FAMILY COURT OF AUSTRALIA
| BERGMAN & BERGMAN (NO. 4) | [2008] FamCA 525 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Use and disclosure of documents - Release from implied undertaking –Email produced pursuant to court from commercial solicitor - Collateral or ulterior purpose – Police Investigation – Special circumstances – Exercise of discretion – Stay of Order |
| Family Law Rules 2004 (Cth) Rule 15.27 |
| Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 Commonwealth v Temwood Holdings Pty Ltd & Ors (2001) 25 WAR 31; [2001] WASC 282 Crest Homes v Marks (1987) 2 All ER 1074 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Home Office v Harman [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338 |
| APPLICANT: | MR BERGMAN |
| RESPONDENT: | MRS BERGMAN |
| POTENTIAL THIRD PARTY: | MR SARINSSON |
| POTENTIAL FOURTH PARTY: | MR PORTER |
| FILE NUMBER: | MLF | 5245 | of | 2005 |
| DATE DELIVERED: | 30 MAY 2008 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 19 and 20 MAY 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR ST JOHN SC |
| SOLICITOR FOR THE APPLICANT: | CAROLINE COUNSEL FAMILY LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MS NIKOU SC |
| SOLICITOR FOR THE RESPONDENT: | CAREW COUNSEL |
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…
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- Bergman and Bergman (No. 4) [2008] FamCA 525
- Case
- [2008] FamCA 525
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether to grant authorisation for the disclosure of an email dated 4 March 2005 and documents produced by solicitors pursuant to a subpoena. This disclosure was sought for the purpose of providing these materials to the aforementioned police forces.
Young J reasoned that the authorisation for disclosure was appropriate in the circumstances. The court applied principles relating to the disclosure of sensitive documents in family law proceedings, balancing the need for transparency and the administration of justice with potential privacy concerns. The court ultimately ordered that the Case Guardian, on behalf of the husband, be authorised to disclose and provide a true copy of the specified email and documents to the Victorian Police, Australian Federal Police, or the Fiji Police. The operation of this order, along with the publication of the reasons for judgment and the email itself, was stayed until 1 July 2008 or the determination of any Full Court Appeal, whichever date last occurred. 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:
1.
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.
2.
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.
3.
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
4.
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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