Zarins & Mylne (No 3)

Case [2013] FamCA 737

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

  1. 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…

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AGLC
Zarins & Mylne (No 3) [2013] FamCA 737
Case
[2013] FamCA 737
Decision Date

CaseChat Overview and Summary

In *Zarins & Mylne (No 3)*, Berman J of the Supreme Court of South Australia considered an application by the respondent concerning the disclosure of certain documents filed in family court proceedings to various criminal justice bodies. The dispute centred on whether the respondent should be permitted to provide a list of specified affidavits and orders to the Director of Public Prosecutions, their criminal law solicitors, South Australia Police, and the Magistrate’s Court of South Australia, or any superior court to which criminal proceedings might be referred.

The primary legal issue before the court was whether to grant permission for the disclosure of these documents, which were filed in the context of family law proceedings, to agencies involved in potential or ongoing criminal proceedings. This involved balancing the need for confidentiality in family law matters against the public interest in the administration of criminal justice and the potential relevance of the disclosed documents to criminal investigations or prosecutions.

Berman J determined that the respondent should be permitted to provide the listed documents to the specified criminal justice bodies. The court's reasoning, though not explicitly detailed in the provided text, implies a finding that the public interest in facilitating criminal investigations and prosecutions outweighed the usual confidentiality protections afforded to family court documents in this specific instance. The court also ordered that the application filed on 4 July 2013 be otherwise dismissed.

Orders

Orders of the court

1.

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.

2.

The application in a case filed 4 July 2013 be otherwise dismissed.

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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