Plantier & Plantier (No 2) - [2023] FedCFamC2F 386

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Plantier & Plantier (No 2) [2023] FedCFamC2F 386

File number(s): DGC 1773 of 2019

Judgment of: JUDGE BECKHOUSE

Date of judgment: 6 April 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Orders sought for wife to be released from the implied Harman undertaking – Where the parties have proceedings before the Magistrates Court of Victoria – Where current investigation by D Commissioner – Parties released from the Harman undertaking for the proceedings before the Magistrates Court of Victoria.

Legislation:
Family Law Act 1975 (Cth) s 121

Family Violence Protection Act 2008 (Vic) s 166

Cases cited:
Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545

Australian Securities & Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833

Gavan v FSS Trustee Corporation [2019] NSWSC 667

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

Hearne v Street (2008) 235 CLR 125

Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283

Plantier & Plantier [2022] FedCFamC2F 840 (unreported)

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Plantier & Plantier [2020] FCCA 1399

Division: Division 2 Family Law

Number of paragraphs: 54

Date of hearing: 13 March 2023

Place: Sydney

Solicitor for the Applicant: Self-represented litigant

Counsel for the Respondent: Mr Thangarajah
ORDERS

DGC 1773 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PLANTIER

Applicant

AND:
MR PLANTIER

Respondent

order made by:

JUDGE BECKHOUSE

DATE OF ORDER:

6 April 2023

THE COURT ORDERS THAT:
1.The parties and their legal advisers, be relieved of the implied undertaking to this Court in Harman v Secretary of State for Home Department [1983] 1 AC 280 (“Harman”) with respect to:
(a)Any document sworn or affirmed and filed in this Court in this proceeding, being DGC 1773 of 2019 (“the Proceeding”);
(b)Any Orders made and Judgments delivered in the Proceeding, including these Reasons for Judgment;
(c)Case summaries or Case Outlines filed in the Proceeding; and
(d)Notices to Admit Facts and/or documents filed in the Proceeding;
(together, the “Documents”)

2.The relief from the implied Harman obligation referred to in Order 1 herein, is to be limited to the use of the Documents as follows:
(a)In the Magistrates Court of Victoria proceedings Case No …

3.The relief from the implied Harman undertaking in so far as it relates to the D Authority is dismissed.

THE COURT DECLARES THAT:
4.The parties nor their legal advisers will be in breach of s 121 of the Family Law Act 1975 (Cth) by using any of the Documents from the Proceeding for the purpose set out in Order 2(a) herein, and such use will not constitute a breach.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Plantier & Plantier (No 2)

Details

AGLC: Plantier & Plantier (No 2) [2023] FedCFamC2F 386
Case: [2023] FedCFamC2F 386
Decision Date

CaseChat Overview and Summary

In Plantier & Plantier (No 2), the Federal Circuit and Family Court of Australia considered an application by the wife to be released from the implied Harman undertaking in respect of the use of documents in Family Violence Intervention Order (FVIO) proceedings and a complaint to the D Commissioner. The Court was required to decide whether the wife should be relieved from the implied Harman undertaking to use documents in the FVIO proceedings and to provide to the D Commissioner. The Court found that the wife had not adequately specified the documents to be used or the purpose of their use, and that there were no special circumstances warranting the release of the documents. The Court held that the wife had not shown good reason for the release of the documents and that it was not in the interests of justice to grant the release. The Court made orders relieving the parties from the implied Harman undertaking with respect to certain documents for use in the Magistrates Court of Victoria proceedings only.

Orders