Zarins & Mylne (No 3)
[2013] FamCA 737
•26 September 2013
FAMILY COURT OF AUSTRALIA
| ZARINS & MYLNE (NO 3) | [2013] FamCA 737 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent is seeking leave to provide material from the court file and subpoenaed documentation to his criminal law solicitors for the purpose of defending criminal charges – consideration of the implied undertaking in Harman v Secretary of State for the Home Office [1983] 1 AC 280 – orders made releasing the respondent from the implied undertaking solely for the purpose of criminal proceedings in which the respondent has been charged. |
| Family Law Act 1975 (Cth) s 121 Family Law Rules 2004 (Cth) r 15.27; 24.13 |
| Harman v Secretary of State for the Home Office [1983] 1 AC 280 Holpitt Pty Ltd v Barimu Pty Ltd (1991) 29 FCR 576 Re Springfield Nominees Pty Ltd [1992] FCA 472 Hearne v Street (2008) 235 CLR 125 ACCC v Cadbury Schweppes Pty Ltd [2009] 254 ALR 198 Oates & Q and Anor [2010] FamCAFC 202 Sapphire (SA) Pty Ltd (Trading as River City Grain) v Barry Smith Grains Pty Ltd (in liquidation) [2011] NSWSC 1451 Waldman & Waldman [2013] FCCA 1035 |
| APPLICANT: | Ms Zarins |
| RESPONDENT: | Mr Mylne |
| FILE NUMBER: | ADC | 4802 | of | 2008 |
| DATE DELIVERED: | 26 September 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 23 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Nelson QC |
| SOLICITOR FOR THE APPLICANT: | Belchamber Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Edwardson QC |
| SOLICITOR FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse Mrs Lindsay Legal Services Commission |
Orders
The respondent be permitted to provide the following documents filed herein to the Director of Public Prosecutions, his criminal law solicitors, South Australia Police and the Magistrate’s Court of South Australia (or such superior court as the criminal law proceedings may be referred to:-
(a) Mother’s affidavit filed 17 April 2009;
(b) Mother’s affidavit filed 21 April 2009;
(c) Mother’s affidavit filed 29 April 2009;
(d) Affidavit of Ms H filed 11 May 2009;
(e)Mother’s affidavit affirmed 17 August 2009 and tendered 17 August 2009;
(f) Mother’s affidavit filed 19 August 2009;
(g) Affidavit of Ms H filed 23 October 2009;
(h) Affidavit of Ms H filed 7 May 2010;
(i) Mother’s affidavit filed 11 May 2010;
(j) Mother’s affidavit filed 29 October 2010;
(k) Mother’s affidavit filed 10 February 2011;
(l) Affidavit of Ashley Kent (ICL) filed 9 September 2011;
(m) Affidavit of the mother filed 27 July 2012;
(n) Affidavit of the mother filed 30 July 2012;
(o) Affidavit of the mother filed 3 October 2012;
(p) Affidavit of Ashley Kent (ICL);
(q) Affidavit of mother filed 11 December 2012;
(r) Order dated 21 December 2012;
(s) Mother’s affidavit filed 19 April 2013;
(t)Affidavit of Ashley Kent (ICL) annexing report of Dr I dated 22 May 2013;
(u) Affidavit of the mother filed 17 June 2013;
(v) Affidavit of the mother filed 19 June 2013;
(w) Affidavit of the mother filed 15 July 2013;
(x) Affidavit of Ashley Kent (ICL) annexing report of Dr C dated 26 July 2013;
(y) Affidavit of mother filed 20 September 2013;
(z) Affidavit of Ashley Kent (ICL) filed 15 September 2013.
The application in a case filed 4 July 2013 be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne 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 ADELAIDE |
FILE NUMBER: ADC 4802 of 2008
| Ms Zarins |
Applicant
And
| Mr Mylne |
Respondent
REASONS FOR JUDGMENT
Introduction
By application in a case filed 4 July 2013, the respondent seeks orders as set out in Part D of the “said application” but insofar as they relate to this judgment, the following orders are sought:-
4.That pursuant to Section 121 (9) (a) and (g) of the Family Law Act (1975) as amended, the father be permitted to provide to his criminal law solicitors, South Australian Police and the Magistrates Court of South Australia (or such superior court as the criminal law proceedings may be referred to):-
4.1 All affidavit material filed herein; and
4.2 All court orders, judgments and transcripts herein;
5.That pursuant to Rule 15.27 (2) (b) of the Family Law Rules 2004, that the father have permission to provide to his criminal law solicitors, South Australian Police and the Magistrates Court of South Australia (or such superior court as the criminal law proceedings may be referred to) all subpoenaed notes, documentation and files from:-
5.1 [Dr G];
5.2 South Australian Police in relation to the mother;
5.3 … Hospital;
5.4 [Mr L] (Counsellor);
The matter came before me on 23 September 2013 in respect of the said application but also an amended application in a case of the applicant filed 15 July 2013 with as its principal focus parenting orders sought by the applicant in respect of the infant child B born in 2007. At the conclusion of submissions I reserved judgment in respect of the parenting issues and adjourned further consideration of the said application generally, but in particular paragraphs 4 and 5, to 25 September 2013.
Notwithstanding the intimation by senior counsel for the applicant that whilst there was no consent to the orders sought in paragraph 4 and 5 of the said application, there would be no submissions made in opposition to the orders sought on behalf of the father and accordingly, it was left to senior counsel for the respondent to put forward proper argument in support of the orders sought.
I made some initial remarks that I did not think that Section 121 (9) of the Family Law Act 1975 (Cth) was applicable. I also made comment that the breadth of the documents sought to be caught under paragraph 4.1 and 4.2 of the said application were too wide and the relevant documents would need to be the subject of identification and particular description.
The orders sought in paragraph 5 of the said application involves a consideration of Rule 15.27 but as will be discussed in these reasons, it is a matter that requires consideration of the application of the Harman implied undertaking.
Accordingly, senior counsel for the respondent proposed that during the short adjournment a list of the documents to be the subject of paragraph 4 would be prepared. On the 25 September 2013 a settled list of documents was provided. Senior Counsel for the respondent abandoned the other application in respect of paragraph 5 of the said application. Notwithstanding that I now make orders which will see the release of the specified documents, as referred to in paragraph 4 of the said application in circumstances where whilst there is no consent, there is no active opposition from the applicant, nonetheless it is appropriate that short reasons be published.
Background
The proceedings involve the competing applications of the parties in respect of the parenting arrangements of the infant child B born in 2007.
The parties commenced their cohabitation in early 2006 and separated in early 2008. Proceedings were issued in 2008 and the matter was listed for final hearing before Federal Magistrate Simpson (as he then was) on 14 May 2010. It is significant that the mother made certain false representations during the trial before the Federal Magistrate, namely:-
(1)That she had cancer;
(2)That she falsified a medical certificate purporting it to have been prepared by her general practitioner Dr K; and
(3)That the father of her eldest child J (not the biological child of the parties) was dead.
As will be seen, ultimately the mother has admitted the false representations, principally in her recent trial affidavit filed 21 June 2013, but also in other documents that form part of the court record.
The proceedings were listed for final hearing before Macmillan J on 23 July 2013. As part of the said application the respondent sought orders that the trial date be vacated and that the proceedings be adjourned to a date pending the finalisation of criminal law proceedings brought against him. Specifically, on 31 May 2013 the father was charged with three counts of rape with the mother as the alleged victim. The offences allegedly occurred in 2008 and whilst it is not germane to the determination of this application, it appears that the allegations of rape allegedly arose from disclosures made by the mother’s son of a former relationship namely J born in 1997.
The respondent entered into a bail agreement on 31 May 2013, has engaged solicitors to represent him in respect of the criminal charges and the criminal proceedings to date remain unresolved. By affidavit filed 4 July 2013 in support of the said application the respondent seeks the effective release of documents from the court record for the express purpose of producing them initially to his criminal solicitors, but with the potential that they will be used as part of negotiations with the South Australian Police and then if the criminal charges are ongoing, will presumably form part of the court proceedings in the Magistrates Court of South Australia, and potentially a superior court. In summary, the father asserts that “such documentation is directly relevant to the criminal law charge and the mother in defence of those proceedings”.
The following paragraphs appear in the respondent’s affidavit in support of the said:-
8.I seek orders that I be permitted to provide copies of all affidavit material filed herein, all court orders, judgments and transcripts herein to my criminal solicitors, to the South Australian Police and the Magistrates Court of South Australia (or such superior court as the criminal law proceedings may be referred to).
9.I also seek orders that I be permitted to provide to my criminal solicitors, to the South Australian Police and to the Magistrates Court of South Australia (or such superior court as the criminal law proceedings may be referred to) copies of all documentation, files and notes produced under subpoena by:-
9.1[Dr G];
9.2South Australian Police in relation to the mother;
9.3… Hospital;
9.4Mr L (Counsellor).
I have already determined that the category of documents needs to be the subject of better particularity. As currently drafted every document on the court record would be caught.
The genesis of the application is best exemplified by the following extract from the mother’s trial affidavit filed 21 June 2013:-
5.On the first day of trial of my current application, my then counsel requested that the court issue a certificate pursuant to the Evidence Act in relation to certain evidence I would give in the witness box. Annexed hereto and marked “A” is a copy of the transcript of the first day of trial and I refer to pages 25 line 10 to 28 line 10 inclusive wherein the issue of a certificate is requested.
6.The evidence in question related to:-
(a)my false representations to the respondent, to health professionals and to this court that I had suffered or was suffering from a cancerous condition;
(b)a medical certificate purporting to be a certificate of [Dr K] dated 9 April 2009, which I falsified and filed in this court in support of my representation that I had suffered from a cancerous condition;
(c) my false representations to [Dr C] and to this court that the father of my first child [J] was deceased, including a photograph which forms Annexure “L” to my affidavit of 11 May 2011 filed in this court, which photograph purported to be of a tomb stone of [J’s] father.
7.I believe that I have given evidence in this court on the first day of trial in relation to these matters and that a certificate pursuant to Section 128 of the Evidence Act 1995 had issued. Upon reading court transcripts of October 29 2012 and February 25 2013, I realised that I did not give evidence in relation to these. My counsel made some submissions, but I did not give evidence. The short summary is that the particular representations made were demonstrably false and were known to be so by the mother at the time that they were made.
Subject to better particularity, it is immediately apparent that the falsity of the mother’s representations, the manner in which they were made and the documents and transcripts in which they appear and/or reference is made to them, have an obvious focus and relevance to the conduct of the criminal proceedings in which the respondent finds himself involved.
I have little difficulty in acceding to the general proposition of the respondent that appropriate orders should be made for particular targeted documents that form part of the court record and the subpoenaed material be released.
The Law
Section 121 provides:-
121 (1) a person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:-
(a)a party to the proceedings;
(b)a person who is related to, or associated with a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings; is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
Paragraph 4 of the said application in a case seeks the effective release of documents pursuant to Section 121 (9) (a):-
The proceeding provisions of this section do not apply to or in relation to:-
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(g)publication of accounts of proceedings, where those accounts have been proved by the court.
As I have indicated, I am not necessarily persuaded that Section 121(1) is applicable to the purpose for which the respondent seeks the documents namely, to assist in the defence of the criminal proceedings brought against him.
Senior counsel for the respondent referred to the decision of the Full Court in Oates & Q and Anor [2010] FamCAFC 202 in particular at paragraph [106]–[107].
106.Section 121 of the Act was considered by the Full Court in Re W:- Publication Application [1997] FLC 92-756 in the context of determining whether a judgment of the court could be provided to Child Welfare Authorities. The Full Court determined that the child representative did not need the leave of the court to forward a copy of the judgment to relevant welfare authorities as such authorities were not “a section of the public” within the meaning of Section 121 (1). Fogarty and Baker JJ said this at 84,260:-
Accordingly, the transmission envisaged here would not be
2.“the public” or
2(a)“a section of the public”
and would not be in breach of Section 121. Therefore, no order of the court is required to grant a dispensation from the provisions of Section 121 and, for similar reasons, neither would the Registrar’s transmission of a judgment under Section 67 ZA (3) or a Judge’s transmission of a judgment to the Attorney-General’s Department breach Section 121.
107.In Oscar & Traynor [2008] FamCAFC 158 the Full Court (May, Thackray and Benjamin JJ) dealt inter alia, with an appeal from an order that a judgment be provided to the Director of a Contact Centre. The Full Court endorsed the approach of the court in Re W:- Publication Application. Further, the Full Court said that the principle in that case is not restricted to “Child Welfare Authorities”.
In support of the reference to Section 121 (9)(a) and to a lesser extent (g), senior counsel for the respondent referred to the decision of Waldman & Waldman [2013] FCCA 1035 where Lapthorne J said at page 10:-
Section 121 (ix) (a) was substituted in 1983 for the former Section 121 (5) (a) which, in relevant respects, was in almost identical terms. In R v Howe (1978) 19 SASR 303; 4 Fam LR 166 the Court of Criminal Appeal of South Australia held that the former Section 121 (5) (a) operated so as to exclude from the operation of the former Section 121 (1) which was in terms not dissimilar to Section 121 (1) of the Family Law Act in its present form, a reference to counsel as to evidence given in proceedings in the Family Law Court by persons against whom proceedings were subsequently brought in the criminal court. I respectfully agree with this decision. In Howe, the Court held that the phrase “person’s concerned in the proceedings” in Section 121 (5) (a) were apt to include, inter alios, judge, counsel, reports and any members of the public present in court. Section 121 (9) (a) was inserted into the Family Law Act after Howe’s case was decided. I think it is plain that the legislature must have intended that Section 121 (9) (a) should give the same immunity from prosecution as was given by the almost identical provision which it replaced. It therefore seems to me that if the answers given by Mrs Edelsten disclose something that appears in the transcript in the Family Court, she would be protected by Section 121 (9).
Whilst I respectfully agree with the comments by His Honour, I am not persuaded that Section 121 (9) (a) and (d) have application to the current case. Whilst it is possible and perhaps probable that in the criminal proceedings there will be reference made to evidence, assertions and/or submissions that arise in the Family Court proceedings, nonetheless, the focus of the application in a case is directed to, initially:-
·All affidavit material filed herein; and
·All Court orders, judgments and transcript herein and following my intimation a more particularised list of documents that are contained on the court record.
Whilst not specifically raised by senior counsel for the respondent, I am also satisfied that the determination of the issue does not involve considerations that arise under Rule 24.13 of the Family Law Rules 2004 (Cth) namely, a rule dealing with the category of persons who may search a court record, inspect same and copy a document that forms part of the court record. To a very large degree the documents that are sought to be used by the respondent are in his possession in any event, or if not then he is clearly a person who would have access to the court record on the basis that he has a proper interest.
I have then had regard to whether the said application both in respect of the category of documents sought in paragraph 4, but also the subpoenaed material referred to in paragraph 5, raises the issue of the “implied undertaking” arising out of decision in Harman v Secretary of State for the Home Office [1983] 1 AC 280. The nature of the implied undertaking was the subject of comment by the High Court in Hearne v Street (2008) 235 CLR 125 at 154:-
Where one party to the litigation is compelled, either by reason of a rule of court, or by reason of a specific order 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.
Where a person is obliged by the court process to produce documents or information, issues of confidentiality are to be balanced against the public interest of the integrity of the court process. The Family Law Act 1975 (Cth) promotes full and frank disclosure both by reference to the discovery process but also in terms of information sought by subpoena. Rule 15.27 of the Family Law Rules 2004, namely:-
1.This Division applies to a subpoena to production;
2.A person who inspects or copies a document under these Rules or an order must:-
(a)Use the document for the purpose of the case only; and
(b)Not disclose the contents of the document or give a copy of it to any other person without the Court’s permission
would seem to have its’ foundation in the Harman undertaking. In Hearn the
High Court considered the extent of the implied undertaking as follows:-
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 (93), to disclose documents or information, the party obtaining the disclosure cannot, without leave of the Court, use it for any purpose other than that for which it was given unless it is received into evidence. The type of material disclosed to which this principle applies includes documents inspected after discovery (94), answers to interrogatories (95), documents produced on subpoena (96), documents produced for the purpose of taxation of costs (97), documents produced pursuant to a direction from an arbitrator (98), documents seized pursuant to an Anton Piller order (99), witness statements served pursuant to a judicial direction (100), and affidavits (101).
The extent to which the Harman undertaking applies to affidavits (notwithstanding the inclusion of this category of documents by the High Court in Hearne), has been the subject of more recent judicial consideration. In Harman at 308 Lord Diplock said:-
The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself;
It is an inroad that calls for safeguards against abuse, and these the English Legal System provides … through its’ rules about abuse of process and contempt of court.
Accordingly, it is the coercive nature of the obligation imposed by the court for parties to disclose documents and to make full and frank discovery, that is the foundation of the implied undertaking.
In the decision of Re Springfield Nominees Pty Ltd [1992] FCA 472, the Court was faced with the decision as to whether a witness statement filed on behalf of a party pursuant to a court direction but not tendered, was caught by the implied undertaking. Wilcox J said at paragraph [21]:-
I respectfully agree with McPherson J. In addition to the points made by His Honour I add that a witness statement fulfils a function very similar to that of an affidavit or an admission of fact. In this court there is a rule (Order 46 Rule 6) limiting the documents on court files which may be inspected without leave of the court or a judge. They include affidavits, interrogatories and answers to interrogatories, lists of documents given on discovery and admissions. All are documents brought into existence for the purpose of the instant litigation which may contain confidential or personal information and which may, or may not, be ultimately read in open court. There is every reason for subjecting their use to the same constraints.
Accordingly, it can be said that a witness statement and an affidavit are not dissimilar in the purpose for which they are intended namely, the presentation of evidence in the case of an affidavit and the intention and/or expectation that the witness statement will be given as evidence in the proceedings.
In ACCC v Cadbury Schweppes Pty Ltd [2009] 254 ALR 198 at paragraph [76] the Full Court said:-
The Harman principle seems to be us to be the principle to apply in the case of disclosure to an opponent pursuant to a rule of court, or court direction, not by recourse to principles of litigation privilege. If the principles are as we have stated them, then the argument that the finalised proof of evidence did not attract legal professional privilege is to be readily accepted. Whilst clearly created for the purpose of existing litigation, they were created to be served on visy, the opponents in adversarial litigation, and thus no privilege could arise. However, the principle of Harman (as explained by the High Court in Hearne) would provide the protection needed so that the information contained in the finalised proofs of evidence could not be misused.
In Sapphire (SA) Pty Ltd (Trading as River City Grain) v Barry Smith Grains Pty Ltd (in liquidation) [2011] NSWSC 1451, the court said at paragraph [188]:-
An implied undertaking would therefore be likely to apply to material put before the tribunal from the other arbitration proceedings or at least if the statutory declaration had been made under some form of compulsory process or in an equivalent situation (such as by reason of a direction of the tribunal in that other arbitration)… a statutory declaration or affidavit made simply for the purpose of evidence in a hearing without such compulsion would not necessarily attract the undertaking.
Accordingly, the focus of the court in Sapphire is as to the compulsory nature of the affidavit material.
I consider that the filing of affidavits in this matter in anticipation of both interim hearings but in particular a final determination (notwithstanding that the final hearing was ultimately vacated) were pursuant to orders of this Court to ensure that the matter was prepared and made ready for trial. It is an integral part of the court process in Family Court proceedings that evidence in chief will primarily be given by affidavit and it is a common feature of trial directions that affidavit evidence of all witnesses upon which a party intends to rely must be filed in accordance with the directions of the Court.
Accordingly, I find that all of the category of documents together with the subpoenaed documents (an including the specified affidavits) to be documents to which the Harman implied undertaking applies.
Accordingly, an application for leave to be released from the implied undertaking must be made. The test is to whether leave should or should not be granted has been the subject of significant judicial consideration, but in summary, regard must be had to any injustice caused to a party giving discovery and special circumstances should exist. In Springfield Nominees the Court said at paragraph 22:-
It will be recalled that in Crest Lord Oliver spoke of the need for “special circumstances” if leave was to be granted.
Later in the same judgment Wilcox J further commented on the expression “special circumstances”:-
For special circumstances to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant.
Burchett J discussed this requirement in Holpitt Pty Ltd v Barimu Pty Ltd (1991) 29 FCR 576 at 578-578. His Honour pointed out that the question in Crest was whether leave ought to be granted to use the discovered documents in contempt proceedings. He commented at 578 that:-
In those circumstances it is easy to understand why it may have been thought the reasons required to be cogent and persuasive.
His Honour went on:-
As far as the expression special circumstances is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? “Special” is one of those words which derives almost all of their meaning from the context…if all that is required is that, among the great number of cases in the Court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstances to suggest otherwise.
As already discussed, the purpose for which the documents are to be used are in respect of criminal proceedings which involve the mother as the alleged victim. It is predominantly her affidavit material and the collateral and associated documents for which leave to be released from the implied undertaking is sought. I consider that there exists “special circumstances” which would justify a release from the implied undertaking.
Conclusion
It is axiomatic that the application in a case for leave to be released from the implied undertaking is only for the purpose of criminal proceedings in which the respondent has been charged. The release is for no other purpose and to that extent the undertaking continues to bind the respondent and his advisors save as to the limited purpose as discussed. Accordingly, I grant the application of the respondent.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 September 2013.
Associate:
Date: 26 September 2013
4
7
2