Bergman & Bergman

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN [2007] FamCA 1122

FAMILY LAW - SPOUSAL MAINENANCE – application for discharge – dismissed.

FAMILY LAW - SECURITY FOR COSTS – application for Barro order – allowed.

Family Law Act 1975 (Cth) s 83

Zschokke and Zschokke (1996) FLC 92-693
P & P (Unreported, Family Court of Australia, Kay J, 9 March 1994)

APPLICANT: Ms Bergman

RESPONDENT: Mr Bergman (by his Case Guardian Miss Bergman)

FILE NUMBER: MLF 5245 Of 2003

DATE DELIVERED: 21 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 22 September 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr St. John

SOLICITOR FOR THE RESPONDENT: Caroline Counsel Family Lawyers

Orders

IT IS ORDERED THAT

1. The husband’s Form 2 Application in a Case filed on 20 July 2006 seeking a discharge of paragraph one of the orders made on 22 December 2005 be dismissed.

2. The husband pay to the wife the sum of $100,000 by way of security for her costs of this litigation.

3. Liberty be reserved to both parties to make submissions at the trial of the applications for final orders in these proceedings with respect to all matters in paragraphs one and two herein.

4. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

IT IS NOTED that publication of this judgment under the pseudonym Bergman and 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

MS BERGMAN

Applicant

And

MR BERGMAN (BY HIS CASE GUARDIAN MISS BERGMAN)

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 22 December 2005 an order was made by Young J requiring the husband to “pay or cause to be paid to the wife for her maintenance the sum of $1,600 per week (clear of deduction or expense), commencing 26 December 2005”. The husband has sought the discharge of that order.

2. By way of response, the wife seeks dismissal of that application together with an order that the sum of $100,000 be released to her solicitors “by way of a Barro Order”.  The wife's original application sought the sum of only $50,000 but during the hearing of these applications, senior Counsel for the wife sought leave to make an oral application to amend that figure to $100,000 which oral application I now grant.

3. Those competing applications are the subjects of these reasons for judgment.

BACKGROUND FACTS

1. The husband is aged 73 years and the wife is aged 62 years. The parties commenced cohabitation in 1988 and married in August 1995. They separated in August 2003 and have lived separately and apart since that time.

2. The parties commenced litigation in this Court within a few days of their separation.  Litigation between them has involved numerous applications for interim orders, both procedural and…