FAMILY COURT OF AUSTRALIA
| HERMANN & HERMANN (NO 2) | [2014] FamCA 587 |
| FAMILY LAW – PRACTICE & PROCEDURE – Where the husband seeks leave to provide material from the family law proceedings for use in Supreme Court proceedings – consideration of the implied undertaking – consideration of whether “special circumstances” exist – where commonality of the proceedings is a significant factor – order made releasing the husband from the implied undertaking in relation to a list of documents. |
| Family Law Act 1975 (Cth) |
British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2003] VSCA 43
Commissioner of Taxation & Darling and Anor [2014] FamCAFC 59
Hearne v Street (2008) 235 CLR 125
Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315
| Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC Re Springfield Nominees Pty Ltd [1992] FCA 472 |
| APPLICANT: | Mr Hermann |
| RESPONDENT: | Ms Hermann |
| FILE NUMBER: | MLC | 4873 | of | 2012 |
| DATE DELIVERED: | 30 July 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATES: | 1 & 15 July 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bartfeld QC with Ms Vohra |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Dickson QC with Mr Holmes |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
ORDERS
IT IS ORDERED THAT
The husband be at liberty to use those documents and information, or parts thereof, contained in the list of documents being Annexure “A” to these orders for the purpose of the proceedings instituted by the husband in the Supreme Court of Victoria at Melbourne (or such other Court if venue is transferred) in suit numbers … and ...
All questions of costs be reserved for determination.
By 4.00 pm on 20 August 2014 the husband and the wife file and serve any written submissions in support of any application for costs arising out of or incidental to the husband’s application in a case filed 3 June 2014.
By 4.00 pm on 3 September 2014 the husband and wife file and serve any written submissions in reply to any application for costs.
The husband’s application in a case filed 3 June 2014 and the wife’s response to an application in a case filed 1 July 2014 be otherwise dismissed save and except for any applications for costs.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.
“A”
| Document | Date | Sections to be provided |
| Order | 26 June 2012 | Paragraphs 9 to 11 |
| Order | 19 October 2012 | Complete document |
| Order | 12 April 2013 | Complete document |
| Order | 20 December 2013 | Complete document |
| Order | 4 February 2014 | Complete document |
| Order | 12 February 2014 | Complete document |
| Initiating application filed by the husband | 31 May 2012 | Front page |
| Response to initiating application filed by the wife | 15 June 2012 | Final orders sought – paragraphs 4 to 8 Interim orders sought – paragraphs 7 to 12 |
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- AGLC
- Hermann and Hermann (No 2) [2014] FamCA 587
- Case
- [2014] FamCA 587
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the husband should be granted permission to use the specified documents and information in his Supreme Court proceedings. This involved considering the nature of the documents, their relevance to the external litigation, and any potential prejudice to the wife.
Macmillan J ordered that the husband be at liberty to use the documents and information listed in Annexure "A" for the purpose of his proceedings in the Supreme Court of Victoria. The court reserved all questions of costs, directing both parties to file written submissions regarding any applications for costs by specific dates. The husband's application filed on 3 June 2014 and the wife's response filed on 1 July 2014 were otherwise dismissed, except in relation to any applications for costs. The court also certified that the matter reasonably required the attendance of counsel, including senior counsel.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The husband be at liberty to use those documents and information, or parts thereof, contained in the list of documents being Annexure “A” to these orders for the purpose of the proceedings instituted by the husband in the Supreme Court of Victoria at Melbourne (or such other Court if venue is transferred) in suit numbers … and ...
2.
All questions of costs be reserved for determination.
3.
By 4.00 pm on 20 August 2014 the husband and the wife file and serve any written submissions in support of any application for costs arising out of or incidental to the husband’s application in a case filed 3 June 2014.
4.
By 4.00 pm on 3 September 2014 the husband and wife file and serve any written submissions in reply to any application for costs.
5.
The husband’s application in a case filed 3 June 2014 and the wife’s response to an application in a case filed 1 July 2014 be otherwise dismissed save and except for any applications for costs.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.
“A”
Document
Date
Sections to be provided
Order
26 June 2012
Paragraphs 9 to 11
Order
19 October 2012
Complete document
Order
12 April 2013
Complete document
Order
20 December 2013
Complete document
Order
4 February 2014
Complete document
Order
12 February 2014
Complete document
Initiating application filed by the husband
31 May 2012
Front page
Response to initiating application filed by the wife
15 June 2012
Final orders sought – paragraphs 4 to 8
Interim orders sought – paragraphs 7 to 12
Amended response filed by the wife
22 June 2012
Final orders sought – paragraphs 4 to 8
Interim orders sought – paragraphs 7 to 11, and 13
Reply filed by the husband
25 June 2012
Complete document
Amended reply filed by the husband
21 December 2012
Complete document
Application in a case filed by the husband
20 February 2013
Complete document
Application in a case filed by the wife
5 April 2013
Complete document
Response to an application in a case filed by the husband
12 April 2013
Complete document
Further amended response to amended initiating application filed by the wife
30 August 2013
Final orders sought – paragraphs 4 to 8, 6 and 7
Interim orders sought – paragraphs 7 to 11, and 13
Further amended reply filed by the husband
23 September 2013
Complete document
Application in a case filed by the husband
4 February 2014
Complete document
Affidavit of the husband
30 May 2012
Paragraphs 1 to 7
Affidavit of the husband
25 June 2012
Paragraphs 1, 2, 30 to 37, 51 to 56
Annexures GH1, GH2
Affidavit of the husband
21 December 2012
Complete document
Affidavit of the husband
12 April 2013
Complete document
Affidavit of the husband
22 November 2013
Paragraphs 1 to 12, 48 to 99
Annexures GH5, GH6, GH7, GH8
Affidavit of Mark Thompson
6 December 2013
Complete document
Affidavit of the husband
31 January 2014
Paragraphs 1 to 4, 22 to 67
Annexure GH2
Affidavit of Ms B
4 February 2014
Complete document
Affidavit of the wife
15 June 2012
Paragraphs 60 to 72
Annexures D, E
Affidavit of the wife
5 April 2013
Complete document
Affidavit of Mr C
17 October 2013
Complete document
Affidavit of the wife
13 December 2013
Paragraphs 1 to 10, 20(m) to 20(s), 21 to 82
Annexures CMH3, CMH4, CMH5, CMH6, CMH7, CMH8, CMH9
Affidavit of Mr D
9 December 2013
Complete document
Affidavit of Mr E
13 December 2013
Complete document
Wife’s outline
7 February 2014
Section A, B, C and D
(“Financial”, paragraphs 1 to 4)
Husband’s outline of case
6 February 2014
Section A, B, C (paragraphs 1 to 22) and D
Wife’s summary of issues
6 September 2013
“Property Matters”, paragraphs 1 to 5
Wife’s submissions
24 September 2012
Complete document
Wife’s facts and contentions
24 September 2012
Complete document
Husband’s submissions in response to submissions on behalf of the wife
9 October 2012
Complete document
Subpoena issued to I Solicitors
10 February 2014
Complete document
Subpoena issued to Mr F
23 December 2013
Complete document
Subpoena to Ms B
20 December 2013
Complete document
Cohabitation Agreement
May 2006
Complete document
Financial Agreement
19 March 2007
Complete document
Deed of Variation of Financial Agreement
22 May 2009
Complete document
Section 90D Agreement
12 February 2014
Complete document
Binding Child Support Agreement
12 February 2014
Complete document
File provided by G & Co
N/A
Complete file
File provided by H (including document produced under subpoena)
N/A
Complete file
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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