ASHTON & PAINE (No.3) - [2015] FCCA 2935

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHTON & PAINE (No.3)

[2015] FCCA 2935

Catchwords:
FAMILY LAW – Legal profession – Lawyers’ duty to the court – watchlist orders.

Legislation:

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), rr.3,19

Legal Profession Uniform Law Act 2014 (NSW), s.296

Ashton & Paine (No.2) [2015] FCCA 2813
Legal Services Commissioner v Bevan [2015] QCAT 290

Applicant:

MR ASHTON

Respondent:

MS PAINE

File Number:

MLC 8584 of 2015

Judgment of:

Judge Harland

Hearing date:

Heard in chambers

Date of Last Submission:

13 October 2015

Delivered at:

Melbourne

Delivered on:

12 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr Moore

Solicitors for the Applicant:

Moore Law Firm

Counsel for the Respondent:

Ms Canturi

Solicitors for the Respondent:

Cash & Stavroulakis Lawyers

ORDERS

I request that the Registrar of the Federal Circuit Court of Australia refer the conduct of Mr Simeon Moore of Moore Law Firm to the Legal Services Commissioner of New South Wales.
I request that the Registrar of the Federal Circuit Court of Australia provide a copy of these reasons to be sent to the appropriate officer at Australian Federal Police.

IT IS NOTED that publication of this judgment under the pseudonym Ashton & Paine (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8584 of 2015

MR ASHTON

Applicant

And

MS PAINE

Respondent

REASONS FOR JUDGMENT

This is the third judgment I have delivered in these proceedings in a short period of time. It is unfortunately necessary to write this judgment to address an issue of professional conduct.
After the interim hearing on 23 September 2015, I made an order permitting the mother to remove X, the youngest child from Australia and return to (country omitted) with him. I made that order in Court immediately after the hearing, before delivering written reasons two days later.
At no stage during the interim hearing did either lawyer inform the Court that the children had been placed on the Watchlist. This had the potential to frustrate the Court’s orders. Chambers only became aware of this when the mother and child were stopped at the airport. Chambers emailed the orders to the Australian Federal Police (“AFP”) and the mother and child were able to travel. If this had happened outside of working hours the orders would have been frustrated.
I raised my concerns about this when the matter came before me for hearing of the father’s application for a stay. I also expressed concern that the father’s barrister did not appear to be properly briefed as she was not aware of the paternal family’s imminent trip to (country omitted) which was a relevant issue. (See Ashton & Paine (No.2) [2015] FCCA 2813.)
I directed that the lawyers for the parties file an affidavit explaining how the children’s names were placed on the Watchlist.
Both lawyers complied with that order. The mother’s lawyer deposes that she did not become aware of the children being…

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: [2015] FCCA 2935
Decision Date: 12 November 2015

CaseChat Overview and Summary

In *Ashton & Paine (No.3)*, heard in the Federal Circuit Court of Australia, the proceedings concerned allegations of misconduct by Mr Simeon Moore of Moore Law Firm. The specific nature of the dispute leading to this judgment is not detailed in the provided text, but the court's orders indicate a serious finding against Mr Moore.

The central legal issue before Judge Harland was the conduct of Mr Moore, which the court found to be of such a nature as to warrant referral to disciplinary and law enforcement bodies. The court was required to determine whether Mr Moore's actions constituted professional misconduct or other breaches of legal or ethical standards that necessitated external review.

Judge Harland's reasoning, as evidenced by the orders, was that Mr Moore's conduct was sufficiently serious to warrant investigation by the Legal Services Commissioner of New South Wales and the Australian Federal Police. The court's decision to refer the matter indicates a finding that Mr Moore's actions likely breached professional obligations and potentially involved criminal conduct, necessitating a formal inquiry by the relevant authorities.

Consequently, the court ordered that the Registrar of the Federal Circuit Court of Australia refer Mr Moore's conduct to the Legal Services Commissioner of New South Wales and provide a copy of the reasons for this decision to the Australian Federal Police.

Orders

Orders of the court

I request that the Registrar of the Federal Circuit Court of Australia refer the conduct of Mr Simeon Moore of Moore Law Firm to the Legal Services Commissioner of New South Wales.

I request that the Registrar of the Federal Circuit Court of Australia provide a copy of these reasons to be sent to the appropriate officer at Australian Federal Police.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.