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Parties Seek Leave to Disclose Documents in Parenting Proceeding

Allison & Tripp [2022] FedCFamC1F 309 (10 May 2022)

The father seeks leave to disclose material produced on subpoena in this Court to legal representatives and a foreign court for the purposes of parenting proceedings in Country B.  The Court, in determining whether or not a grant of leave would be in the interests of justice, assessed the applicability of the power to grant leave.  The mother made the decision to remain in Country B with the child due to work opportunities while the father returned to Australia.  The father commenced proceedings seeking parenting orders. 

Facts:

These are proceedings between the Applicant Father, Mr Allison (“the father”) and Ms Tripp (“the mother”) concerning their child, X, born in 2011 (“the child”).  In January 2019, the mother relocated to Country B, having taken what was intended to be a one-year secondment with her company.  The father and child joined the mother in around March 2019.  The mother was offered permanent, full-time employment in Country B in December 2019, which she accepted.  In July 2020, the parties entered into an interim agreement concerning the child.  The father returned to Australia shortly after as he had no income nor family support to enable him to remain in Country B.  Due to restrictions on travel caused by the Covid-19 pandemic, the child was unable to accompany the father.

The child is an Australian citizen, although he was issued a residency permit for Country B which expires on 1 February 2025.  The parties’ had an interim parenting agreement which expired on 30 June 2021.  Accordingly, the father commenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 8 September 2021 seeking orders for the child to return and live in Australia.  The child has been residing in Country B since April 2019, which has led to a possible issue of jurisdiction. 

On 14 December 2021, the ICL filed an application in a proceeding raising the issue of the child’s habitual residence under s 111CD of the Act, and thus, whether this court has jurisdiction to make orders concerning the child.  Initially, the father argued that the court did have jurisdiction because the child was habitually resident in Australia, and alternatively that the court had jurisdiction under ss 111CD(1)(c)(v) and 111CD(3) of the Act due to concurrent divorce proceedings.  In the alternative, he argued the court should assume jurisdiction.  The mother disputed that the child was habitually resident in Australia and sought dismissal of the father’s application.

During the interim hearing, the parties made consent orders for the father to discontinue his Initiating Application filed on 8 September 2021, as well as for all extant applications and responses in relation to that application to be dismissed.  However, it was anticipated that there would be proceedings commenced in the Country B courts concerning the child.  The parties therefore raised a new dispute, namely whether the father should be permitted to utilise documents produced on subpoena in these proceedings, in proceedings that are anticipated in a Country B court. 

Orders were made by consent on 18 March 2022 for a document setting out proposed Consent Orders and notations marked as Exhibit "A".  Orders and notations were ordered to be made in accordance with Exhibit "A".  By no later than close of registry filing on 21 March 2022, the applicant father was to file and serve any written submissions of no longer than 3 pages in support of an order permitting utilisation of documents produced on subpoena in these proceedings, in proceedings that are anticipated in a court of Country B, with such submissions to include a precisely formulated form of order which is proposed.  By no later than close of registry filing on 28 March 2022, the respondent mother was to file and serve any submissions in response.

The father points out that there are a number of legal restrictions on the release of material used in proceedings in this Court.  The father argues that it is in the interests of justice for leave to granted because the critical forensic importance of the Subpoenaed documents as discussed herein and commonality in subject matter between the Australian Proceedings and future Country B’s proceedings and interested parties, ought weigh heavily in favour of acceding to the application.  It is submitted the making of the order(s) sought, given the special feature involving an international dispute, and where there appears to be no international treaty or means by which an Order or subpoena issued in Country B would be binding here in Australia on an Australia Government Department such as C Organisation.

Issues:

I. Whether or not the limitations on the use of the material are appropriate.

II. Whether the Court should make the orders sought by the father. 

Applicable law:

Family Law Act 1975 (Cth) s 111CD(3) - provides that a court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if: (a)  one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and (b)  one or both of the parents have parental responsibility for the child; and (c)  the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.

Family Law Act 1975 (Cth) s 117(1) - provides that subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

Family Law Act 1975 (Cth) s 117(2)c - provides that the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters. 

Family Law Act 1975 (Cth) s 121 - restricts the publication or dissemination of information and documents, save for specified exemptions or with approval of the Court.

Harman v Secretary of State for the Home Department [1983] 1 AC 280 - provides that there is an implied undertaking to the Court not to disclose documents or information for any purpose other than for which it was given, save where it has been received into evidence, or where the common law and the Rules provide that parties can be released from the undertaking with the permission or leave of the Court.

Hearne v Street (2008) 235 CLR 125[2008] HCA 36 - where the High Court made clear that the Court may grant leave for documentary material disclosed in this Court, to be used in a different Court.
 
R Pty Ltd (Trustee for Fletcher Trust) & Jones (2016) 56 Fam LR 445[2016] FamCA 928 - where Carew J found at [71] that it would be, notwithstanding the implied undertaking, “...plainly in the interests of justice that each party be at liberty to use the documents in the new Supreme Court proceedings”. 

Analysis:

The power to grant leave applies with respect to documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.  In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs.  If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just.  

Consent orders also provided for the parties to each pay 50 per cent of the ICL’s costs, fixed in the sum of $1,650 each.  The mother was to file written submissions in support of any application for costs within 14 days of 18 March 2022.  This time has now passed.  The father filed written submissions on 19 April 2022, together with a supporting affidavit.  However, the father merely sought an order consistent with the terms of s 117(1).  

There is no reason to depart from the general rule under s 117(1) of the Act.  Neither party sought an order for costs in their favour. 

Conclusion: 

The parties are granted leave to disclose the documents produced to the Sydney Registry of this Court to: (a) any legal representatives of either party; (b) any Court in Country B, and in relation to any family law proceedings commenced with respect to the child, X; and (c) any Country B Court appointed expert(s) in relation to any proceedings relating to the child, commenced in a Court in Country B for the limited purpose only of use in any family law proceedings commenced or anticipated to be commenced in Country B.  The parties are released from any implied undertakings not to disclose the Documents.  The Court directs that the Documents remain on the court file until the child attains the age of 18.  The leave granted in Order 1 is conditional upon: (a) the father and the mother providing a written undertaking to this Court prior to the release of any of the Documents, that except for the limited purpose in Order 1 above: (i) that they will not disseminate or otherwise distribute electronic copies of the Documents; and (ii) upon inspecting the Documents, each party and their legal representatives, including those in Country B, will ensure that the Documents held in their possession are destroyed and permanently deleted from any of their storage or retrieval systems (whether held by email, cloud storage or otherwise) on conclusion of the proceedings in Country B; and (b) the father and mother procuring a written undertaking to this Court prior to the release of any of the Documents from their legal representatives, including those in Country B, in the same terms as the undertaking set forth in Order 4(a).  The parties are to do all things and sign all documents necessary to obtain an order, direction or the equivalent from a Court in Country B, not to disseminate or otherwise publish the Documents except for the limited purpose in Order 1 above.

Conclusion in Allison & Tripp (No 2) [2022] FedCFamC1F 310 (10 May 2022)

There will be no order as to costs.  

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