Bergman & Bergman - [2008] FamCAFC 207

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN

[2008] FamCAFC 207

FAMILY LAW - APPEAL – SPOUSAL MAINTENANCE – INTERIM – where the trial judge dismissed an application to discharge an earlier interim spousal maintenance order – whether the trial judge adequately considered the evidence which was before him concerning the change in the appellant’s financial position – reference to Family Law Act 1975 (Cth) s 83(2) – no adequate reasons for trial judge’s decision – error of principle established which caused substantial injustice to the appellant – leave to appeal granted – appeal allowed – application remitted for rehearing.

FAMILY LAW - APPEAL – INTERIM COSTS ORDER – where the trial judge ordered that the appellant pay the respondent $100,000.00 “by way of security” for costs of the litigation – reference to principles relating to interim costs orders (also termed “Barro orders”) – whether the trial judge erred in making interim costs order against the husband personally – leave to appeal granted – appeal allowed – application remitted for rehearing.

FAMILY LAW - APPEAL – REIMBURSEMENT OF TAX – where the trial judgment does not include a determination or mention of the appellant’s application for reimbursement of tax – no reasons provided – leave to appeal granted – appeal allowed – application remitted for rehearing.

Family Law Act 1975 (Cth) s 83(2)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bennett & Bennett (1991) FLC 92-191
Barro & Barro (Unreported, Family Court of Australia, Strauss J, 15 September 1980)
Barro & Barro (Unreported, Full Court of the Family Court of Australia, 6 March 1981)
Rutherford & Rutherford (1991) FLC 92-255
Zschokke (1996) FLC 92-693

APPLICANT/APPELLANT:

Mr Bergman

RESPONDENT:

Ms Bergman

FILE NUMBER:

MLF

5245

2003

APPEAL NUMBER:

2007

DATE DELIVERED:

18 December 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Faulks DCJ and Finn J

HEARING DATE:

5 May 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 September 2007

LOWER COURT MNC:

[2007] FamCA 1122

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr St John SC

SOLICITOR FOR THE APPELLANT:

Caroline Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC with Ms Johns

SOLICITOR FOR THE RESPONDENT:

Marshalls & Dent

Orders

That leave to appeal Orders 1, 2 and 3 of the orders of the Honourable Justice Mushin made on 21 September 2007 be granted.
That the appeal be allowed.
That Orders 1, 2 and 3 of the orders of the Honourable Justice Mushin made on 21 September 2007 be set aside.
That the application of the husband for the orders sought in paragraphs 1 and 4(a) of Part D of the Application in a Case filed on behalf of the husband on 20 July 2006 and the application of the wife for the order sought in paragraph 6 of Part B of the Response to an Application in a Case filed on behalf of the wife on 15 August 2006,…

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.

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Details

Case: [2008] FamCAFC 207
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case of Bergman & Bergman involved an appeal by the husband against decisions made by Justice Mushin concerning spousal maintenance, interim costs orders, and reimbursement of tax. The husband contested the trial judge's dismissal of his application to discharge an interim spousal maintenance order, arguing that the trial judge had failed to adequately consider the evidence regarding his changed financial circumstances. The husband also challenged the interim costs order made against him personally, and the failure of the trial judgment to address his application for reimbursement of tax.

The court was required to determine whether the trial judge's decisions were made in error and whether the husband's appeal was justified. Specifically, the court needed to assess whether the trial judge had adequately considered the evidence concerning the husband's financial position, whether the interim costs order was appropriate, and whether the trial judge's failure to mention the tax reimbursement application constituted an error warranting a rehearing.

The court found that the trial judge did not adequately consider the evidence regarding the husband's financial position, which led to an error of principle that caused substantial injustice. The court also held that the trial judge erred in making the interim costs order against the husband personally and did not provide any reasons for not addressing the tax reimbursement application. The court concluded that these errors warranted the grant of leave to appeal, and the appeal was allowed. The orders made by Justice Mushin were set aside, and the applications for spousal maintenance, interim costs, and tax reimbursement were remitted for rehearing before a different judge.

Orders

Orders of the court

That leave to appeal Orders 1, 2 and 3 of the orders of the Honourable Justice Mushin made on 21 September 2007 be granted.

That the appeal be allowed.

That Orders 1, 2 and 3 of the orders of the Honourable Justice Mushin made on 21 September 2007 be set aside.

That the application of the husband for the orders sought in paragraphs 1 and 4(a) of Part D of the Application in a Case filed on behalf of the husband on 20 July 2006 and the application of the wife for the order sought in paragraph 6 of Part B of the Response to an Application in a Case filed on behalf of the wife on 15 August 2006, be remitted for rehearing before a judge other than the Honourable Justice Mushin.

(a) That within 28 days of the date of these orders all parties be at liberty to file and serve any written submissions in relation to the costs of the appeal.

(b) That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.

(c) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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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