FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vossen & Vossen [2024] FedCFamC1F 485
File number: SYC 4893 of 2024 Judgment of: CAMPTON J Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the parties were engaged in parenting proceedings in which judgment was delivered and final orders made in 2019 – Where each of the single forensic psychologist expert’s report and the mother’s trial affidavit that the father seeks leave to utilise were both adduced in evidence at the trial – Where the father seeks to use of these documents and the non-anonymised reasons for judgment from in his response to the Office of the Children’s Guardian, or any review process, or any appeal proceedings, relating to his holding of a Working With Children Check – Where the mother opposes the relief sought and seeks an injunction restraining the father from providing a copy of her trial affidavit to any third party – Where the father makes reckless submissions – Where one purpose of obtaining leave to use the documents sought is to reengineer the findings of fact contained in the 2019 judgment – Where the evidentiary foundations relied upon by the father to support leave are deficient – Where the father does not engage with any consideration as to the interests of the children – Application dismissed save as to leave granted for the father to use the anonymised published reasons for specific purposes – Orders made as to the filing of material for costs. Legislation: Family Law Act 1975 (Cth) Pt XIVB, ss 114N, 114S, 114Q
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Child Protection (Working with Children) Act 2012 (NSW) s 17
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04
Cases cited: Chakora & Bhander [2023] FedCFamC1F 127
Commissioner of Taxation & Darling (2014) FLC 93-583
Earnshaw & Farella(No 2) [2022] FedCFamC1F 1020
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Littlefield and Pemble [2023] FedCFamC1A 198
Pace & Halkias [2021] FamCAFC 81
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Vossen & Vossen [2019] FamCA 188
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 18 July 2024 Place: Sydney Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Longworth Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 4893 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VOSSEN
Applicant
AND: MS VOSSEN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.The applicant has leave to provide the anonymised published judgment as Vossen…
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CaseChat Overview and Summary
The legal issues before the court were whether the father could use the specified documents for the purposes outlined and if an injunction should be granted to prevent the mother's affidavit from being shared. The court had to consider the implications of the Harman Undertaking, the Family Law Act 1975, and the Family Law Rules 2021.
The court found that while the father's request to use the documents was motivated by the need to respond to allegations affecting his employment, his submissions were reckless. The court also determined that the father's purpose in obtaining leave was to reengineer the findings of fact from the 2019 judgment, which was not permissible. Additionally, the father failed to adequately consider the interests of the children. Consequently, the court dismissed the father's application, except for granting him leave to use the anonymised published reasons for judgment for specific purposes related to his response to the Office of the Children's Guardian. The court also refused the mother's request for an injunction and made orders regarding the filing of material for costs.
The court's decision highlights the importance of adhering to legal obligations and the need to balance the interests of the parties involved in family law proceedings. The father was permitted to use the anonymised reasons for judgment for specific purposes, but the court did not allow the use of the mother's trial affidavit or the forensic psychologist's report for reasons related to the father's employment.
Orders
Orders of the court
SYC 4893 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR VOSSEN
Applicant
AND:
MS VOSSEN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1. The applicant has leave to provide the anonymised published judgment as Vossen & Vossen [2019] FamCA 188 identifying he as the respondent father in that proceeding to the Office of the Children’s Guardian (“the Office”) only for the purposes of:
(a) Responding to the notice he received issued 1 March 2024 by the Office; and
(b) Should his response by unsuccessful, for the internal review of the determination by the Office; and
(c) Should the internal review be unsuccessful, in the administrative appeal process from the internal review determination by the Office.
2. The Initiating Application filed 26 June 2024, save as to costs, is otherwise dismissed.
3. The Application in a Proceeding filed 26 June 2024 is dismissed.
4. The Response to an Initiating Application filed 16 July 2024 is dismissed, save as to costs.
5. If either party seeks an application for costs, they are to file any affidavit material in support and written submissions within 14 days of the date of these orders.
6. Should either party file material in accordance with Order 5, the other party is to file any affidavit material in response and written submissions within 14 days thereafter.
7. In the event neither party files material pursuant to Order 5, each party’s application for costs is dismissed.
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The authorities at general law do not import words of limitation to the discretion to be exercised. That discretion is appropriately wide to fit the circumstances of each set of facts.CONSIDERATION The orders made by Rees J are not restricted by the implied undertaking or the Rules (Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020 at [40]).The Father’s categorisation of the three documents for which leave is sought The father submits that the mother’s trial affidavit does not attract the implied undertaking, as it was received into evidence at trial. I do not accept that submission. Justice Schonell in Chakora said:11The implied undertaking finds its expression in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 6.04 of the Rules of Court is in the following terms:6.04 Use of documents (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. …20It is clear, from what their Honours identified in Hearne v Street, that an affidavit is covered by the implied undertaking. Parties are required in parenting matters before the Court to file applications and responses, are directed to file Case Outlines, and are compelled to file documents such as a Notice of Child Abuse, Family Violence or Risk. I am satisfied in those circumstances that such documents attract the implied undertaking. The use of the mother’s affidavit, by reason of the rule, takes it outside the exception in Hearne (Commissioner of Taxation & Darling (2014) FLC 93-583 at [112]). The father initially submitted that: …the Expert report falls within the exception under section 114N where it is to a person (or body) with a significant legitimate interest in the subject matter. This is clear from the reliance on the judgement as reported to WWCC by the DCJ as references in their show cause letter to the applicant. Section 114N is a simplified outline of Pt XIVB of the Act. That section itself is not a head of power to obtain leave of the character sought by the father. What was s 121 of the Act has been replaced by s 114Q. It provides:114Q Indictable offence—communication to the public of account of proceedings that identifies parties or others involved in proceedings(1) A person commits an indictable offence if:(a)the person communicates to the public an account of proceedings under this Act; and(b) the account identifies:(i) a party to the proceedings; or(ii) a witness in the proceedings; or(iii)a person who is related to, or is associated with, a party to the proceedings; or(iv)a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.Penalty: Imprisonment for 1 year.(2)Subsection (1) does not apply if the communication is:(a) in accordance with a direction of a court; or(b) otherwise approved by a court.