Simon & Birch

Case [2025] FedCFamC2F 181


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Simon & Birch [2025] FedCFamC2F 181

File number(s): ADC 396 of 2025
Judgment of: JUDGE DICKSON
Date of judgment: 17 February 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to be released from the Harman undertaking – Where the applicant is defending serious criminal charges in the District Court – Where the applicant seeks the release of documents filed in these proceedings for use in the criminal proceedings – Where the Court is satisfied that special circumstances exist which would justify release from the implied undertaking – Order.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.04, 15.13

Cases cited:

Chakora & Bhander [2023] FedCFamC1F 127

Dunn & Dunn (No 2) [2022] FedCFamC1F 76

Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020

Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208

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

Hearne v Street (2008) 235 CLR 125

Hermann & Hermann (No. 2) [2014] FamCA 587

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3

Littlefield & Pemble(No 2) [2023] FedCFamC1F 793

Minister for Education v Bailey [2000] WASCA 377

Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345

Pace & Halkias [2021] FamCAFC 81

R Pty Ltd ATF the Fletcher Trust & Jones and Anor [2016] FamCA 928

Riddick v Thames Board Mills Ltd [1977] QB 881

Sahadi & Savva and Anor [2016] FamCAFC 65

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

The State of Western Australia v JWRL (a child) [No 3] [2010] WASC 294

Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 385 ALR 562

Zarins & Mylne (No 3) [2013] FamCA 737

Zha & Wun(No 10) [2024] FedCFamC1F 850

Division: Division 2 Family Law
Number of paragraphs: 55
Date of hearing: 12 February 2025
Place: Adelaide
Counsel for the Applicant: Mr David Edwardson KC
Solicitor for the Applicant: Purdie Legal
Counsel for the Respondent: Mr Ian Robertson SC
Solicitor for the Respondent: Jordan & Fowler Family Lawyers

ORDERS

ADC 396 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SIMON

Applicant

AND:

MS BIRCH

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

17 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Applicant and the Respondent and their legal advisers be released from their substantive legal obligation not to use the documents or any of the contents of the documents filed in the family law proceedings (ADC 3224 of 2021) other than for the purpose of the criminal proceedings (…) (being the obligation described as an implied undertaking in Harman v Secretary of State for Home Department [1983]…

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AGLC
Simon & Birch [2025] FedCFamC2F 181
Case
[2025] FedCFamC2F 181
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Simon, the applicant, applied to be released from the Harman undertaking so that he could use specific documents from a family law proceeding in his criminal proceedings. The respondent, Ms Birch, did not oppose the application. The court was required to determine whether special circumstances existed to justify releasing the applicant from the implied undertaking that the documents could not be used for any purpose other than the family law proceedings.

The court examined the principles established in Harman v Secretary of State for Home Department and Hearne v Street to understand the nature of the implied undertaking and the circumstances under which it could be discharged. The court considered the applicant's criminal charges, the relevance of the documents to those charges, and the potential impact on the applicant's legal representation. The court concluded that special circumstances existed, as the release of the documents was necessary for the applicant's fair representation in the criminal proceedings.

The court ordered that the applicant, respondent, and their legal advisers be released from the implied undertaking in relation to the specified documents, strictly for use in the criminal proceedings. The order was limited to the documents listed and the specified use in the criminal proceedings. Each party was to bear their own costs of the application. This decision ensures that Mr Simon can effectively use the relevant documents in his criminal case while maintaining the integrity of the family law process.

Orders

Orders of the court

ADC 396 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SIMON

Applicant

AND:

MS BIRCH

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

17 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Applicant and the Respondent and their legal advisers be released from their substantive legal obligation not to use the documents or any of the contents of the documents filed in the family law proceedings (ADC 3224 of 2021) other than for the purpose of the criminal proceedings (…) (being the obligation described as an implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 and described as a substantive legal obligation by the High Court of Australia in Hearne v Street [2008] HCA 36 (6 August 2008) at [3] ) in relation to the following documents:

(a) 7.10.21 Affidavit Ms Birch;

(b) 31.8.22 - Affidavit –Ms Birch;

(c) 17.2.23 - Affidavit - Ms Birch;

(d) 5.5.23 - Affidavit – Mr C;

(e) 5.5.23 - Affidavit – Mr D;

(f) 8.5.23 - Affidavit of Ms Birch;

(g) 23.05.23 Case Summary Ms Birch;

(h) 25.05.23 Affidavit of Ms Birch;

(i) 25.05.23 Case Outline Mr Simon;

(j) 30.05.23 – ORDER;

(k) 01.06.2023 ORDER;

(l) 07.04.2022 Affidavit Ms Birch; and

(m) 05.07.2021 Initiating Application Final Orders

2. The release referred to in paragraph 1 hereof is strictly limited to the documents in paragraph 1 hereof and strictly limited to the use of those documents in the District Court Proceedings described as ….

3. Each of the parties do bear their own costs of and incidental to the said Applications.

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.

Background

Background to the litigation

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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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