Bergman and Bergman (No. 4)

Case [2008] FamCA 525


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
Bergman v Porter [2007] FamCA 161
BritishAmerican Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571; [2003] VSCA 43

Commonwealth v Temwood Holdings Pty Ltd & Ors (2001) 25 WAR 31; [2001] WASC 282

Crest Homes v Marks (1987) 2 All ER 1074
Customs and Excise Commissioners v A E Hamlin & Co (a firm) [1983] 3 All ER 654
EMI Records Ltd v Spillane [1986] 2 All ER 1016

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684

Home Office v Harman [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338
Riddick v Thames Board MillsLtd [1977] QB 881; [1977] 3 WLR 63; [1977] 3 All ER 677
Springfield Nominees Pty Ltd and ors v Bridgelands Securities Ltd and ors (1992) 110 ALR 685

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:

  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

  1. 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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Details
AGLC
Bergman and Bergman (No. 4) [2008] FamCA 525
Case
[2008] FamCA 525
Decision Date

CaseChat Overview and Summary

In the matter of *Bergman and Bergman (No. 4)*, Young J of the Family Court of Australia was required to determine an application concerning the disclosure of certain documents. The dispute involved the husband, represented by a Case Guardian, and the wife, with the application seeking authorisation for the Case Guardian to provide specific documents to law enforcement agencies, namely the Victorian Police, Australian Federal Police, and the Fiji Police.

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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