Defries & Kemeny - [2022] FedCFamC1F 13

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Defries & Kemeny [2022] FedCFamC1F 13

File number(s): BRC 10850 of 2013

Judgment of: HOGAN J

Date of orders: 19 January 2022

Date of reasons: 20 January 2022

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application to use affidavits filed in these proceedings in civil proceedings in the Supreme Court of Queensland – Whether the affidavits are subject to the Harman undertaking – Where the content of the affidavits was not the consequence of compulsion – Where the affidavits are not the subject of the implied undertaking – Declaration made in those terms.

Legislation: Family Law Act 1975 (Cth) s 121

Cases cited:
Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq) [2020] FCA 1773

Medway v Doublelock Ltd [1978] 1 WLR 710

Pace & Halkias [2021] FamCAFC 81

R v Silverstein [2020] VSCA 233

Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156; [1998] FCA 1680

Sinnott v Chief of Defence Force [2020] FCA 643

Woods, in the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 19 January 2022

Place: Brisbane

Counsel for the Applicant: Mr Hackett

Solicitor for the Applicant: Evans Brandon Family Lawyers

Solicitor for the First Respondent: Pharmacis Canning Lawyers

Solicitor for the Second, Third, Fourth, Fifth, Sixth & Seventh Respondents: Wilsons The Family Lawyers
ORDERS

BRC 10850 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BINGHAM AS CASE GUARDIAN FOR MS DEFRIES

Applicant

AND:
MR KEMENY

First Respondent

H PTY LTD ACN …

Second Respondent

MS KEMENY

Third Respondent
(and others named in the Schedule)

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

19 JANUARY 2021

IT IS DECLARED THAT:
1.The following affidavits filed in the proceedings BRC10850/2013 are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given:
(a)Affidavit of Ms Defries sworn and filed 10 December, 2013; and
(b)Affidavit of Mr Kemeny sworn (and filed on or around) 4 February, 2014; and
(c)Affidavit of Ms E affirmed 12 February, 2014 and filed 28 February 2014; and
(d)Affidavit of Ms Bingham affirmed 13 February 2014 and filed 28 February 2014; and
(e)Affidavit of Ms E filed 31 July, 2014; and
(f)Affidavit of Mr F filed 1 August 2014 (inclusive of the annexed Single Expert report of Dr G dated 29 July 2014); and
(g)Affidavit of Ms Defries sworn 05 November, 2014 and filed 7 November 2014; and
(h)Affidavit of Ms Defries sworn and filed 13 November, 2014; and
(i)Affidavit of Mr Kemeny sworn and filed 24 November, 2016; and
(j)Affidavit of Mr Kemeny sworn 8 May, 2017 and filed 14 May 2017; and
(k)Affidavit of Mr Kemeny…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Defries & Kemeny

Details

AGLC: Defries & Kemeny [2022] FedCFamC1F 13
Case: [2022] FedCFamC1F 13
Decision Date: 19 January 2022

CaseChat Overview and Summary

In the matter of Defries & Kemeny, the Federal Circuit and Family Court of Australia considered an application to use certain affidavits filed in the proceedings in civil proceedings in the Supreme Court of Queensland. The application was brought by Ms Bingham, as case guardian for Ms Defries, against Mr Kemeny and others. The legal issues before the court were whether the affidavits were subject to the Harman undertaking and if they could be used in the Queensland proceedings.

The court examined the nature of the affidavits and whether they were subject to the implied Harman undertaking, which restricts the use of family law proceedings material in other proceedings. The court found that the affidavits were not subject to the Harman undertaking as the content was not a consequence of compulsion and there was no implied obligation. Hogan J declared that the affidavits listed in the order were not subject to any obligation preventing their use in the Queensland proceedings. This decision allows the affidavits to be used in the Supreme Court of Queensland, providing clarity for the parties involved in both sets of proceedings.

Orders

Orders of the court

BRC 10850 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BINGHAM AS CASE GUARDIAN FOR MS DEFRIES

Applicant

AND:

MR KEMENY

First Respondent

H PTY LTD ACN …

Second Respondent

MS KEMENY

Third Respondent

(and others named in the Schedule)

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

19 JANUARY 2021

IT IS DECLARED THAT:

1. The following affidavits filed in the proceedings BRC10850/2013 are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given:

(a) Affidavit of Ms Defries sworn and filed 10 December, 2013; and

(b) Affidavit of Mr Kemeny sworn (and filed on or around) 4 February, 2014; and

(d) Affidavit of Ms Bingham affirmed 13 February 2014 and filed 28 February 2014; and

(e) Affidavit of Ms E filed 31 July, 2014; and

(f) Affidavit of Mr F filed 1 August 2014 (inclusive of the annexed Single Expert report of Dr G dated 29 July 2014); and

(g) Affidavit of Ms Defries sworn 05 November, 2014 and filed 7 November 2014; and

(h) Affidavit of Ms Defries sworn and filed 13 November, 2014; and

(i) Affidavit of Mr Kemeny sworn and filed 24 November, 2016; and

(j) Affidavit of Mr Kemeny sworn 8 May, 2017 and filed 14 May 2017; and

(k) Affidavit of Mr Kemeny sworn 22 May, 2017 and filed 23 May 2017; and

(l) Affidavit of Ms Defries sworn and filed 8 August, 2017; and

(m) Affidavit of Mr Kemeny sworn and filed 2 July, 2020; and

(n) Affidavit of Ms E affirmed and filed 1 October, 2020; and

(o) Affidavit of Ms Defries sworn and filed 9 October, 2020; and

(p) Affidavit of Mr J Kemeny sworn and filed 9 October, 2020; and

(q) Affidavit of Ms Defries sworn and filed 11 June, 2021.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 10850 of 2013
Judgment of:	HOGAN J
Date of orders:	19 January 2022
Date of reasons:	20 January 2022
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Application to use affidavits filed in these proceedings in civil proceedings in the Supreme Court of Queensland – Whether the affidavits are subject to the Harman undertaking – Where the content of the affidavits was not the consequence of compulsion – Where the affidavits are not the subject of the implied undertaking – Declaration made in those terms.
Legislation:	Family Law Act 1975 (Cth) s 121
Cases cited:	Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq) [2020] FCA 1773 Medway v Doublelock Ltd [1978] 1 WLR 710 Pace & Halkias [2021] FamCAFC 81 R v Silverstein [2020] VSCA 233 Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156; [1998] FCA 1680 Sinnott v Chief of Defence Force [2020] FCA 643 Woods, in the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220
Division:	Division 1 First Instance
Number of paragraphs:	14
Date of hearing:	19 January 2022
Place:	Brisbane
Counsel for the Applicant:	Mr Hackett
Solicitor for the Applicant:	Evans Brandon Family Lawyers
Solicitor for the First Respondent:	Pharmacis Canning Lawyers
Solicitor for the Second, Third, Fourth, Fifth, Sixth & Seventh Respondents:	Wilsons The Family Lawyers

BRC 10850 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BINGHAM AS CASE GUARDIAN FOR MS DEFRIES Applicant
AND:	MR KEMENY First Respondent H PTY LTD ACN … Second Respondent MS KEMENY Third Respondent (and others named in the Schedule)

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	19 JANUARY 2021