FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Asenov & Karimi [2023] FedCFamC1F 1105
File number(s): MLC 8288 of 2023 Judgment of: STRUM J Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – where the applicant wife sought to be released from the Harman undertaking in respect of material filed in this Court – where there is was no appearance by or on behalf of the respondent husband – where the second and third respondents do not oppose – where the wife seeks to use the documents in a hearing before the Supreme Court of New South Wales – where the court is satisfied that special circumstances exist – leave granted. Legislation: Family Law Act 1975 (Cth) ss 74, 79, 90AE
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 6.04
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 8(1) and s 5(1)
Cases cited: Canavan & Dowd [2023] FedCFamC1F 207
Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64
Defries & Kemeny [2022] FedCFamC1F 13
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 Limited [2005] FCAFC 3
Pace & Halkias [2021] FamCAFC 81
Plantier & Plantier [2022] FedCFamC2F 840
Re Edelsten (1988) 80 ALR 704; (1988) 18 FCR 434
Re W: Publication Application (1997) 21 Fam LR 788; [1997] FamCA 8
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Springfield Nominees Proprietary Limited v Bridgeland Securities (1992) 38 FLR 217; [1992] FCA 720.
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 10 November 2023 Place: Melbourne Solicitor for the Applicant: Taussig Cherrie Fildes Solicitor for the First Respondent: The First Respondent did not appear Solicitor for the Second Respondent: The Second Respondent did not appear Solicitor for the Third Respondent: The Third Respondent did not appear ORDERS
MLC 8288 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ASENOV
Applicant
AND: MR KARIMI
First Respondent
B PTY LTD
Second Respondent
B2 PTY LTD
Third Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant and her legal advisers be relieved of the implied undertaking provided by the Applicant to this Honourable Court with respect to the use of the following documents produced in this proceeding MLC8288/2023 by or on behalf of the Second and Third Respondent’s documents:
(a)Response to Initiating Application filed on 11 September 2023; and
(b)Affidavit of Ms C filed on 11 September 2023 (exhibits omitted)
AND FOR THE AVOIDANCE OF DOUBT, THE COURT DECLARES THAT the implied undertaking does not apply to the Applicant’s following documents:
(a)Initiating Application on 26 July 2023;
(b)Affidavit filed on 25 July 2023
(c)Financial Statement filed on 25 July 2023;
2.The relief from the implied undertaking referred…
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CaseChat Overview and Summary
The court found that special circumstances did exist as there was no appearance by or on behalf of Mr Karimi and the second and third respondents did not oppose the application. The court noted the importance of allowing the applicant to use the documents in the Supreme Court proceedings. The court was satisfied that the documents were relevant and necessary for the applicant's case in the Supreme Court. The court also considered the potential prejudice to the applicant if the documents were not released, and the public interest in the efficient administration of justice. The court was satisfied that the applicant's need to use the documents outweighed any potential prejudice to the respondents.
The court granted the application and relieved the applicant and her legal advisers of the implied undertaking in respect of the specified documents. The relief was limited to the use of the documents in the Supreme Court of New South Wales proceeding and any adjournment thereof. The court also declared that the implied undertaking did not apply to other specified documents. The application in a Proceeding dated 6 November 2023 was otherwise dismissed. The court's orders were subject to review to remedy minor errors or to record variations.
Orders
Orders of the court
MLC 8288 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ASENOV
Applicant
AND:
MR KARIMI
First Respondent
B PTY LTD
Second Respondent
B2 PTY LTD
Third Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1. The Applicant and her legal advisers be relieved of the implied undertaking provided by the Applicant to this Honourable Court with respect to the use of the following documents produced in this proceeding MLC8288/2023 by or on behalf of the Second and Third Respondent’s documents:
(a) Response to Initiating Application filed on 11 September 2023; and
(b) Affidavit of Ms C filed on 11 September 2023 (exhibits omitted)
AND FOR THE AVOIDANCE OF DOUBT, THE COURT DECLARES THAT the implied undertaking does not apply to the Applicant’s following documents:
(a) Initiating Application on 26 July 2023;
(b) Affidavit filed on 25 July 2023
(c) Financial Statement filed on 25 July 2023;
2. The relief from the implied undertaking referred to in order 1 herein be limited solely to the use of the documents in the Supreme Court of New South Wales proceeding number … presently listed for hearing in late 2023 (and any adjournment thereof) and the Applicant be permitted to provide the said documents to her lawyers in those proceedings and/or to tender them in those proceedings.
3. The Application in a Proceeding dated 6 November 2023 be otherwise 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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