Tudway and Tudway & Anor - [2015] FamCA 933

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
Family Law Rules 2004 (Cth) r 24.13

Hearn v Street (2008) 235 CLR 125
Thornton & Workcover Corporation of South Australia [2009] FamCA 449

APPLICANT:

Ms L Tudway

1^ST RESPONDENT:

Mr Tudway

2^ND RESPONDENT:

Mrs T Tudway

FILE NUMBER:

SYC

5919

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 1^ST RESPONDENT:

Ms Shevket of Fox and Staniland

COUNSEL FOR THE 2^ND RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE 2^ND 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…

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.

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Details

Case: [2015] FamCA 933
Decision Date: 27 October 2015

CaseChat Overview and Summary

In the Family Court of Australia, Justice Stevenson considered an application by Ms L Tudway, an intervenor, for leave to utilise specific documents from ongoing family law proceedings in separate proceedings before the District Court of New South Wales. Ms Tudway had previously obtained a judgment against the husband in the District Court for personal injuries arising from his sexual assault of her when she was a child. She had been joined as a party to the family law proceedings by consent to secure satisfaction of this judgment debt from the husband's share of the property settlement. The husband had subsequently filed a motion in the District Court seeking to set aside the personal injuries judgment.

The central legal issue before the Family Court was whether to grant Ms Tudway leave, pursuant to rule 24.13 of the *Family Law Rules 2004* (Cth), to search the court record and copy specific documents for use in the District Court proceedings. This involved balancing Ms Tudway's legitimate interest in pursuing her claim against the husband with any privacy rights of the wife.

Justice Stevenson reasoned that Ms Tudway had a legitimate and proper interest in accessing the documents to support her case in the District Court. The Court found that the public interest in the proper determination of Ms Tudway's claim, particularly given the nature of the underlying judgment, outweighed any privacy interests of the wife. Consequently, the Court granted Ms Tudway leave to intervene for the purpose of her application, to search the court record and copy the consent orders of 15 April 2014, the transcript of proceedings on that date, and the husband's affidavit sworn on 24 September 2015. Ms Tudway was also granted leave to utilise these documents in the District Court proceedings, subject to an undertaking to seek suppression and non-publication orders in that court.

Orders

Orders of the court

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.

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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