Halkias & Pace

[2021] FCCA 1062

FEDERAL CIRCUIT COURT OF AUSTRALIA

Halkias & Pace [2021] FCCA 1062

File number(s):

MLC 2969 of 2017

Judgment of:

JUDGE BECKHOUSE

Date of judgment:

14 May 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – orders sought for the father to be released from the Harman undertaking – where the parties have defamation proceedings before the State Court– parties released from the Harman undertaking in respect of an affidavit sworn by the mother  

Legislation:

Family Law Act 1975 (Cth) ss 121(9)(a), 121(9)(g)

Cases cited:

Hearne & Street  (2008) 235 CLR 125

R v Howe [2016] SASCFC 56

Springfield Nominees v Bridgeland Securities Ltd[1992] FCA 472

Number of paragraphs:

20

Date of hearing:

13 May 2021

Place:

Sydney

Counsel for the Applicant:

Ms Collaris

Solicitor for the Respondent:

Mr Goldsmith

ORDERS

MLC 2969 of 2017

BETWEEN:

MS HALKIAS

Applicant

AND:

MS PACE

Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1.The parties are released from the implied Harman undertaking in respect of the affidavit of Ms Pace sworn 27 April 2017  (‘the affidavit) and filed in this proceeding,  and have leave to use the affidavit in the defamation proceedings currently before the State Court.

2.Annexures to any affidavits which contain documents from the State Court proceedings are to be placed in a sealed envelope and are not to be distributed without an order of the Court.

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.

IT IS NOTED that publication of this judgment under the pseudonym Halkias & Pace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE BECKHOUSE

1. These are settled reasons for judgment that were delivered ex tempore on 14 May 2021. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.

2. This matter came before me on an urgent basis. 

3. The Applicant, Mr Halkias is the plaintiff in proceedings before the State Court for defamation.  He is also the Applicant Father in proceedings before the Federal Circuit Court (FCC). 

4. In the Application in a Case brought before me urgently, the Applicant seeks to be relieved from the implied undertaking, commonly referred to as the Harman undertaking, in respect of the affidavit of Ms Pace that was sworn on 27 April 2017 (‘the Ms Pace’s affidavit) and filed in the FCC proceedings, for his sole use in the defamation proceedings. 

5. It is argued by the legal representative for the Applicant Father, John Snodgrass that “[t]he Ms Pace affidavit, (its publication, the truth of its contents and the circumstances surrounding its publication) is central to the determination of the defamation proceedings.” This is not contentious. 

6. He also seeks during defamation proceedings, if it becomes necessary, to make reference to an account of the FCC proceedings by way of context.