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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- Simon & Birch [2025] FedCFamC2F 181
- Case
- [2025] FedCFamC2F 181
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CaseChat Overview and Summary
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.
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Background to the litigation
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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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