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 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Plantier & Plantier (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This matter comes before the Court following the filing of an Amended Application in a Proceeding by the applicant wife, Ms Plantier (“the wife”) on 12 December 2022. The respondent husband is Mr Plantier (“the husband”).
In her application, the wife seeks an order excusing her under s 121 of the Family Law Act 1975 (Cth) (“the Act”) from prohibition against publication or dissemination of Court documents commonly referred to as the Harman undertaking (Harman v Secretary of State for Home Department [1983] 1 AC 280 (“Harman”)). The Harman undertaking is generally explained to be that any documents produced or filed in a court proceeding are to be used only for the purposes of that proceeding.
The wife proposes to be relieved of the Harman undertaking with respect to a broad category of documents set out in Order 2 of her Minute of Order where it is expressed as:
a.Any document sworn or affirmed and filed in this Court in this proceeding, being DGC 1773 of 2019 (Proceeding);
b.Any Orders made and Judgments delivered in the Proceeding, including these Reasons for Judgment;
c.Notices to admit facts and/or documents filed in the Proceeding and any response thereto, whether filed or otherwise;
d. Case summaries or outlines of case filed in the Proceeding;
e.The case summaries submitted to the Court by the Husband and the Wife for the Interim Defended Hearing of the Proceeding on 26 May 2020; and
f.Such of the documents in the Wife’s Court Book submitted to the Court for the Final Hearing of the Proceeding on 6 August 2020 that are referred to in:
i. The Wife’s Affidavits filed on 4 February 2020, 24 February 2020 and 3 August 2020; and
ii. The Notice to Admit Facts and Authenticity of Documents, filed by the Wife on 10 February 2020.
(Emphasis in original)
For ease of reference, I will refer collectively to them as “the documents” and the proceedings from where they arose as “the family law proceedings.”
The relief from the implied Harman undertaking is sought by the wife for the use of the documents in the following arenas:
(a)In ALL Magistrates Court of Victoria proceedings between the parties whether present or future; or alternatively
(b)In the current Magistrates Court of Victoria proceedings (…) between the parties (“the FVIO proceedings”); and
(c)For provision to the D Commissioner concerning the husband’s professional conduct.
The husband resists the Court making the orders sought by the wife.
BACKGROUND
The wife was born in 1964 and is presently 58 years of age.
The husband was born in 1953 and is presently 69 years of age.
The parties commenced living together in or around mid-2009, were married in early 2010 and separated on a final basis in mid-2019. The parties were divorced on 22 November 2020.
The wife commenced the substantive proceedings in this Court by filing an Initiating Application on 6 June 2019 where she sought both interim and final property and spousal maintenance orders.
An extensive number of documents were filed by the parties during the substantive proceedings. Interim judgment was delivered by Judge Baker (as Her Honour then was) on 5 June 2020 (Plantier & Plantier [2020] FCCA 1399).
The wife’s application for spousal maintenance was dismissed by Judge Mercuri (as Her Honour then was) pursuant to orders made on 11 October 2019. The remainder of the substantive proceedings were finalised by consent on 6 August 2020.
On 15 February 2022, the wife commenced proceedings seeking that she be relieved of the implied Harman undertaking to enable her to use certain documents in Fair Work Proceedings before the Federal Court of Australia (“Federal Court”), the D Commissioner and to the Australian Tax Office (“ATO”). On 30 June 2022, Judge Kirton KC delivered judgment published as Plantier & Plantier [2022] FedCFamC2F 840 (unreported). Her Honour permitted the release to the ATO and Federal Court, but not the D Commissioner.
On 6 June 2022, the husband applied to the Magistrates Court of Victoria (“the Magistrates Court”) for a Family Violence Intervention Order against the wife (“the FVIO”). These proceedings are still before the Magistrates Court of Victoria.
On 9 November 2022, the wife applied to the Federal Court to be relieved of the implied Harman undertaking to enable her to use certain documents in the Magistrates Court. No formal orders appear to have been made on the matter.
On 8 December 2022, the D Commissioner wrote to the husband seeking further information from him in response to the complaint (“the D Commissioner complaint”).
On 12 December 2022, the wife commenced these proceedings.
DOCUMENTS RELIED ON
The interim hearing was conducted electronically by Microsoft Teams and proceeded by way of submissions.
The wife filed a court book consisting of 734 pages. I was only directed to a few of the documents contained in that court book. At the hearing, the parties agreed to the documents that were to be read and relied upon by me in reaching this decision.
There were some preliminary issues I determined, but they are not the subject of this judgment and therefore need not be referred to.
THE ARGUMENTS
The wife contends that:
(a)There are allegations made by the Husband in his FVIO application that are false.
(b)She requires the release of the family law file in order to properly defend herself in the FVIO proceedings.
(c)She initially argued that to avoid having to bring a similar application in the future to this Court, the Court should grant the release from the Harman undertaking in respect of any future proceedings before the parties in the Magistrates Court. However, during the hearing she conceded that this was too wide an ambit and agreed to contain her application to a release for the purposes of the current FVIO proceedings.
(d)With respect to the D Commissioner complaint, she argues that on 12 December 2022, the D Commissioner notified her of the matters still under investigation, and based on the contents of this communication, she seeks the release.
(e)She argues that because the parties are before the court in several jurisdictions and her complaints relate to the conduct and honesty of the husband, she should not be required to identify every single document she seeks to have released from the Harman undertaking.
The husband contends that the wife’s application should fail because:
(a)She has failed to adequately specify the documents to be used and the purpose of the use.
(b)There are no special circumstances that would warrant the release of the documents.
(c)It is not in the interests of justice for the release of the Harman undertaking.
ISSUES FOR DETERMINATION
Should the wife be relieved from the implied Harman undertaking to use documents:
(a)in the FVIO proceedings; and/or
(b)to provide to the D Commissioner?
If the answer to either of those questions is yes, then should the wife be relieved from the implied Harman undertaking:
(a)in relation to the entire category of documents; or
(b)in relation to any or some of the documents?
THE LAW
Section 121 of the Act restricts the publication and dissemination of information about a family law proceeding and any documents filed, produced or disclosed in a family law proceeding.
Section 121(1) of the Act provides:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; ora witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
This is subject to the exceptions set out in s 121(9) of the Act. Relevantly, s 121(9) of the Act provides:
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or …
(b) the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the profession in that State or Territory; or …
The exemptions in s 121(9)(a) and (b) of the Act listed above do not extinguish the implied Harman undertaking. The implied Harman undertaking is said to preserve privacy and confidentiality, whilst ensuring that justice is done (Harman at [308]).
The scope of the implied undertaking was described by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 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)
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at [225] the Federal Court identified the following considerations relevant to the exercise of the discretion:
… the nature of the document, the circumstances under which the document 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; and… the likely contribution of the document achieving justice in the [other] proceeding.
As identified by the husband, the task of the Court in determining whether leave is granted to exempt the wife from the Harman undertaking, is to consider:
(a)any injustice caused to the husband; and
(b)whether the wife ought to be relieved from the Harman undertaking because some “special circumstance” exists.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 the Full Court of the Federal Court of Australia said at [31]:
…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes…
THE FAMILY VIOLENCE INTERVENTION ORDER PROCEEDINGS (“THE FVIO PROCEEDINGS”)
In order to make a decision on the release of documents for use in the FVIO proceedings, it is necessary to understand the allegations made by the husband in those proceedings. In the Application and Summons for an Intervention Order made on 6 June 2022, the husband states the following:
The respondent is my ex-wife and I have known the respondent for 13 years. I am separated from the respondent. I have been separated for 3 years late May; early June 2022. The respondent has discovered that I have a new [employee]. She flooded the [employee’s] social media page with posts calling me a sex addict, an abuser, a tax cheat, a perjurer and other like denigratory terms. In 2019 the respondent engaged in similar behaviour to what I have detailed above. The respondent has breached previous intervention orders. The respondent has been posting on [social media] that I am a sex addict, tax cheat, abuser, liar and not a fit person to be a professional. The respondent has used her previous unlimited access to my business and
See continuation
Personal bank accounts to divert more that $60,000 to herself without my prior knowledge or permission. The respondent has threatened to prosecute me for crimes I never committed, and has made groundless complaints to the ATO, the [D Commissioner], the Victoria Police, and other authorities, with the avowed purpose of having me jailed, or otherwise being found to be unfit to [work]. The respondent has relentlessly followed my movements by internet surveillance and discovered my private address. She has hacked into my work emails and purported to use private communications between me and my [colleagues in the course of my employment]. I have reported the family violence to police at [Suburb O] station. The respondent has attempted suicide, hurt or tried to hurt themselves on purpose. Incidents of family violence have increased. I am seeking an interim order for immediate protection.
The wife argues that because the husband has made contradictory statements on oath in various affidavits and submissions, including in family law proceedings, she requires the contents of the family law file to demonstrate the manner in which the husband conducts himself in litigation.
Of the allegations made about her conduct in the FVIO proceedings, the wife is unable to identify in her submissions to the Court what specific documents she required to be released to defend these allegations.
At paragraph 33 of her affidavit filed on 1 December 2022, she states:
[t]he applicant requires the release of the documents in their family law proceedings to counter the respondents conduct as a litigant who does whatever he wants without any regard to the truth, or the consequences that may arise.
(As per the original)
And further at paragraph 39:
The applicant is required to file a response to the respondents further and better particulars in case number […] by 13 December 2022, and submits that to afford her natural justice and procedural fairness she requires the documents of the parties in their family law proceedings to defend herself against the repetitive, malicious, and serious allegations made by the respondent.
(As per the original)
THE D COMMISSIONER COMPLAINT
The release of the implied Harman undertaking with respect to the provision of documents to the D Commissioner was the subject of proceedings before Judge Kirton KC. No orders were made for their release. There was no submission made that issue estoppel applies here, presumably because at the time the matter was before Judge Kirton KC there were no particulars about the D Commissioner complaint before the Court.
The wife argues that since Judge Kirton KC made orders, the D Commissioner have confirmed details of the matters that are being investigated. She relies upon an email from an officer of the D Commissioner dated 8 December 2022, which confirms that they are proceeding to further assess seven allegations (“the allegations”) described as:
3. Failing to disclose cash income
6. False statement to police
9. Threats to Ms P
11. work certificate
12. Working procedures
16. Use of property sale funds; and
17. Use of trade debts funds.
(As per the original)
The wife argues the relevance is that the matters of investigation by the D Commissioner overlap with the family law proceedings. Her arguments are set out from paragraphs 5 to paragraphs 22 of her affidavit filed on 12 December 2022.
Whilst the wife might be the complainant, the husband deposes that his comments on the allegations have been sought. He deposes that he is in the process of collating the information requested in response to the letter and will provide that information to the D Commissioner shortly.
It would seem that the D Commissioner has not made a request for the wife to seek a release of the Harman undertaking in relation to some, any, or all of the family law file. The husband is not seeking a release of the Harman undertaking in relation to some, any, or all of the family law file, either.
CONCLUSIONS
The husband argues that an applicant seeking to be released from the implied undertaking must specify the particular documents that are sought to be used and identify the purpose for their use (see Australian Securities & Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [12], (“ASIC v Marshall”)). The character of the document and its potential importance to the other proceeding will be critical to the question of whether special circumstances exist (see Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545 at [40]). He therefore contends that the wife’s failure to properly identify the documents over which the release is sought is fatal.
The wife draws the Court’s attention to Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 (“Helicopter Aerial”) and argues that a valid reason for seeking the release of documents is where there are overlapping allegations in multiple jurisdictions.
A similar broad release of the implied undertaking was considered in Gavan v FSS Trustee Corporation [2019] NSWSC 667. There, the NSW Supreme Court considered an application seeking a broad release over all documents produced in response to a notice to produce. The application was dismissed with the Supreme Court observing at [125] that:
… it means that I am not in a position to assess matters of the kind identified by Wilcox J in Springfield Nominees (such as the nature of the document, the circumstances under which it came into existence, any prejudice the author might sustain, the nature of the information in the document and, most importantly, the likely contribution of the document to achieving justice in this proceeding.
These cases are not in my view closely analogous to the issue here. They each concerned situations where documents had been produced by way of a disclosure process. They should be distinguished from the situation here, where the wife seeks the release only in relation to a broad group of documents that were filed by the parties in the proceedings or originated as a result of the proceedings (for example, any judgments and court orders). She has listed at various parts of her material the documents that she seeks the release to apply. The issue, in my view, is not so much that she has failed to identify the documents, but more relevantly that she has failed to reduce the scope of her application to a group of documents that go to the heart of her contentions or defences.
For example, in her affidavit, the wife deposes the understanding and information she has about the allegations under investigation by the D Commissioner. However, she does not link her knowledge and understanding of these matters to the basis upon which she seeks to have the whole of the family law file released to the D Commissioner. While I do appreciate that the wife has, at various stages of the proceedings, listed all of the pleadings filed, in my view, she must go further than this and be in a position to address the Court on the particular documents or group of documents that are sought to be used and the purpose of their use.
During the hearing, I raised a concern that, given the history of litigation between the parties, the orders I make should ideally bring about a conclusion of this litigation. If I am to dismiss the wife’s application for its lack of specificity, it is possible that she will return to the Court seeking a release from the Harman undertaking in relation to a narrower group of documents.
During the hearing, I asked counsel for the husband whether they were prepared to make any concessions about the release from the implied undertaking for any particular documents. I did so, because throughout the pages of material filed by the wife, she occasionally identifies a document that may, at face value, be relevant to the position she takes in the FVIO proceedings and the D Commissioner complaint.
Appropriately, counsel for the husband reminded me that it is not the role of the Court to identify the necessary documents nor speculate on whether the documents might be relevant to the D Commissioner enquiry. It is for the applicant to do so. In response, the wife directed me to paragraph 49 of her affidavit filed on 12 December 2022, which lists at least 50 documents covered by the application, as well as additional documents contained in the orders sought. The list of documents went well beyond the documents included in her 734 page court book and includes Costs Notices and Notices of Address for Service.
Turning to the broad release sought in respect of the D Commissioner complaint:
(a)The documents came into existence arising from an application to adjust interests in the matrimonial property. There must be special considerations that exist to justify their release. To consider these matters, it is necessary to have a clear understanding of the nature of the information in the documents and the contribution it would make to achieving justice. I understand that some of the documents contained in the family law file might assist the D Commissioner. However, I cannot be sure what those documents are and, accordingly, if I were to grant the release, I would be granting the release for over thousands of pages of documents contained in the family law file.
(b)The authors of the documents are the parties, their legal representatives, and officers of this Court. I need to consider any prejudice to the authors of those documents. The husband argued that he would suffer great prejudice due to the sheer volume of material over which the release from the undertaking is sought. He says that this will increase his legal costs. I accept that it will.
(c)The Court must give weight to whether the release is in the public interest. I am minded that the D Commissioner plays an important role in regulating the conduct of the profession in Victoria. They do this by investigating matters from the perspective of both consumer protection and upholding the rule of law. It is in the public interest that they be permitted to undertake their role both efficiently and without hindrance. But the provision of the whole family law file to them may not facilitate this. It might unnecessarily overwhelm and increase the workload of the complaint officer who has not made the request. Accordingly, I am not satisfied that the wife has established that a release would likely contribute to achieving justice in the D Commissioner complaint process.
Having regard to all of those matters, I will not grant the relief sought by the wife.
Turning to the broad release sought in respect of the FVIO proceedings:
(a)The husband raises in his FVIO complaint a range of allegations against the wife. Two of those complaints appear to me to involve matters that were before the Court in the family law proceedings. They are that:
(i)the wife has stolen $61,000 from him; and
(ii)the wife hacked into the husband’s work emails and used private correspondence between him and his work colleagues for improper purposes.
(b)There are other more general allegations and I accept that some of them might have some relevance or connection to matters that were before the Court in the family law proceedings.
(c)The wife grounds her request for release on the basis that she “requires the release of the documents in [the] family law proceedings to counter the respondents conduct as a litigant who does whatever he wants without any regard to the truth, or the consequences that may arise.” (at paragraph 33 of the wife’s affidavit filed on 1 December 2022).
(d)Of note, the family law proceedings were resolved by way of consent orders in 2020 and no findings of fact were made. The only published judgment is that of Judge Kirton KC arising from the cross applications made by the parties for a release of the Harman undertaking in June 2022.
(e)The husband is opposed to any release of the implied undertaking for the FVIO proceedings. He carefully took me through some of the documents referred to by the wife and argued that they would provide no assistance to the Magistrates Court. He concludes that no good reason has been shown for their release.
(f)There is a distinction to be drawn in my view between legal proceedings or processes involving an agency such as the D Commissioner or the ATO, and legal proceedings where there is a commonality of parties (such as Helicopter Aerial) and here in the FVIO proceedings.
(g)This is also not the first FVIO sought by the husband against the wife. There is therefore not insignificant commonality between the proceedings in the family law proceedings and in the FVIO proceedings. The parties to each of the proceedings were and are the wife and the husband. The documents listed by the wife for release were all created for the purposes of litigation between the parties.
(h)I am again left to weigh up the likely contribution of the entire family law file to achieving justice in the FVIO proceedings. The parties have been in high conflict since at least 2019. It is an agreed fact that since 2020 the wife has made a range of complaints about the conduct of the husband to agencies such as the ATO, the D Commissioner and commenced proceedings in the Federal Court. The husband argues that the acrimonious conduct of the wife has gone much further, as set out in his reasons for seeking the FVIO. This Court is not asked to make findings on these matters, nor ought it do so.
(i)It seems that the husband has chosen to use the FVIO process as a vehicle through which he can hold the wife to account for the manner in which he alleges that she has conducted herself. It is arguably in the public interest that this process takes place with as much relevant material as possible so that the matter can be determined completely and with finality. While granting the release may prolong the length of the proceedings due to the volume of material that the wife will seek to rely upon, it is in the public interest that a decision is made with all of the material relevant to the allegations and assertions being put before the Magistrates Court.
(j)I am also minded that s 166 of the Family Violence Protection Act 2008 (Vic) contains restrictions on the publication of those proceedings, ensuring that the privacy of the parties will be preserved notwithstanding the release.
(k)There must be special considerations that exist to justify the release of all of the documents listed by the wife. I understand that some of the documents contained in the file might assist the wife in defending the FVIO, but I cannot be sure what those documents are and, accordingly, if I were to grant the release, I would be granting the release for over thousands of pages of documents contained in the court file. This could prolong the length of the FVIO proceedings as well as the cost of them, and prejudice the husband. Although, this is a matter that the Magistrates Court can manage and it does arise from the husband’s application.
(l)The wife consistently has argued that the FVIO proceedings will need to make findings based on credit – and critical to her defence will be her reliance on documents from the family law proceedings that demonstrate that the husband has made contradictory statements in various affidavits and material filed. This means the scope of documents extends to a broader range of documents such as Orders and case summary documents. I consider that the documents from the family law proceedings and the historical context in which allegations of family violence have been made are relevant to the question of the husband’s credit and, consequently, the ability of the wife to defend the FVIO. I am not, however, persuaded that any release should include, as indicated in Order 2 of the wife’s Minute of Order:
f. “… documents in the Wife’s court book submitted to the Court for the Final Hearing of the Proceeding on 6 August 2020 that are referred to in:
i.The Wife’s Affidavits filed on 4 February 2020, 24 February 2020 and 3 August 2020; and
ii.The Notice to Admit Facts and Authenticity of Documents, filed by the Wife on 10 February 2020.”
(as per original)
In line with the authorities previously cited (such as ASIC v Marshall) there is inadequate evidence before me to satisfy me of their potential importance to the FVIO proceedings. I will however grant the release to a small category of documents.
Accordingly, I make the orders as set out at the beginning of these reasons.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 6 April 2023
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