Anselmi & Padovano

Case [2024] FedCFamC1F 62

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Anselmi & Padovano [2024] FedCFamC1F 62

File number: MLC 8718 of 2023
Judgment of: HARTNETT J
Date of judgment: 15 February 2024
Catchwords:  FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks that the wife be restrained from continuing to engage her solicitors – Where the husband alleges a conflict of interest –Where the wife was represented by her current solicitors when previous orders were made – Where there is a dispute as to the interpretation of a notation to the previous orders - No evidence as to conflict – Application dismissed – Costs reserved
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 24, 152
Cases cited:

Billington & Billington (No 2) [2008] FamCA 409

Charisteas & Charisteas (2022) 65 Fam LR 492

Osferatu & Osferatu (2015) FLC 93-666

Naczek & Dowler [2011] FamCAFC 179

Division: Division 1 First Instance
Number of paragraphs: 46
Date of hearing: 9 February 2024
Place: Melbourne via videolink
Counsel for the Applicant: Mr Wilson
Solicitor for the Applicant: Westminster Lawyers
Counsel for the Respondent: Ms Vohra SC
Solicitor for the Respondent: Kennedy Partners

ORDERS

MLC 8718 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ANSELMI

Applicant
AND:

MR PADOVANO

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

15 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The husband’s application that the wife be restrained from continuing to engage Westminster Lawyers in these proceedings is dismissed.

2.The wife’s costs arising from the husband’s application are reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anselmi & Padovano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARTNETT J

INTRODUCTION

  1. The discrete issue for the Court to consider is an application by the respondent husband (“the husband”) that the applicant wife (“the wife”) “be restrained from continuing to engage Westminster Lawyers in these proceedings by reason of an actual or potential conflict of interest” (“the restraint application”).[1] This application, for the reasons set out hereunder, is dismissed.

    [1] Husband’s Response to Initiating Application filed 5 September 2023, p.3.

  2. The substantive proceedings were initiated by the wife on 1 August 2023 by the filing of an Initiating Application wherein she sought orders in relation to: the husband paying the wife further…

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AGLC
Anselmi & Padovano [2024] FedCFamC1F 62
Case
[2024] FedCFamC1F 62
Decision Date

CaseChat Overview and Summary

In the matter of Anselmi v Padovano, the husband sought to restrain the wife from engaging her solicitors, Westminster Lawyers, on the grounds of alleged conflict of interest. The case was heard in the Federal Circuit and Family Court of Australia (Division 1). The husband alleged that the wife's solicitors were involved in a conflict of interest due to their representation of the wife during previous proceedings where certain orders were made. Specifically, the husband claimed that the wife's solicitors should not continue to represent her because they had previously facilitated an alleged breach of a court-given undertaking.

The court was required to determine whether there was sufficient evidence to support the husband's claim of conflict of interest and whether the wife's solicitors should be restrained from acting for her. The husband's application hinged on the interpretation of certain notations in the 2014 orders, which he argued created an undertaking that was subsequently breached. However, the court noted that the husband had not provided any independent evidence to substantiate his claims, and the interpretation of the notations was disputed.

The court held that without any tested evidence of a breach of an undertaking or a conflict of interest, it could not justify restraining the wife's solicitors. The court emphasised the importance of the litigant's right to choose their legal representation and cautioned against disqualification without due cause. As such, the husband's application was dismissed, and the wife's costs arising from the application were reserved for later determination.

Orders

Orders of the court

MLC 8718 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ANSELMI

Applicant

AND:

MR PADOVANO

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

15 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The husband’s application that the wife be restrained from continuing to engage Westminster Lawyers in these proceedings is dismissed.

2. The wife’s costs arising from the husband’s application are reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The parties did not give evidence at the interim hearing. At this juncture, there are limitations on what findings can be made on untested evidence and I do not make any finding against the husband or the wife. The relevant background set out hereunder is confined to non‑controversial matters. RELEVANT BACKGROUND In 1971, the wife was born in Australia. The wife is engaged in home duties and resides in a property that she owns in Suburb B in the State of Victoria. In 1973, the husband was born in Australia. The husband is unemployed and currently resides in a property he owns with his wife, Ms D in Suburb C in the State of Victoria. In 2001, the parties married. The parties lived in Region E for the duration of their marriage. The parties have four children: Mr W born 2003; Ms X born 2005; Y born 2009; and Z born 2011 (collectively “the children”). The elder two children are now adults and not the subject of administrative assessment pursuant to s 24 of the Child Support (Assessment) Act 1989 (Cth). In or around February 2012, the parties separated. In late 2012, final parenting orders were made in the District Court of Region E. In late 2012, the wife and the children departed Region E and took up residence in Australia. In 2013, the parties obtained a divorce. In mid-2013, final orders relating to property, child support and spousal maintenance were made in the District Court of Region E (“the Region E orders”). Relevantly, an order was made by consent that the husband pay the wife the sum of $8,000 per month for the benefit of the children, being $2,000 per child per month, with the payments “to be index linked to any increase in the Australian Consumer Price Index.”.[3] These orders were registered with the Child Support Agency.[3] Husband’s Response to Initiating Application filed 5 September 2023, p.49. On 4 February 2014, final orders relating to property, child support and spousal maintenance were made in the Family Court of Australia, as it was then known, now Federal Circuit and Family Court of Australia (Division 1) (“the 2014 orders”). These orders mirrored the orders previously made in the District Court of Region E in mid-2013. Notations D and E of the 2014 orders provided that:D. The [Region E] orders make provision for the payment of periodic and non‑periodic child support by the husband to the wife, which the parties intend will be registered with Child Support, Australia.E. The [Region E] orders provide for the husband to provide financial support for the children, which would constitute adult child maintenance pursuant to the Family Law Act and therefore cannot be reflected in these orders, notwithstanding the parties’ agreement in relation to that support. On 7 August 2017, further parenting orders were made in the then Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) in relation to the children’s ongoing care arrangements. On 18 October 2019, the parties entered into a parenting plan which revised the existing parenting orders relating to the children.

Evidence

Evidence Before The Court

At the hearing on 9 February 2023, the matter proceeded on the basis that the restraint application was to be considered (and determined) as a preliminary issue and prior to the consideration of the orders sought by the wife in her Initiating Application.EVIDENCE The parties did not give evidence at the interim hearing. At this juncture, there are limitations on what findings can be made on untested evidence and I do not make any finding against the husband or the wife. The relevant background set out hereunder is confined to non‑controversial matters. RELEVANT BACKGROUND In 1971, the wife was born in Australia. The wife is engaged in home duties and resides in a property that she owns in Suburb B in the State of Victoria. In 1973, the husband was born in Australia. The husband is unemployed and currently resides in a property he owns with his wife, Ms D in Suburb C in the State of Victoria. In 2001, the parties married. The parties lived in Region E for the duration of their marriage. The parties have four children: Mr W born 2003; Ms X born 2005; Y born 2009; and Z born 2011 (collectively “the children”). The elder two children are now adults and not the subject of administrative assessment pursuant to s 24 of the Child Support (Assessment) Act 1989 (Cth). In or around February 2012, the parties separated. In late 2012, final parenting orders were made in the District Court of Region E. In late 2012, the wife and the children departed Region E and took up residence in Australia. In 2013, the parties obtained a divorce. In mid-2013, final orders relating to property, child support and spousal maintenance were made in the District Court of Region E (“the Region E orders”). Relevantly, an order was made by consent that the husband pay the wife the sum of $8,000 per month for the benefit of the children, being $2,000 per child per month, with the payments “to be index linked to any increase in the Australian Consumer Price Index.”.[3] These orders were registered with the Child Support Agency.[3] Husband’s Response to Initiating Application filed 5 September 2023, p.49. On 4 February 2014, final orders relating to property, child support and spousal maintenance were made in the Family Court of Australia, as it was then known, now Federal Circuit and Family Court of Australia (Division 1) (“the 2014 orders”). These orders mirrored the orders previously made in the District Court of Region E in mid-2013. Notations D and E of the 2014 orders provided that:D. The [Region E] orders make provision for the payment of periodic and non‑periodic child support by the husband to the wife, which the parties intend will be registered with Child Support, Australia.E. The [Region E] orders provide for the husband to provide financial support for the children, which would constitute adult child maintenance pursuant to the Family Law Act and therefore cannot be reflected in these orders, notwithstanding the parties’ agreement in relation to that support.

Decision

Reasons for decision

On the evidence, I am not satisfied that a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that the wife’s solicitor be prevented from acting for her, in the interests of the protection of the integrity of the judicial process and the appearance of justice. CONCLUSION For the reasons set out above, the husband’s application is dismissed. Where the husband has been wholly unsuccessful in pursuing the restraint application, the wife’s costs arising from the application are reserved.

Ratio Decidendi

Legal Principle Established

The Court is to exercise its discretion cautiously when considering disqualification applications and should be mindful of the “need to give appropriate weight to the public interest in a litigant not being deprived of the lawyer of his or her choice without due course”.[4] [4] Billington & Billington (No 2) [2008] FamCA 409.CONSIDERATION At its core, the issue of the restraint application arises because the wife takes issue with, what she alleges to be, the husband’s application to Services Australia for an administrative assessment of child support which resulted in reduction, by reference to the 2014 orders, of the husband’s child support obligations. The husband’s assessed child support for the period 13 September 2023 to 29 February 2024 was a monthly rate of $597.67. This assessment was based on the children Y and Z spending no overnight time with the husband although the child Z does spend alternate weekends and school holiday periods with the husband. The husband continues to meet private school fees and private health insurance for the children. It was the wife’s position the husband’s actions breached ‘the undertaking’ given by him. It was the husband’s position his actions did not breach ‘the undertaking’, as he did not make an application to a Court. It is not necessary for the Court to consider at this stage whether a valid undertaking to the Court exists, and if so whether the husband breached such an undertaking. I note however it is agreed between the parties that during the making of the 2020 orders, the husband did not, personally or through his counsel, provide an undertaking to the Court and there is not an undertaking on the Court file in the terms as set out in ‘the undertaking’ as provided for in the notation to the 2020 orders. The Court cannot, based on the untested evidence, make any findings in relation to whether the husband, as alleged by the wife, applied for a child support assessment. There is no independent evidence before the Court as to the process which triggered the child support assessments by Services Australia. It is likely that information was provided to Services Australia, on which assessments were based. The husband submitted a form of remedy available to the wife, following the husband’s notification to Services Australia of his residential status, and the consequent assessment which arose from the notification, is as against her solicitors, and not the husband. That is:[5]…any cause of action regarding the undertaking is not a matter for this Court. If the undertaking is insufficient for the [wife’s] purposes, her cause of action lies against her current solicitors…[5] Husband’s Outline of Case filed 13 February 2024, p.13. The husband submitted further that there is a consequential conflict of interest between the wife and her solicitors. Alternatively, it was submitted that a fair-minded, reasonably informed member of the pubic might conclude that the proper administration of justice requires that the wife’s solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.