Stinson and Stinson
[2012] FamCA 636
•3 August 2012
FAMILY COURT OF AUSTRALIA
| STINSON & STINSON | [2012] FamCA 636 |
| FAMILY LAW – PRACTICE AND PROCEDURE - Confidentiality agreement - no reason to do more than ask the wife to sign an acknowledgment that she understands her obligations |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Stinson |
| RESPONDENT: | Mr Stinson |
| FILE NUMBER: | MLC | 9869 | of | 2011 |
| DATE DELIVERED: | 3 August 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 3 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Glick SC with Mr Strum |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Ms Grobtuch |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
That paragraphs 1 to 4 of the orders made on 9 July 2012 are discharged.
That the wife forthwith execute an acknowledgement addressed to Mr Hunt and to the husband in the terms of document attached to this order.
That the wife’s firm of solicitors execute an acknowledgement addressed to Mr Hunt in the terms of the annexure relevant to them attached to these orders.
That the husband’s response seeking interim orders filed 18 June 2012 is otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stinson & Stinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9869 of 2011
| Ms Stinson |
Applicant
And
| Mr Stinson |
Respondent
REASONS FOR JUDGMENT
On 18 June 2012, the husband filed his response to the amended application of the wife filed 1 June 2012. In his response, he inter alia sought the following specific order:
That the wife and her solicitor each sign a confidentially agreement in the form annexed hereto and marked “A”, prior to the husband making disclosure of financial documents and information relating to his business interests in the entities which comprise the [B] Group.
The annexure was not attached but I have seen the relevant document, it being attached to the affidavit material.
It was common ground that the husband and his colleague are involved in an extensive list of corporate entities.
In an application in a case filed 18 May 2012, that business colleague sought similar orders.
Late in the day of 26 June 2012, I heard argument from all parties.
On 9 July 2012, I made orders and delivered reasons. The orders included a dismissal of the application by the husband’s colleague filed 18 May 2012 but it did not deal with the interim response of the husband filed 18 June 2012.
On 3 August 2012, in addition to bringing to my attention the inaccuracy of the wording of the orders I made on 9 July 2012, it was noted that I had not determined the husband’s response. Accordingly, these are my reasons for making the orders set out at the commencement of them.
The husband was represented in the proceedings by Mr Geddes of senior counsel whose submission was that the husband was very mindful not to have his commercial material in the public domain and that a confidentiality agreement controlled the ownership of the material. He said:
We’re not presently suggesting that the wife is going to use that material, but someone else might.
And then…
(the husband) simply wants to control ownership of that information and not have it fall into the hands of competitors.
There was agreement that the power to make an order lay in s 114 of the Act.
The wife was represented by Mr Glick of senior counsel who submitted that there was nothing unusual about the situation because there was no attack on the wife at all. Indeed, there was open correspondence between the solicitors that the wife was well aware of her obligations and prepared to specify so in an affidavit. Having regard to the concession to which I have just referred by Mr Geddes, there is no attack on the wife such as would enable me to find that there was a risk that she would use the material inappropriately. In the reconvened hearing on 3 August 2012, Mr Grobtuch the solicitor for the husband who had instructed Mr Geddes agreed that there was no such evidence against the wife.
A situation similar to this arose in the case of Vincenzo and Vincenzo [2012] FamCA 427 however, in that case, there was much suspicion by the husband of the wife as a result of things that he perceived she was doing. The husband wanted a confidentially agreement signed by the wife. I there indicated that there must be some basis upon which I could determine that it was proper to make the injunction, it being a matter within power as set out in s 114 of the Act. I there said that it was appropriate to make an injunction because of the wife’s equivocation and “perhaps dismissive response to the husband’s concerns”. That is not the situation here. There is no basis to make an order in the evidence concerning the wife’s solicitors having regard to their response to the proceedings. In the reasons for judgment that I delivered in this matter on 9 July 2012, I said, albeit in relation to the third party, but it equally applies to parties to the marriage:
12.It is very clear that discovery brings with it an obligation not to disclose documents to anyone outside the proceedings. The traditional reference to an “implied undertaking” is misnomer. It is clearly an imposed obligation not a voluntary one.
In my view, there is no reason to do more than ask the wife to sign an acknowledgment that she understands her obligations to the husband. I propose to make such an order and to actually append the draft to those orders.
I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 August 2012.
Associate:
Date: 3 August 2012
0