Warin & Warin (No 5)

[2022] FedCFamC1F 452

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Warin & Warin (No 5) [2022] FedCFamC1F 452

File number(s):

MLC 7368 of 2020

Judgment of:

WILSON J

Date of judgment:

21 June 2022

Catchwords:

FAMILY LAW – IMPLIED UNDERTAKING – application to release undertaking imposed by Hearne v Street – leave granted.

Cases cited:

Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10

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

Hearne v Street (2008) 235 CLR 125

Lazarus Estates Limited v Beasley [1956] 1 QB 702

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Victorian Building Authority v Andriotis (2019) 268 CLR 168

Division:

Division 1 First Instance

Number of paragraphs:

8

Date of last submission/s:

28 April 2022

Date of hearing:

21 June 2022

Place:

Melbourne

Solicitor for the Applicant:

Vadarlis & Associates

Solicitor for the First  and Second Respondent:

Sebastian Rubera & Associates

Solicitor for the Third and Fourth Respondents:

Maddocks Lawyers

ORDERS

MLC 7368 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WARIN

Applicant

AND:

MR WARIN

Respondent

ORDER MADE BY:	WILSON J
DATE OF ORDER:	21 JUNE 2022

THE COURT ORDERS THAT:

1.The wife has leave to use the documents recorded in paragraphs 24(a)-(g) of her affidavit made 6 April 2022 in the Child Support Authority application. 

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 the pseudonym Warin & Warin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. Application has been made by the wife to be released from the undertaking imposed upon her pursuant to the decision of the High Court in Hearne v Street.[1] 

   [1] (2008) 235 CLR 125. The implied undertaking has been pronounced in Harman v Secretary of State of the Home Department [1983] 1 AC 280 and Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10.

2. In essence, in the absence of the Court's leave, a party to litigation compelled to disclose documents or information by a court process may not use for any purpose documents or information for a purpose otherwise than the one for which the document or information is given. 

3. In this case, the husband has been assessed for child support liability at zero.  The wife is of the view that his assessment is erroneous, having regard to information obtained in this litigation.  She wishes to use documents enumerated in paragraph 24 of her affidavit made 6 April 2022 to inform Child Support Authority (“CSA”) that the husband should be reassessed.  The child to which the assessment relates is a student at a very expensive private school. 

4. The wife is of the view that the husband misrepresented his true financial position in order to obtain the zero assessment for child support. 

5. On behalf of the husband, it was submitted that this Court has no jurisdiction to make the order sought.  I disagree.  The implied undertaking arises pursuant to rules of court.  Leave to use the information or documents otherwise burdened by the undertaking arises from authority that has construed rules of court both in Britain and Australia.  The real issue is not whether jurisdiction exists to grant the order sought, but whether, in all of the circumstances the orders sought should be made by the grant of leave.

6. In my view, the answer must be in the affirmative.  An arguable case has emerged on the papers themselves that the husband may have obtained the zero child support assessment by reason of a misrepresentation.  Any such misrepresentation may have been innocent (at one end of the spectrum) or fraudulent (at the other end of the spectrum).  If fraudulent, a line of authority of undeniable veneration exists that fraud unravels everything.[2]

   [2] Lazarus Estates Limited v Beasley [1956] 1 QB 702, SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and Victorian Building Authority v Andriotis and (2019) 268 CLR 168.

7. Of course, I must not be taken to be making any determination on the existence of fraud.  That will fall to the assessors at CSA.

8. For present purposes, it suffices to say that in my view the applicant should be relieved of the implied undertaking by which she would otherwise be bound.  I grant the wife leave to use the documents recorded in paragraphs 24(a)-(g) of her affidavit made 6 April 2022 in the CSA application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       21 June 2022