Harradine & Michaels

[2024] FedCFamC1F 753

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Harradine & Michaels [2024] FedCFamC1F 753

File number(s):	CAC 438 of 2018
Judgment of:	GILL J
Date of judgment:	8 November 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Release from Hearne v Street obligations – Leave given for use of documents in Federal Court proceedings – Where an order was sought that the applicants will not be in breach of any provisions of Part XIVB of the Family Law Act 1975 (Cth) by using any of the documents for the purpose specified – Where jurisdiction or power for such an order is not apparent – Parties to file written submissions in relation to this proposed order if it is pursued
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04
Cases cited:	Hearne v Street (2008) 235 CLR 125
Division:	Division 1 First Instance
Number of paragraphs:	4
Date of hearing:	8 November 2024
Place:	Canberra
Solicitor for the Applicants:	Colin Biggers & Paisley
Solicitor for the First Respondent:	Mansour Lawyers
Solicitor for the Second Respondent:	Robb & Associates

ORDERS

CAC 438 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

H PTY LTD

First Applicant

MR WRENCH

Second Applicant

AND:

MR MICHAELS

First Respondent

MS HARRADINE

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	8 NOVEMBER 2024

THE COURT ORDERS, BY CONSENT, THAT:

1.H Pty Ltd and Mr Wrench be released from the obligation (commonly known as the implied undertaking) as described in Hearne v Street (2008) 235 CLR 125 and leave be given pursuant to rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) with respect to the following documents in this Proceeding No (P)CAC438 of 2018 in the Family Court of Australia (Division 1) (“the documents”):

(a)the Initiating Application (Family Law) dated 7 March 2018;

(b)the Affidavit of Ms Harradine dated 7 March 2018;

(c)the Financial Statement of Ms Harradine dated 7 March 2018;

(d)the Affidavit of Mr Michaels dated 16 March 2018;

(e)the Financial Statement of Mr Michaels dated 16 March 2018;

(f)ex tempore Reasons for Judgment of the Honourable Justice Gill dated 13 March 2019;

(g)the letter from H Pty Ltd to J Lawyers, together with enclosures dated 25 May 2018;

(h)the letter from H Pty Ltd to J Lawyers dated 29 June 2018;

(i)the letter from H Pty Ltd to J Lawyers dated 9 August 2018; and

(j)the email from H Pty Ltd to J Lawyers together with attachment dated 4 March 2019,

for the purpose of conducting proceeding No … in the Federal Court of Australia.

2.There is no order as to costs.

IT IS FURTHER ORDERED THAT:

3.Pending the making of further written submissions to be filed within 14 days of today’s date, identifying the jurisdiction and principles governing the making of the orders sought at order 2 of the consent terms which is in the following terms:

[H Pty Ltd] and [Mr Wrench] will not be in breach of any of the provisions of Part XIVB of the Family Law Act 1975 (Cth) by using any of the documents referred to in paragraph 1, for the purpose set out in paragraph 1, by reason of s 114S(2)(b) of that Act.

Those orders are not made.

4.In the event that submissions are not filed in accordance with the above order within 14 days, the pursuit of order 2 will be taken to have been abandoned and the application insofar as it relates to order 2 will be dismissed.

5.The parties are at liberty to seek further directions in relation to this matter within 14 days.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harradine & Michaels has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. The parties in these proceedings seek consent orders in relation to the use of material filed in previous proceedings before this court. The release is to facilitate proceedings being conducted in the Federal Court of Australia that relate to those previous proceedings.  The orders sought by consent seek release from the Hearne v Street (2008) 235 CLR 125 obligations and that leave be given pursuant to rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). A list of documents for which that release and leave be given is identified. The proceedings in the Federal Court appear to involve claims arising from advice given around the conduct of those proceedings and the circumstances of dealings with property related to the proceedings.

2. The conduct of those proceedings forms a sufficient justification for the release from those obligations. The consent terms in relation to such release, and in relation to there being no order as to costs should be made.

3. However, an order is also sought in these terms

   [H Pty Ltd] and [Mr Wrench] will not be in breach of any of the provisions of Part XIVB of the Family Law Act 1975 (Cth) by using any of the documents referred to in paragraph 1, for the purpose set out in paragraph 1, by reason of s 114S(2)(b) of that Act.

4. Pending further identification from the parties as to jurisdiction and principles governing the making of such an order, no such order will be made by consent.  It is not apparent that there is jurisdiction or power for the court to make the declaration sought in order 2, which at face value appears to be seeking from the court an advisory opinion.  In the event that the parties pursue the making of such an order, then directions will provide for written submissions to be made in support of such and potentially further oral hearing.  In the absence of such written submissions being filed, the pursuit of order 2 will be taken to have been abandoned.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       8 November 2024