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

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.
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.
In this case, the…

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 Warin & Warin (No 5)

Details

AGLC: Warin & Warin (No 5) [2022] FedCFamC1F 452
Case: [2022] FedCFamC1F 452
Decision Date

CaseChat Overview and Summary

The applicant, Ms Warin, sought leave to be released from an undertaking imposed pursuant to the decision of the High Court in Hearne v Street. The undertaking, an implied undertaking that arose pursuant to rules of court, prohibited Ms Warin from using documents or information obtained during litigation for a purpose other than the one for which they were given. The husband had been assessed for child support liability at zero, and Ms Warin believed this assessment to be erroneous. She wished to use documents obtained during the litigation to inform the Child Support Agency that the husband should be reassessed. The husband argued that the Court had no jurisdiction to grant the order sought, but the Court disagreed. The Court found that an arguable case had emerged that the husband may have obtained the zero child support assessment by reason of a misrepresentation, which if fraudulent, could unravel everything. The Court granted Ms Warin leave to use the documents recorded in paragraphs 24(a)-(g) of her affidavit made 6 April 2022 in the Child Support Agency application. The Court emphasized that it was not making any determination on the existence of fraud, which would fall to the assessors at the Child Support Agency.

The legal issues in this case were whether the Court had jurisdiction to grant the order sought and whether the applicant should be relieved of the implied undertaking by which she would otherwise be bound. The Court found that the implied undertaking arose pursuant to rules of court and that leave to use the information or documents otherwise burdened by the undertaking arose from authority that had construed rules of court both in Britain and Australia. The real issue was whether, in all of the circumstances, the orders sought should be made by the grant of leave. The Court found that the answer must be in the affirmative, as an arguable case had emerged that the husband may have obtained the zero child support assessment by reason of a misrepresentation.

The Court granted Ms Warin leave to use the documents recorded in paragraphs 24(a)-(g) of her affidavit made 6 April 2022 in the Child Support Agency application. The Court emphasized that it was not making any determination on the existence of fraud, which would fall to the assessors at the Child Support Agency. The Court found that the applicant should be relieved of the implied undertaking by which she would otherwise be bound. The Court noted that any such misrepresentation may have been innocent or fraudulent, and if fraudulent, a line of authority of undeniable veneration exists that fraud unravels everything. The Court found that the applicant should be granted leave to use the documents to inform the Child Support Agency that the husband should be reassessed.

Orders