Pace & Halkias

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.