Merovic & Groff
[2025] FedCFamC1F 427
•19 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Merovic & Groff [2025] FedCFamC1F 427
File number(s): SYC 8594 of 2022 Judgment of: CHRISTIE J Date of ex tempore judgment: 19 June 2025 Catchwords: FAMILY LAW – INTERIM ORDERS – Where applicant seeks a blanket release from Hearne v Street obligations – Where there is consensual agreement that certain documents may be released from these obligations – Ordered by consent that the applicant, first respondent and second respondent may use and disclose select documents from this Court in another Supreme Court matter – Ordered that parties are to attend a further case management hearing if they cannot agree to consent orders. Legislation: Family Law Act 1975 (Cth) ss 30, 69, 114N, 114Q, 114R
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.04, 6.36)
Cases cited: Chakora & Bhander [2023] FedCFamC1F 127
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Quen v Chen [2025] FedCFamC1A 39
R Pty Ltd (Trustee for Fletcher Trust) & Jones (2016) 56 Fam LR 445; [2016] FamCA 928
Sadek and Ors & Hall and Anor (2015) FLC 93-634; [2015] FamCAFC 23
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 19 June 2025 Place: Sydney Senior Counsel for the Applicant: Mr G. Richardson Solicitors for the Applicant: Pearson Emerson Family Lawyers King’s Counsel for the First Respondent: Mr G. Dickson Solicitors for the First Respondent: Nedovic Lawyers Counsel for the Second, Third and Fourth Respondents: Mr J. Carney Solicitors for the Second, Third and Fourth Respondents: Kalus Kenny Intelex Solicitor for the Fifth Respondent: Mr B. Giles in the employ of Speed and Stracey Lawyers ORDERS
SYC 8594 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MEROVIC
Applicant
AND: MS GROFF
First Respondent
TRUSTEE OF THE GROFF GROUP HOLDINGS PTY LTD
Second Respondent
GUARDIAN AND APPOINTOR OF THE GROFF GROUP HOLDINGS TRUSTB PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.By consent as between the applicant and all the respondents, Order 2 and 3 of the Orders of 6 May 2025 be varied such that time for compliance is extended to 24 July 2025.
2.By consent as between the applicant and the first respondent, pursuant to ss 30 and 69(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 114Q(2)(a), 114Q(2)(b) and/or 114R(2)(b)(i) of the Family Law Act 1975 (Cth) (the Act) and r 6.04(1)(b) of the Rules, each of the applicant and the first and second respondents may for the purpose of the summons dated 12 June 2025 in proceeding S ECI … (VSC Proceeding): (1) use; (2) disclose to the Supreme Court of Victoria and the parties to VSC Proceeding (including their legal representatives); or (3) otherwise rely upon the following documents (or the information within the documents):
(a)all judgments, orders and other documents authored or provided by the Court to the parties in the Proceeding;
(b)transcripts of the Proceeding;
(c)the Initiating Application and any Amended Initiating Application, the Response to Initiating Application and any Amended Response.
(collectively, the Proceedings Documents).
3.For the avoidance of doubt:
(a)a communication of an account of this proceeding or a communication otherwise identifying the names of the parties to this proceeding made in accordance with this order to: (1) the Supreme Court of Victoria in connection with the VSC Proceeding; or (2) the parties to VSC Proceeding (including their legal representatives), is:
(i)in accordance with a direction of this Court under ss 114Q(2)(a) and 114R(2)(b)(i) of the Act; and
(ii)approved by this Court under ss 114Q(2)(b) and 114R(2)(b)(i) of the Act, and will not constitute a contravention of sections 114Q or 114R of the Act.
(b)to the extent necessary to allow use of the Proceeding Documents within the terms of this order, the applicant, the first and second respondents (and their legal representatives) are excused from:
(i)compliance with any non-publication or suppression order made in this Proceeding which otherwise applies to the Proceeding Documents; and
(ii)the implied obligation described in Hearne v Street (2008) 235 CLR 125.
4.If the parties cannot agree to consent orders, then the balance of the application is to be heard by the Honourable Justice Campton on 11 July 2025 at 11:00 AM.
5.The applicant is to file an updated minute of order sought and affidavit by 8 July 2025 at 4:00 PM.
6.Any response and affidavit shall be filed by 10 July 2025 at 12 noon.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J
The primary proceedings before this Court involve parties to a marriage which has ended. The parties married in 1994 and separated in 2014.
In this interlocutory application the Applicant is the husband.
The first respondent is the wife.
There are four other respondents:
(1)Groff Group Holdings Pty Ltd (ACN …) as Trustee of the Groff Group Holdings Pty Ltd (second respondent);
(2)B Pty Ltd (ACN …) as Guardian and Appointor of the Groff Group Holdings Pty Ltd (third respondent);
(3)Mr Tapia (fourth respondent);
(4)Ms Doyem (fifth respondent).
The case in this Court involves property adjustment as between the husband and wife. In those proceedings the spouse parties are at issue about what assets, entities and interests will ultimately form part of the pool of assets for adjustment as between them.
There are separate proceedings in the Supreme Court of Victoria, both the husband and wife are parties to those proceedings. In addition, the second respondent is also a party to those proceedings. Those proceedings were commenced by the wife and the second respondent. There are a number of other parties to those proceedings who are not parties to the proceedings in this Court.
The fifth respondent is not involved in the Victorian Supreme Court proceedings.
The Applicant filed a Summons in the Victorian Supreme Court seeking orders as follows:
1. Pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or alternatively the Court's inherent jurisdiction, these proceedings be dismissed or permanently stayed on the ground that the commencement and maintenance of the proceeding is an abuse of process; alternatively
2. Pursuant to section 1337H(2) of the Corporations Act 2001 (Cth) or alternatively section 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), the proceeding be transferred to the Federal Circuit and Family Court of Australia (Division 1).
3. Pursuant to sections 17 and 20 of the Open Courts Act 2013 (Vic), Rule 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or alternatively the Court's inherent jurisdiction:
a. any documents filed In connection with this summons, including affidavits, exhibits to affidavits and written submissions, be confidential and held on the Court file on that basis until further order; and
b. the publication of any information concerning this summons or alternatively the publication of the names of the parties to this summons or any information which might be expected to enable such identification, be prohibited until further order of the Court.
4. Such further or other order as the Court deems appropriate.
The issues raised on the material appear to be as follows:
(a)Is it appropriate that the applicant (and other parties) be relieved of the implied undertaking not to use documents created for the purpose of these proceedings other than for the purpose of these proceedings?
(b)It being largely agreed that some documents may be released, the areas of dispute would appear to be:
(i)Confidentiality; and
(ii)Relevance of all documents sought to be released.
The following timeline of events is relevant:
(a)On 17 February 2025, the applicant husband foreshadowed an interlocutory application in this Court dealing with a number of matters including “release of the Harman undertaking as to the use of documents filed in the Supreme Court proceedings” (Notation F).
(b)On 12 June, the lawyers for the applicant requested of each of the other parties in this Court, agreement to release from implied undertakings permitting those documents to be used in the Victorian Supreme Court proceedings.
(c)The issue was not resolved by agreement, and on 16 June the applicant sought to relist in respect of this issue.
(d)The matter was listed on 18 June, but due to unforeseen court closure adjourned to 19 June.
(e)The parties appeared on 19 June and each of the applicant and the first to fourth respondents indicated a position, the fifth respondent effectively indicated he stood in a different position and had not had sufficient opportunity to consider the issue (as a stranger to the Victorian Supreme Court proceedings).
(f)There is a timetable for filing of evidence and submissions on the Summons.
(g)The defendants are to file in the Victorian Supreme Court by 7 July.
(h)The Summons is listed for hearing mid-year.
Having regard to that timeline, the application was listed expeditiously.
THE LAW
In Hearne v Street (2008) 235 CLR 125 (“Hearne”) the High Court held at [154] that:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence
This position is clarified in this Court by provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Rules):
Rule 6.04 of the rules is the codification of the Hearn/Harman principle:
(1)A person who inspects or copies a document under these Rules or an order must:
(a) use the document for the purpose of the case only; and
(b) not disclose the contents of the document or give a copy of it to any other person without the court's permission.
6.04(1)(b) has been described as requiring the establishment of “special circumstances” (Chakora & Bhander [2023] FedCFamC1F 127) for release from the implied undertaking.
Rule 6.36 states as follows:
(1) This Division:
(a) applies to a subpoena for production; and
(b) does not apply to a subpoena for production and to give evidence.
(2) A person who inspects or copies a document under these Rules or an order:
(a) must use the document only for the purpose of the proceedings; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(3) However:
(a) a solicitor may disclose the contents or give a copy of the document to the solicitor’s client or counsel; and
(b) a client may disclose the contents or give a copy of the document to the client’s solicitor or counsel; and
(c) nothing in this rule prevents a client or a client’s solicitor from providing a document to an expert for the purpose of the proceeding as permitted by Chapter 7
In Hearne at [96], their Honours considered the types of materials to which the “implied undertaking” may relate:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits
(footnotes omitted)
The purpose of the words “implied undertaking” was explained at [107] of Hearne:
The expression "implied undertaking" is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering "a very serious invasion of the privacy and confidentiality of [their] affairs", any burden which is "harsher or more oppressive … than is strictly required for the purpose of securing that justice is done."
Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 explained what is required for a court to find that “special circumstances” exist such as to release the parties from any implied undertaking:
… For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
There is an interplay between the Rules, the Act and the common law principles. Section 114N of the Act provides:
It is an offence to communicate an account of proceedings under this Act to the public, if the account identifies certain people involved in the proceedings.
It is an offence to communicate a list of proceedings that are to be dealt with under this Act to the public, and that are identified by reference to the names of the parties to those proceedings.
A communication is not made to the public if the communication is made to a person with a significant and legitimate interest in the subject matter of the communication that is greater than the interest of members of the public generally.
The Full Court (Austin, Baumann and Schonell JJ) set out the privacy concerns underpinning the obligation of non-disclosure in Quen v Chen [2025] FedCFamC1A 39:
[30] The privacy of litigants and witnesses in family law proceedings is assured by two overlapping regimes. The first is the common law obligation not to disseminate or use litigious documents outside the confines of the litigation within which they were created or produced, unless granted permission to do so (Hearne v Street (2008) 235 CLR 125 at [3] , [46] , [57] , [96] , [103] , [106] and [109]). This issue has been very recently addressed by a differently constituted Full Court in Kuang & Kuang [2025] FedCFamC1A 31 albeit their Honours determination is not germane to the issues in this appeal. The second is the statutory scheme enshrined within Pt XIVB of the Family Law Act 1975 (Cth) (“the Act”) which prohibits, subject to certain exceptions or the grant of permission, the publication of accounts of the litigation which identify the persons involved.
[31] The coverage of the common law obligation is wider and extends to source documents, like those produced under the discovery process, those produced in answer to subpoena, or those seized pursuant to an interim injunction, together with documents created for use in the litigation, like answers to interrogatories and the affidavits filed in the cause (Hearne v Street at [96]).
[32] As the High Court observed in Hearne v Street (at [98]), the common law obligation is often buttressed by protection afforded by rules of Court but, within the jurisdiction conferred by the Act, the obligation is buttressed by the legislative force of Pt XIVB, which prohibits the oral, written or pictorial publication of accounts of the proceedings identifying the participants therein. Publications in written form which are potentially caught by Pt XIVB of the Act include affidavits, experts’ reports, and reasons for judgment which have not yet been attributed a pseudonym and anonymised.
[33] However, the Pt XIVB prohibition is narrower than the common law obligation and does not cover documents which omit an account of the proceedings, even though such documents might identify a party or witness and be sensitive or confidential. So, for example, Pt XIVB would likely fall short of prohibiting the dissemination of documents produced under subpoena like bank statements which identify the account holder, taxation returns which identify the taxpayer, and police records which identify an offender or person of interest.
It is uncontroversial that a party must secure leave of the Court to rely on protected material outside of family law proceedings to which they apply, Quen v Chen:
[37] Supposing documents filed or created within litigation under the Act are covered by the provisions of Pt XIVB of the Act then, unless one of the numerous exceptions to the communication prohibition applies (s 114S), a party who has an interest in using the documents outside the confines of the litigation must first secure the Court’s permission to do so (s 114Q(2) and s 114R(2)(b)). An offence is otherwise committed by publishing the documents (s 114Q(1) and s 114R(1)).
The Full Court (Thackray, Strickland and Aldridge JJ) in Sadek and Ors & Hall and Anor (2015) FLC 93-634 highlighted the competing right to information between litigants and non-litigants:
[5] There is, however, a necessary compromise between the rights of justice of litigants and the rights of a stranger. The law has developed, as best it can, various means to protect the privacy of the stranger’s information. Courts frequently deal with cases involving highly confidential or commercially sensitive material. In appropriate cases, extra steps may be taken. Commonly, these include restricting access to lawyers only or to persons who have signed specific undertakings as to confidentiality and limiting the copying of documents and their removal from the court’s premises. The injunction made by her Honour is an example of the orders that may be made
[49] It would be a rare case indeed when documents relevant to issues in proceedings were entirely protected from production because of concerns as to the effect of possible dissemination. As noted earlier, the court is capable of drafting stringent protections for such information. Ultimately, the court must effect a compromise between the rights of litigants and strangers to the litigation, as discussed earlier. This her Honour did.
CONSIDERATION
In submissions, senior counsel for the applicant described the dispute as somewhat of a “storm in a teacup” because of the commonality of parties and the commonality of issues. Given the jurisprudential foundations for the protections, there is some merit in that submission.
It is significant that there is considerable overlap in the parties, as this has a significant impact on the otherwise legitimate concern about provision of sensitive or private information to third parties.
The Supreme Court Summons seeks, as part of the relief identified, transfer of those proceedings to this Court. In making that decision, the material before this Court is plainly relevant to disposition of the Summons. The real question is how broad the release need be.
King’s Counsel for the first respondent and Senior Counsel for the second to fourth respondents submitted that the applicant has not established why the points of claim and defence would be relevant to the disposition of the Summons.
The release is not release to the world at large. It is release for use in the proceedings (and specifically limited to the determination of the Summons). I appreciate the questions of confidentiality loom large because I am told from the bar table (but without demur) that the Victorian Supreme Court proceedings have attracted some media interest.
The parties agree that any material which is to be relied upon on the hearing of the Summons will not be public because:
(a)The Summons itself seeks a confidentiality provision;
(b)The parties are to discuss a confidentiality regime; and
(c)In the absence of agreement as to a confidentiality regime, the judge hearing the matter in the Supreme Court of Victoria will not require the parties to file their material electronically (and hence accessibly) but will accept documents filed by email.
I am confident that it is appropriate to grant some of the relief sought by the applicant in the Application in a Proceeding filed on 17 June, which would appear to be by consent.
I foreshadowed with the parties whether it was more prudent to decide the application in two parts – the first in respect of the less controversial material and the second in respect of the balance - when the argument would be informed by a proper appreciation of the evidence which will filed in response to the Summons.
I am conscious that the fifth respondent has less knowledge of the other proceedings and that they have not had adequate time to consider the position.
The applicant seeks a blanket release. I am not yet persuaded that same is necessary. Senior Counsel for the applicant candidly submitted that they were not able at this stage to identify specific documents in the contested category but recognised that they would be able to do so once they understood the Defence to the Summons.
Accordingly, I propose to make orders which are largely agreed and adjourn the balance of the application to 11:00 AM on 11 July 2025 before the Judge with conduct of this matter. If the parties agree to orders, then that listing can be vacated and orders made in chambers.
I will direct the applicant to file an updated minute and affidavit by 4:00 PM on 8 July 2025 and response shall be filed by noon on 10 July 2025.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 27 June 2025
NOTE: These reasons have been corrected from the transcript. Topic headings have been inserted, grammatical errors have been corrected and amendments made to make the orally delivered reasons clear and easy to read.
SCHEDULE OF PARTIES
SYC 8594 of 2022 Respondents
Fourth Respondent:
MR TAPIA
Fifth Respondent:
MS DOYEM
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