Pace & Halkias

Case [2021] FamCAFC 81

Family Court of Australia

Pace & Halkias [2021] FamCAFC 81

Appeal from: Halkias & Pace [2021] FCCA 1062
Appeal number(s): EAA 47 of 2021
File number(s): MLC 2969 of 2017
Judgment of: AINSLIE-WALLACE, ALDRIDGE & TREE JJ
Date of judgment: 25 May 2021
Catchwords: FAMILY LAW – APPEAL – Harman undertaking – Appeal against orders releasing the parties from a Harman undertaking in respect of an affidavit sworn by the appellant – Where defamation proceedings are on foot – Where s 121 of the Family Law Act 1975 (Cth) does not apply – No material error in failing to consider the privacy of the appellant and child – Material already in the public domain which has attracted media attention – Interests of justice requires leave to be granted to use the affidavit in defamation proceedings – Leave to appeal granted – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 121

Judicial Proceedings (Regulation of Reports) Act 1926 (UK)

Matrimonial Causes Act 1959 (Cth) (repealed) s 123

Open Courts Act 2013 (Vic) s 7(d)(i)
Cases cited:

Bateman and Patterson (1981) FLC 91-057; [1981] FamCA 101

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

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

Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308; [2001] FCA 1747

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354

Lenova & Lenova (Costs) [2011] FamCAFC 141

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3

Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28

Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8

Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Division: Appeal Division
Number of paragraphs: 55
Date of hearing: 21 May 2021
Place: Sydney (via video link)
Counsel for the Appellant: Mr Knox SC with Ms Kaiti (direct brief)
Counsel for the Respondent: Mr Hayes SC with Ms Collaris
Solicitor for the Respondent: Galea Fausten Solicitors

ORDERS

EAA 47 of 2021
MLC 2969 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS PACE

Appellant
AND:

MR HALKIAS

Respondent

orderS made by:

AINSLIE-WALLACE, ALDRIDGE & TREE JJ

ORDERS MADE ON 21 MAY 2021:

1.Leave is granted to the appellant to make an oral application for leave to appeal from an order made on 14 May 2021 by a judge of the Federal Circuit Court.

2.Leave is granted to the appellant to rely on amended grounds of appeal as set out in the Proposed Amended Grounds and Further Submissions filed on 21 May 2021.

3.Leave is granted to the appellant to make an oral Application in an Appeal to adduce further evidence being:

(a)a Notice of Risk filed on 27 April 2017 in the Federal Circuit…

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Details
AGLC
Pace & Halkias [2021] FamCAFC 81
Case
[2021] FamCAFC 81
Decision Date

CaseChat Overview and Summary

In this appeal, Ms Pace sought leave to appeal against orders that had released the parties from a Harman undertaking in respect of an affidavit sworn by her in 2017. The appeal was heard in the Family Court of Australia. The appeal arose in the context of a long-running dispute between the parties. The parties had a relationship from 2012 to 2015 and have a child together. In 2017, Ms Pace filed an affidavit in relation to parenting proceedings in the Federal Circuit Court, in which she made a number of allegations against the respondent. In January 2019, the respondent commenced defamation proceedings in the State Court, alleging that Ms Pace had made a number of defamatory publications based on her affidavit.

The legal issues that the court was required to determine were whether the appellant had made an application to appeal against the orders of the Federal Circuit Court within the appropriate time period, whether the court had been correct to release the parties from the Harman undertaking, and whether the court had erred in failing to consider the privacy of the appellant and her child. The court considered the appellant’s application to appeal against the orders of the Federal Circuit Court, which had been filed late, and found that the delay was not inordinate and that the appellant had demonstrated exceptional circumstances. The court then considered whether it had been correct to release the parties from the Harman undertaking. It found that the material in the affidavit had already been disclosed to the respondent and that it had been in the public domain for some time, attracting media attention. The court found that the interests of justice required leave to be granted to use the affidavit in the defamation proceedings. The appeal was dismissed, but the appellant was granted leave to appeal. The appellant was ordered to pay the respondent’s costs in a fixed sum.

Orders

Orders of the court

EAA 47 of 2021

MLC 2969 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS PACE

Appellant

AND:

MR HALKIAS

Respondent

orderS made by:

AINSLIE-WALLACE, ALDRIDGE & TREE JJ

ORDERS MADE ON 21 MAY 2021:

1. Leave is granted to the appellant to make an oral application for leave to appeal from an order made on 14 May 2021 by a judge of the Federal Circuit Court.

2. Leave is granted to the appellant to rely on amended grounds of appeal as set out in the Proposed Amended Grounds and Further Submissions filed on 21 May 2021.

3. Leave is granted to the appellant to make an oral Application in an Appeal to adduce further evidence being:

(a) a Notice of Risk filed on 27 April 2017 in the Federal Circuit Court proceedings between the parties; and

(b) an article published in a newspaper.

4. The oral Application in an Appeal to adduce further evidence is dismissed.

5. Leave to appeal the order of a judge of the Federal Circuit Court on 14 May 2021 is granted.

6. The appeal against the order made on 14 May 2021 is dismissed.

IT IS FURTHER ORDERED THAT:

The appellant pay the respondent’s costs fixed in the sum of $10,000.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The principle was described by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 (“Hearne”) at [96] as follows:96.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…(Footnotes omitted)BACKGROUND In order to understand the appeal, it is necessary to place it in the context of the relevant facts. According to the evidence of the appellant, the parties met in July 2012 and were in an intermittent relationship from August 2012 to approximately June 2015. A child of that relationship was born in 2014. The child has lived with the appellant since May 2015. The respondent commenced parenting proceedings in the Federal Circuit Court in 2017 and on 27 April of that year, the appellant filed and served the affidavit that is the subject of these proceedings. In that affidavit the appellant asserts that during and after the relationship, the respondent misused drugs, including ice, which adversely affected his behaviour. She alleged that he was physically violent as well as being coercive and controlling. Based on evidence that she set out in that affidavit the appellant formed the view that during their intermittent relationship, the respondent was deceiving her with a number of other women. At paragraph 100 of the affidavit, the appellant records that she contacted a person named Ms B, and “informed her that [the respondent] was dangerous and unfaithful”. It transpires that Ms B is currently in a relationship with the respondent and is engaged to marry him. The appellant annexed to the affidavit letters from three other women who had been involved with the respondent and raised similar concerns.Proceedings in the State Court The respondent commenced defamation proceedings by way of a writ filed in January 2019. The Second Further Amended Statement of Claim, which was filed by the respondent on 10 May 2021, asserted that the appellant made the following defamatory publications:(a)Publication of a letter dated 13 January 2018 to the respondent’s fiancée (Ms B); and(b)Publication of the appellant’s affidavit of 27 April 2017 to:(i)Ms C (in or about June 2017);(ii)Ms D (in or about September 2018); and(iii)Ms E (in or about September 2018). In her Second Further Amended Defence to that Statement of Claim the appellant admits to providing at least parts of a copy of her affidavit to Ms C as alleged, but denies that it was disseminated to Ms D or Ms E. The hearing of the defamation proceedings commenced in the State Court on 17 May 2021, and is continuing to be heard. As an order had been made granting leave for the affidavit to be used in those proceedings, the affidavit has been referred to in the opening of the proceedings and in the examination-in-chief of the respondent, which occurred on 19 May 2021. However, pursuant to a direction by the presiding judge, the affidavit has only been referred to in open court as a ‘document’ rather than as an affidavit of the appellant. Presumably, this is because the judge has been made aware of the appeal and the application for a stay before the primary judge.

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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