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…
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- AGLC
- Bergman and Bergman (No. 6) [2008] FamCA 710
- Case
- [2008] FamCA 710
- Decision Date
CaseChat Overview and Summary
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
1.
THAT order 1 in the amended Application in a Case filed by the Case Guardian on 11 July 2007 be dismissed.
2.
THAT order 1 in the Application in a Case filed by the Case Guardian on 22 May 2008 be dismissed.
3.
THAT orders 1 and 2 of the wife’s response filed 28 May 2008 be otherwise dismissed.
4.
THAT orders 1, 2 and 3 of the Amended Response of Mr Porter be otherwise dismissed.
5.
That order 1 of the Response of Mr Sarinsson filed 7 June 2007 be otherwise dismissed.
6.
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.
7.
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
8.
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
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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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