Bergman and Bergman (No. 2) - [2008] FamCA 414

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN (NO. 2)

[2008 ] FamCA 414

FAMILY LAW – COSTS – Costs of Interim Proceedings

APPLICANT:

MR BERGMAN

RESPONDENT:

MS BERGMAN

POTENTIAL THIRD PARTY:

MR SARINSSON

POTENTIAL FOURTH PARTY:

MR PORTER

FILE NUMBER:

MLF

5245

2003

DATE DELIVERED:

30 MAY 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

30 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ST JOHN SC

SOLICITOR FOR THE APPLICANT:

CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

Mr GEDDES QC with Ms JOHNS

SOLICITOR FOR THE RESPONDENT:

MARSHALLS & DENT

THE POTENTIAL THIRD PARTY:

IN Person

SOLICITOR FOR THE POTENTIAL THIRD PARTY :

N / A

COUNSEL FOR THE POTENTIAL FOURTH PARTY:

MS NIKOU SC

SOLICITOR FOR THE POTENTIAL FOURTH PARTY:

CAREW COUNSEL PTY LTD

Orders

IT IS ORDERED:

THAT the Case Guardian, on behalf of the husband, be authorised to disclose and provide a true copy to the Victorian Police, Australian Federal Police or the Fiji Police of the:
(a)email dated Friday 4 March 2005, 11.34 a.m., from Mr Porter to Mr Lewin; and
(b)documents produced to this court by Mills Oakley, solicitors pursuant to the subpoena dated 4 April 2005 issued to Mr Porter.
THAT the operation of this order be stayed until 1 July 2008 or until the date of hearing and determination of any Full Court Appeal that may be filed, whichever date last occurs.
THAT this order and these Reasons for Judgment (containing the whole of the email document identified in Order 1 hereof) be likewise restricted from publication outside of this court or circulation until the last of such future dates identified in order 2 hereof occurs.

IT IS CERTIFIED

THAT pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel for each of the parties in this hearing.

IT IS NOTED that publication of this judgment under the pseudonym Bergman & Bergman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2003

MR BERGMAN

Applicant

And

MS BERGMAN

Respondent

And

MR SARINSSON
Potential Third Party

And

MR PORTER
Potential Fourth Party

EX TEMPORE REASONS FOR JUDGMENT

I have in the matter of Bergman and the potential third party, Mr Porter, heard argument and delivered written reasons for judgment and handed down orders this morning. This matter was before me on 19 and 20 May 2008. Senior counsel appeared without junior for both parties. Instructing solicitors were in court for all or at least the great majority of the proceedings. The orders that I have pronounced are or should be clear in their effect and meaning. Certain documents subject to an appropriate stay are available for a police investigation though that, of course, does not require the police to take any particular action and they may be satisfied from their own investigations that there is or is not any…

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 Bergman and Bergman (No. 2)

Details

AGLC: Bergman and Bergman (No. 2) [2008] FamCA 414
Case: [2008] FamCA 414
Decision Date: 30 May 2008

CaseChat Overview and Summary

In the matter of *Bergman and Bergman (No. 2)*, Young J of the Family Court of Australia considered an application by a Case Guardian, appointed on behalf of the husband, for authorisation to disclose certain documents to the Victorian Police, Australian Federal Police, and the Fiji Police. The dispute concerned the disclosure of an email and other documents produced to the court by solicitors.

The primary legal issue before the court was whether to grant the Case Guardian leave to disclose these documents to law enforcement agencies. This involved considering the implications of such disclosure, particularly in light of potential publication restrictions and the timing of any Full Court Appeal.

Young J reasoned that the disclosure was warranted, authorising the Case Guardian to provide a true copy of the specified email and documents to the named police forces. The court also imposed a stay on the operation of this order until 1 July 2008, or the conclusion of any Full Court Appeal, whichever date occurred later. Furthermore, the order and the reasons for judgment, including the content of the email, were restricted from publication or circulation outside the court until the same future date. The court also certified that the matter reasonably required the attendance of counsel, including Senior Counsel, for each party.

Orders

Orders of the court

IT IS ORDERED:

THAT the Case Guardian, on behalf of the husband, be authorised to disclose and provide a true copy to the Victorian Police, Australian Federal Police or the Fiji Police of the:

(a) email dated Friday 4 March 2005, 11.34 a.m., from Mr Porter to Mr Lewin; and

(b) documents produced to this court by Mills Oakley, solicitors pursuant to the subpoena dated 4 April 2005 issued to Mr Porter.

THAT the operation of this order be stayed until 1 July 2008 or until the date of hearing and determination of any Full Court Appeal that may be filed, whichever date last occurs.

THAT this order and these Reasons for Judgment (containing the whole of the email document identified in Order 1 hereof) be likewise restricted from publication outside of this court or circulation until the last of such future dates identified in order 2 hereof occurs.

IT IS CERTIFIED

THAT pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel for each of the parties in this hearing.

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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