit Ms L Tudway to search and copy documents from the file of this Court. That Rule permits the Court to allow “a person with a proper interest” to “inspect and copy of a document forming part of the court record”. “Court documents” may be “searched, inspected and copied” pursuant to Rule 24.13(2). So much was acknowledged by counsel for the wife in her written submissions.
In Thornton & Workcover Corporation of South Australia (2009) FamCA 449, Dawe J made orders which permitted Workcover to use documents forming part of the record of the Family Court of Australia in another jurisdiction, wherein it was alleged that the husband committed offences of dishonesty.
Her Honour said, inter alia:
82.The Family Court is obliged to apply the principle that there is an implied undertaking or obligation on a person who receives documents knowing that the documents have been obtained because of Family Court proceedings. This undertaking prevents the improper use of those documents.
83.I am satisfied on consideration of all of the authorities that the implied undertaking does not apply, is modified or can be the subject of release by the Court, if the circumstances in which the documents are to be used are such that the public interest is in favour of disclosure rather than in the preservation of secrecy or confidentiality in the information or documents.
84.The Family Court of Australia should exercise its discretion to prevent improper use in appropriate matters. The implied undertaking or obligation may not relate to, or may be the subject of an exception, if the use to which the documents are to be put by that person is one where the public interest in favour of disclosure outweighs the general obligation.
In my view, Ms L Tudway is “a person with a proper interest” for the purposes of Rule 24.13. On 15 April 2014 she consented to orders whereby she was granted leave to intervene in these proceedings on a limited basis, with no indication whatsoever that the husband would seek to set aside the judgment in her favour in the District Court. The husband now seeks to take precisely that step, having commenced proceedings some nineteen months after the entry of judgment.
I consider that Ms L Tudway has a legitimate and proper interest in searching the record of this Court to enable her to most effectively defend the husband’s proceedings in the other jurisdiction. As her counsel submitted, there is “a factual overlap between these proceedings and what is happening in the District Court”.
I am satisfied that there is a public interest in a proper determination of Ms L Tudway’s claim against the husband for compensation for personal injuries. I am of the view that this matter of public interest outweighs any right to privacy of the wife. No evidence or submission on behalf of the wife indicated any intention whatsoever on the part of Ms L Tudway to access information from the file of this Court for any purpose other than the defence of the husband’s Notice of Motion. Nothing at all in the evidence or submissions suggested that Ms L Tudway has any interest in the private affairs or financial circumstances of the wife.
For all of these reasons, I will make orders which will permit Ms L Tudway to utilise the consent orders and transcript of 15 April 2014, together with the husband’s affidavit of 24 September 2015 in the District Court proceedings. In so far as is necessary, I will make an order granting further leave to Ms L Tudway to intervene in the proceedings between the husband and the wife in this Court to achieve that purpose.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on
27 October 2015.
Associate:
Date: 27 October 2015
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