Yordanova & Tanaka
[2024] FedCFamC1F 497
•16 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yordanova & Tanaka [2024] FedCFamC1F 497
File number(s): SYC 2995 of 2017 Judgment of: ALTOBELLI J Date of judgment: 16 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEEDURE – Where an application is made to release the parties from a Harman undertaking – Where both parties consent to the release of filed material – Where there is a disagreement over whether to release documents produced in discovery and under subpoena – Where the objectives of Federal Circuit and Family Court of Australia Act justify the release of all documents. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 5 Cases cited: Harman v Secretary of State [1983] 1 AC 280 Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 16 July 2024 Place: Sydney via videoconference Solicitor for the Applicant: Craddock Murray Neumann Lawyers Solicitor for the Respondent: Keleher Lawyers ORDERS
SYC 2995 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TANAKA
Applicant
AND: MR YORDANOVA
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
16 JULY 2024
THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders are made by consent in accordance with the document marked “A” dated this day and attached hereto.
THE COURT ORDERS THAT:
2.Orders 1(g), (h), (i), (j) and (k) of the Applicant’s Minute of Order dated 16 July 2024 are made, and are reproduced as 1(y), (z), (aa), (bb) and (cc) respectively in the document marked “A” dated this day and attached hereto.
3.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.
“A”
FAMILY LAW ACT 1975IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEYFile No. SYC2995/2017
BETWEEN
MS TANAKA
(Applicant/Wife)
and
MR YORDANOVA(Respondent/Husband)
MINUTE OF ORDER
THE COURT ORDERS THAT:
1.That the Applicant/Ms Tanaka, the Respondent/Mr Yordanova and their legal advisors be relieved of their respective implied undertakings (arising from the decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280, approved in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125), and provided by the Applicant and Respondent to this Honourable Court with respect to the use of all documents filed in the substantive proceedings by or on behalf of the Applicant (in the case of the Respondent) or the Respondent (in the case of the Applicant):
a)Mr Yordanova's Initiating Application filed on 21 June 2017;
b)Mr Yordanova's Applicant in a Case filed 21 June 2017
c)Affidavit of Mr Yordanova filed 21 June 2017;
d)Financial Statement of Mr Yordanova filed 21 June 2017;
e)Ms Tanaka's Response to Final Orders filed 24 July 2017
f)Ms Tanaka's Response to Applicant in a Case filed 24 July 2017
g)Affidavit of Ms Tanaka filed 24 July 2017
h)Financial Statement of Ms Tanaka filed 24 July 2017
i)Mr Yordanova's Amended Application for Final Orders dated 1 November 2017
j)Ms Tanaka's Amended Response for Final Orders dated 1 November 2017
k)Ms Tanaka's Applicant in a Proceeding filed 19 January 2018
l)Affidavit of Ms Tanaka filed 19 January 2018
m)Ms Tanaka's Further Amended Response to Final Orders filed 19 January 2018
n)Financial Statement of Ms Tanaka filed 19 January 2018
o)Affidavit of Mr Yordanova filed 2 February 2018;
p)Financial Statement of Mr Yordanova filed 2 February 2018;
q)Affidavit of Ms B filed 2 February 2018;
r)Affidavit of Mr C filed 2 February 2018
s)Affidavit of Mr D filed 2 February 2018
t)Financial Questionnaire of Mr Yordanova filed 18 May 2018;
u)Financial Questionnaire of Ms Tanaka filed 17 May 2018;
v)Balance Sheet (joint) filed 6 June 2018.
w)Interim Orders of the Honourable Justice Watts dated 5 February 2018
x)Final Orders of the Honourable Justice Benjamin dated 21 March 2019.
y)Documents produced by E Chartered Accountants by way of a CD pursuant to a Subpoena issued 1 February 2018;
z)Documents produced by F Financial Services pursuant to a Subpoena issued 1 February 2018;
aa)Documents produced by G Financial Services pursuant to a Subpoena issued 1 February 2018;
bb)Documents produced by ANZ Banking Group pursuant to a Subpoena issued 1 February 2018;
cc)Financial disclosure documents provided by Mr Yordanova and his solicitors relating to:
a. H Pty Ltd, its Loan, and bank accounts;
b. J Bank statement of Mr Yordanova
c. The Loan, bank accounts and credit cards of Mr Yordanova;
d. Bank statements and financial documents relating to K Pty Ltd insofar as they relate to financial transactions with H Pty Ltd and Mr Yordanova,
comprising the file held by the Applicant’s solicitors;
2.That the relief from the implied undertaking referred to in order 2 herein be limited solely to the use of the documents in the Supreme Court of New South Wales proceedings number … (“Supreme Court proceedings”).
3.That the Applicant and Respondent be permitted to provide the said documents to their lawyers in the Supreme Court proceedings and/or to tender them in the Supreme Court proceedings.
4.Such further or other Orders as the Court deems fit.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yordanova & Tanaka has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
I provide the following short ex tempore reasons. By way of an Application in a Proceeding filed on 12 July 2024, Ms Tanaka born 1978 (“the applicant”), asks the Court for orders in relation to the release of, or relief from, the implied undertaking in Harman v Secretary of State [1983] 1 AC 280 (“Harman”).
In effect, the applicant seeks a release from the Harman undertaking. Her application is supported by an affidavit and by an affidavit of her solicitor. Ms Wright appeared today on behalf of the applicant to make oral submissions. Mr Keleher appeared on behalf of Mr Yordanova (“the respondent”), who is the applicant’s former husband. He provided a Minute of Order, and he gave me the benefit of fulsome submissions in relation to the comparatively narrow issues in dispute between the parties. The factual matrix is somewhat complex. It appears that the applicant in the present case entered into consent orders for alteration of property interests in this Court in 2019, as a result of which two properties were left in the name of the applicant.
In separate and ongoing current proceedings in the Supreme Court of New South Wales (“the Supreme Court”), the question of the beneficial ownership of those properties is put in contention by a third-party company, H Pty Ltd. The respondent in the present application is involved in that company and historically has held shares in the company, but currently does not do so. I understand that the major shareholder is a Ms B. I am not sure what the relationship is between Ms B and the respondent, and it probably makes no difference in the present context. The issue in dispute between the parties is not so much in relation to documents that, I think, are clearly covered by the principles of Harman, but further documents that were produced in the Family Court proceedings by way of disclosure, and by way of subpoenas that have been issued.
In short, Mr Keleher, on behalf of the respondent, says that the production of these documents is beyond the classical parameters of the Harman undertaking. Mr Keleher acknowledged that there could be a time in the Supreme Court proceedings when the production of these documents could become relevant and could be sought, but he contends that there are ample processes in the Supreme Court for the production of these documents at the proper time. He contends that now is not the proper time given that the defence has not yet been filed by the applicant in the Supreme Court proceedings. In effect, he says it would be inappropriate at this stage for those documents to be made available.
It is hard for this Court, that is to say, the Federal Circuit and Family Court of Australia Division 1, to avoid at least a preliminary impression that there is far more to this case than meets the eye, and that the interest of the respondent in the Supreme Court litigation is more than just a nominal interest. Of course, that is a matter for the Supreme Court to decide, but in the exercise of the Court’s discretion in the present context, it is an impression that cannot be ignored.
In this Court, s 5 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), sets out certain objects. For example, it says the objects of this Act are “to ensure that justice is delivered by federal courts effectively and efficiently”. It is my view, given that this part of the proceeding is before me and that I am governed by an object that says that justice must be delivered effectively and efficiently, that out of abundant caution the documents in contention, namely, the paragraph (g), (h), (i), (j) and (k) documents, should form part of the release of documents pursuant to the Harman undertaking. On that basis I make the orders that I have made.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 24 July 2024
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