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Bergman and Bergman (No. 6)

Bergman and Bergman (No. 6)

Case [2008] FamCA 710 4 August 2008

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FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN (NO. 6)

[2008] FamCA 710

FAMILY LAW – PROPERTY – Interlocutory hearing – accrued jurisdiction – Single justiciable controversy – Evaluation of the six Warby factors – Exercise of discretion – Whether respondents could or should be joined to the s 79 proceedings – Whether proposed respondents are “necessary parties” ss90AE and 90AF considerations

Family Law Act 1975 (Cth) ss 79, 90AE, 90AF and 90AK
Family Law Rules 2004 (Cth) Rules 1.12,5.10 6.02, 6.03, 6.04 and 11.10

AS & GW & AH (2006) FLC 93-265
Australia Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; (2001) 177 ALR 329
Bishop & Bishop (2003) 30 Fam LR 108; (2003) FLC 93-144
Christie & Christie [2007] FamCA 125; (2007) Fam LR 181
Fencott v Muller (1984) 152 CLR 570
H & H (2007) 36 Fam LR 64
Ireland & Ireland & Collier (Third Party) (1986) FLC ¶91-731; (1986) 11 Fam LR 104
K & K (2005) FLC 93-237; (2006) 34 Fam LR 266
Mckay & Mckay (1984) FLC ¶91-573;(1984) 73 FLR 313; (1984) 59 ALR 117 (1984) 9 Fam LR 850
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Prince v Prince (1984) FLC 91-501
Re Wakim; Ex Parte McNally and Ors (1999) 163 ALR 270
Smith & Smith (No. 2)(1985) FLC ¶91-604;(1985) 10 Fam LR 283 (1985) 81 FLR 251 (1985) 64 ALR 227
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
Warby & Warby (2001) FLC 93-091; 28 Fam LR 443
B Pty Ltd and Ors & K & K (2008) Fam CAFC 113

APPLICANT:

MR BERGMAN (via his appointed Case Guardian)

RESPONDENT:

MRS BERGMAN

POTENTIAL THIRD PARTY:

MR SARINSSON

POTENTIAL FOURTH PARTY:	MR PORTER
FILE NUMBER:	MLF	5245	of		2005

DATE DELIVERED:

4 AUGUST 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

23 OCTOBER 2007, 18 and 19 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ST JOHN SC and
MR STRUM

SOLICITOR FOR THE APPLICANT:

CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR RESPONDENT:

MR GEDDES QC and
MS JOHNS

SOLICITOR FOR RESPONDENT:

MARSHALLS AND DENT

SOLICITOR FOR POTENTIAL THIRD PARTY:

IN PERSON

COUNSEL FOR POTENTIAL FOURTH PARTY:

CAREW COUNSEL

SOLICITOR FOR POTENTIAL FOURTH PARTY:

MS NIKOU SC

Orders

THAT order 1 in the amended Application in a Case filed by the Case Guardian on 11 July 2007 be dismissed.
THAT order 1 in the Application in a Case filed by the Case Guardian on 22 May 2008 be dismissed.
THAT orders 1 and 2 of the wife’s response filed 28 May 2008 be otherwise dismissed.
THAT orders 1, 2 and 3 of the Amended Response of Mr Porter be otherwise dismissed.
That order 1 of the Response of Mr Sarinsson filed 7 June 2007 be otherwise dismissed.
THAT the application of the Wife for final orders filed 21 August 2003 be otherwise adjourned to the further…

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. 6)

Details

AGLC: Bergman and Bergman (No. 6) [2008] FamCA 710
Case: [2008] FamCA 710
Decision Date: 4 August 2008

CaseChat Overview and Summary

In the matter of *Bergman and Bergman (No. 6)*, Young J of the Family Court of Australia considered applications made by the Case Guardian, the wife, Mr Porter, and Mr Sarinsson. The dispute concerned various interlocutory orders sought in relation to proceedings between the parties.

The primary legal issues before the court were the determination of the applications for interlocutory orders filed by the Case Guardian, Mr Porter, and Mr Sarinsson, as well as the wife's application for final orders. The court was also required to consider the question of costs associated with the interlocutory hearing.

Young J dismissed the applications made by the Case Guardian and Mr Sarinsson, and otherwise dismissed the orders sought by the wife, Mr Porter, and Mr Sarinsson in their respective responses. The wife's application for final orders was adjourned to a further listing date for mention and case management orders. The question of costs was also adjourned to the same date. The court certified that the matter reasonably required the attendance of Senior Counsel and Counsel for all parties.

Orders

Orders of the court

THAT order 1 in the amended Application in a Case filed by the Case Guardian on 11 July 2007 be dismissed.

THAT order 1 in the Application in a Case filed by the Case Guardian on 22 May 2008 be dismissed.

THAT orders 1 and 2 of the wife’s response filed 28 May 2008 be otherwise dismissed.

THAT orders 1, 2 and 3 of the Amended Response of Mr Porter be otherwise dismissed.

That order 1 of the Response of Mr Sarinsson filed 7 June 2007 be otherwise dismissed.

THAT the application of the Wife for final orders filed 21 August 2003 be otherwise adjourned to the further listing date of 8 August 2008 for mention and case management orders.

THAT the question of costs of the applicant and all respondents of and incidental to this interlocutory hearing be adjourned to the further listing date of 8 August 2008.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel and Counsel for all parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Bergman and Bergman (No. 6) [2008] FamCA 710

Most Recent Citation

Jordan & Sutton (No 2) [2022] FedCFamC1F 850

Cases citing this decision · 2 of 2 shown

Jordan & Sutton (No 2)
[2022] FedCFamC1F 850 Para 10

…In Bergman and Bergman (No. 6) [2008] FamCA 710, Young J declined to order joinder of third parties who were involved in commercial disputes with the husband, who had a Case Guardian, because the commercial disputes did not form part of a single justiciable controversy so as to fall within the Court’s jurisdiction.…
Bergman & Bergman
[2009] FamCAFC 27

…[2008] FamCA 710…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Christie v Christie
[2007] FamCA 125 Para 9

…Ms Nikou also referred to the judgment of Cronin J in Christie & Christie [2007] FamCA 125; (2007) Fam LR 181 where his Honour, at paragraph 82, considers the meaning of “reasonably necessary” for the purposes of granting an injunction under s90AF: “In this case, is it reasonably necessary to make the order? In wha…
Samootin v Wagner
[2006] FamCA 432 Para 3

…r he is entitled to do and clearly Mr [Porter] has to be before the court”.[44] Mr St John relied upon the statement of Kay J in AS & GW & AH [2006] FamCA 432; (2006) FLC 93-265 at paragraph 18: “The Act really does not make provision for the joinder of parties. It provides for the Court to make orders against thir…
Hunt v Hunt
[2006] FamCA 167 Para 6

…Ms Nikou drew attention to paragraph 113 in H & H (2007) 36 Fam LR 64; [2006] FamCA 167 where O’Ryan J upheld the constitutionality of Part VIIIAA and in doing so made the following remarks in relation to the operation of s90AE: “When s 90AE(2) is read in conjunction with s 90AE(3), s 79, and Part VIIIAA generally,…
K & K and Ors
[2005] FamCA 997 Para 4

…The judgment of Morgan J in K & K [2005] FamCA 997; (2005) FLC 93-237; (2006) 34 Fam LR 266 is authority for the position that an application to amend is decided on principles analogous to those of summary dismissal. Her Honour stated that: “It was submitted for the Wife, correctly, that the matters for the Court t…
Bishop & Bishop
[2003] FamCA 240 Para 9

…actor should be carefully evaluated in reference to the specific facts arising in this case.[20] [20] Bishop (2003) 30 Fam LR 108; (2003) FLC 93-144; [2003] FamCA 240 at Paragraph [35].…
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd
[2001] HCA 1

…AS & GW & AH (2006) FLC 93-265 Australia Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; (2001) 177 ALR 329 Bishop & Bishop (2003) 30 Fam LR 108; (2003) FLC 93-144 Christie & Christie [2007] FamCA 125; (2007) Fam LR 181 Fencott v Muller (1984) 152 CLR 570 H & H (2007) 36 Fam LR 64…
Re Wakim; Ex parte McNally
[1999] HCA 27

…850 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Prince v Prince (1984) FLC 91-501 Re Wakim; Ex Parte McNally and Ors (1999) 163 ALR 270 Smith & Smith (No. 2) (1985) FLC ¶91-604;(1985) 10 Fam LR 283 (1985) 81 FLR 251 (1985) 64 ALR 227 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CL…
Fencott v Muller
[1983] HCA 12 Para 1

…ence of accrued jurisdiction in the Federal Court has since been regularly invoked.[11] [10] (1981) 148 CLR 457 at 475. [11] Fencott v Muller (1984) 152 CLR 570.…
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd
[1981] HCA 7

…Fam LR 104 K & K (2005) FLC 93-237; (2006) 34 Fam LR 266 Mckay & Mckay (1984) FLC ¶91-573;(1984) 73 FLR 313; (1984) 59 ALR 117 (1984) 9 Fam LR 850 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Prince v Prince (1984) FLC 91-501 Re Wakim; Ex Parte McNally and Ors (1999) 163 ALR 270 Smith & Smith (No. 2) (1985) FLC ¶91-604;(1985) 10…
Stack v Coast Securities (No 9) Pty Ltd
[1983] HCA 36 Para 6

…In Stack v Coast Securities Pty Ltd (No 9) (1983) 154 CLR 261 the High Court emphasised that the ultimate question in deciding upon whether accrued jurisdiction is available is if there a single justiciable controversy and that therefore must be the central concern when evaluating the evidence.…
Lindon v Commonwealth (No 2)
[1996] HCA 14 Para 4

…hether to permit an amendment are similar to those pertaining to applications to summarily dismiss proceedings. In Lindon v The Commonwealth (No2) ((1996) 70 ALJR 541 at p. 55) Dawson J. said that an opinion of the Court that a case was weak and unlikely to succeed was not, alone, sufficient to warrant termination. H…
FLC 93-279W & W and Anor
[2006] FAMCA 163 Para 9

…, I am taking into account that the current provisions of section 79(10) permit them to participate in the proceedings.” [46] [2006] FamCA 163.…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
79, 90AE, 90AF, 90AK 5 mentions (from Para 6)
Family Law Rules 2004 (Cth)
2 mentions (from Para 8)