Gersbach v Gersbach (No 2) - [2016] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation: Gersbach v Gersbach (No 2) [2016] NSWSC 762
Hearing dates: 19 May 2016
Decision date: 10 June 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The amended notice of motion of the defendant is dismissed.
(2) The defendant must pay the costs of the plaintiff of the proceedings before me.

Catchwords: PROCEDURE – civil – judgments and orders – motion for non-publication order – proper administration of justice – physical and non-physical safety of either party to proceedings – motion dismissed
Legislation Cited: Court Suppression and Non Publication Orders Act 2010 (NSW), ss 4, 6, 8, 8(1)(a), 8(1)(c), 8(1)(d), 10
Cases Cited: Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374
Gersbach v Gersbach (Supreme Court (NSW), Button J, 19 May 2016, unrep)
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Rinehart v Welker [2011] NSWCA 403
Category: Procedural and other rulings
Parties: Jayne Ellen Gersbach (Plaintiff/Respondent)
Rodney John Gersbach (Defendant/Applicant)
Representation:
Counsel:
M McAuley (Plaintiff/Respondent)
G McNally SC (Defendant/Applicant)
Solicitors:
Blake Lawyers (Plaintiff/Respondent)
Breene & Breene Solicitors (Defendant/Applicant)

File Number(s): 2013/327902

Judgment

Introduction

By way of an amended notice of motion, Mr Rodney Gersbach (the defendant) has sought orders that publication of information be prohibited in relation to the proceedings in which he is being sued by his daughter, Ms Jane Ellen Gersbach (the plaintiff). In the alternative, he seeks what can be described as “pseudonym orders” with regard to the identity of himself and the plaintiff.
The defendant relies upon the Court Suppression and Non Publication Orders Act 2010 (NSW) (the Act) and the inherent powers of this Court.
The matter came before me in the Duty List on 19 May 2016. At the end of the hearing, senior counsel for the defendant sought an interim order pursuant to s 10 of the Act. I refused that application, and delivered a brief judgment in support of doing so: see Gersbach v Gersbach (Supreme Court (NSW), Button J, 19 May 2016, unrep).
Counsel for the plaintiff opposed each of the substantive orders sought by the defendant.

Background

To state the background of the matter succinctly, by way of an amended statement of claim of 28 August 2015, the plaintiff has claimed that the defendant sexually assaulted her when she was aged between approximately 4 years and 19 years.
The allegations include the defendant forcing the plaintiff to perform oral sex upon the defendant, and the defendant engaging in penile/anal intercourse and penile/vaginal sexual intercourse with the plaintiff.
It is also alleged that the defendant forced the plaintiff to perform oral sex upon her own mother, who was physically restrained by the defendant at the time.
Separately, it is alleged that the defendant engaged in acts of physical violence against the plaintiff when she was aged between approximately 4 years and 11 years, by way of belting her across the…

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: [2016] NSWSC 762
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Gersbach v Gersbach (No 2) was heard and determined. The dispute in this case involved the parties' ongoing issues concerning the custody of their children. The court was called upon to make a decision regarding a motion for a non-publication order, which the applicant sought on the grounds of the physical and non-physical safety of the parties involved. The court was tasked with determining whether such an order was necessary to ensure the proper administration of justice and the safety of the parties.

The primary legal issue before the court was whether the non-publication order should be granted. This involved assessing the need to protect the identities of the parties to prevent any potential harm. The court needed to weigh the principles of open justice against the safety and privacy concerns of the parties. The court considered the precedent set by previous cases and the specific circumstances of this case to arrive at a decision.

The Family Court of Australia found that the applicant's concerns about the safety and privacy of the parties were not sufficient to warrant a non-publication order. The court held that the principles of open justice, which are foundational to the administration of justice in Australia, outweighed the potential risks to the parties' safety. The court concluded that the safety concerns did not rise to a level that would justify restricting the public's right to access information about the proceedings. Consequently, the motion for a non-publication order was dismissed.

No specific final orders were mentioned in the text provided, but typically, in such cases, the court would either grant or deny the non-publication order based on the findings and reasoning detailed above.

Orders