Chontoglou & Chontoglou (No 2) - [2024] FedCFamC1F 775

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chontoglou & Chontoglou (No 2) [2024] FedCFamC1F 775

File number(s): DNC 98 of 2023

Judgment of: KARI J

Date of judgment: 14 November 2024

Catchwords: FAMILY LAW – LEGAL PRACTITIONERS – Where the wife makes an application to restrain the husband’s lawyers from acting for him – Where the trial in the matter is part-heard – Where the cross examination of the parties has concluded – Where the issue of conflict had been raised prior to trial commencing – Where the husband’s solicitors resumed acting following the conclusion of the first tranche of the trial – Where there is insufficient basis to deny the husband the legal representation of his choice – Where it is not concluded that a fair minded reasonably informed member of the public might conclude that the integrity of the judicial process will be impacted by the husband’s solicitor continuing to act

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Charisteas & Charisteas (2022) FLC 94-109

Metwally v University of Wollongong (1985) 60 ALR 68

Porter v Dyer (2022) 402 ALR 659

Division: Division 1 First Instance

Number of paragraphs: 55

Date of hearing: 13 November 2024

Place: Adelaide via Webex

Counsel for the Applicant: Ms Fraser

Solicitor for the Applicant: AFL Withnalls Lawyers

Counsel for the Respondent: Mr Polley

Solicitor for the Respondent: EV Law
ORDERS

DNC 98 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CHONTOGLOU

Applicant

AND:
MS CHONTOGLOU

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT ORDERS THAT:
1.That paragraph 2 of the Response to an Application in a Proceeding filed by the wife on 6 November 2024 be dismissed.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Chontoglou & Chontoglou has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION

These reasons relate to an application made by the wife in which she seeks to restrain the husband’s current solicitor and the firm of solicitors from acting for him in proceedings before the Court.
For the reasons that follow that application is to be dismissed.
THE APPLICATIONS BEFORE THE COURT
On 6 November 2024 the wife filed a Response to an Application in…

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: [2024] FedCFamC1F 775
Decision Date: 14 November 2024

CaseChat Overview and Summary

In the matter of Chontoglou & Chontoglou (No 2), the Federal Circuit and Family Court of Australia (Division 1) was asked to determine an application by the wife to restrain the husband's legal representatives from acting for him in a property settlement proceeding. The proceedings were already part-heard, with cross-examination of both parties concluded. The wife had raised concerns about a potential conflict of interest prior to the trial's commencement but had not provided sufficient evidence to justify the court restraining the husband’s chosen legal representation.

The court was tasked with deciding whether the husband's solicitors could continue to act for him, given the wife's application and the fact that the issue of conflict had been raised previously. The court examined the submissions made by counsel for both parties and assessed whether the husband's solicitors' continued representation would compromise the integrity of the judicial process. The court considered the wife's arguments and the lack of evidence to support a finding of actual or perceived bias.

The court found that there was no sufficient basis to deny the husband the legal representation of his choice. It was not concluded that a fair-minded, reasonably informed member of the public might conclude that the integrity of the judicial process would be impacted by the husband’s solicitor continuing to act. Consequently, the application by the wife was dismissed.

The court ordered that the paragraph 2 of the Response to an Application in a Proceeding filed by the wife on 6 November 2024 be dismissed. This decision was subject to the entry in the Court’s records and could be subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

DNC 98 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CHONTOGLOU

Applicant

AND:

MS CHONTOGLOU

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT ORDERS THAT:

1. That paragraph 2 of the Response to an Application in a Proceeding filed by the wife on 6 November 2024 be dismissed.

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).

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

Background

Background to the litigation

Counsel for each of the parties made fulsome submissions during the hearing and judgment was thereafter reserved.BACKGROUND The current application must be viewed and considered in the broader context of the proceedings more generally. The substantive proceedings relate to the question of property settlement. The proceedings were commenced by the husband in urgent circumstances on 2 March 2023, in the Federal Circuit and Family Court of Australia, Division 2. After procedural hearings before a Senior Judicial Registrar, the proceedings were transferred to the Federal Circuit and Family Court of Australia, Division 1, and listed for an interlocutory hearing before Berman J on 12 April 2023. Interlocutory issues were fully ventilated before Berman J and his honour published reasons and made extensive orders on 26 April 2023. The proceedings have thereafter been case managed by me towards a trial. This case management has included from time to time the hearing, management and determination of a range of interlocutory issues. It is not relevant for present purposes to canvass the numerous interlocutory issues that have arisen in the proceedings. By orders made on 15 April 2024 the proceedings were listed for trial commencing 16 September 2024 with a time estimate of five days (Order 1). The trial directions made that day, included orders for the husband to file and serve the material he relied upon for trial by 7 July 2024 (Order 2), and the wife to file the material she relied upon at trial by 27 July 2024 (Order 3). At times throughout the proceedings the wife has been represented by legal representatives, and at other times she has not. In recent times, the wife has been represented by EV Law, and in that regard, with reference to the various Notices of Address for Service and Notices of Ceasing to Act filed on behalf of the wife in these proceedings:(a)EV Law represented the wife between 13 March 2024 and 11 June 2024;(b)The wife was self-represented between 11 June 2024 and 16 August 2024; and(c)EV Law have represented the wife since 16 August 2024. Subject to the events described below, throughout the proceedings the husband has been represented by Ms JJ of AFL Withnalls Lawyers. Germane to the present issue before the Court is a series of events which took place in August 2024, which flowed from the filing of the parties’ respective trial material in accordance with the trial directions made 15 April 2024 By correspondence from my chambers dated 21 August 2024, the parties were advised that the proceedings were listed for mention before me on 28 August 2024. At the commencement of the hearing on 28 August 2024, the parties were advised by me that the proceedings had been listed for hearing that day for a number of reasons being; that I wished to understand whether the matter was ready to proceed to trial in September 2024 and, secondly, because I had perused the material filed for trial and as a result I understood that the wife had deposed that she did not intend to return to Australia for the trial and there was no application for her to appear “electronically” for the trial.

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.

File number(s):	DNC 98 of 2023
Judgment of:	KARI J
Date of judgment:	14 November 2024
Catchwords:	FAMILY LAW – LEGAL PRACTITIONERS – Where the wife makes an application to restrain the husband’s lawyers from acting for him – Where the trial in the matter is part-heard – Where the cross examination of the parties has concluded – Where the issue of conflict had been raised prior to trial commencing – Where the husband’s solicitors resumed acting following the conclusion of the first tranche of the trial – Where there is insufficient basis to deny the husband the legal representation of his choice – Where it is not concluded that a fair minded reasonably informed member of the public might conclude that the integrity of the judicial process will be impacted by the husband’s solicitor continuing to act
Legislation:	Family Law Act 1975 (Cth) s 79
Cases cited:	Charisteas & Charisteas (2022) FLC 94-109 Metwally v University of Wollongong (1985) 60 ALR 68 Porter v Dyer (2022) 402 ALR 659
Division:	Division 1 First Instance
Number of paragraphs:	55
Date of hearing:	13 November 2024
Place:	Adelaide via Webex
Counsel for the Applicant:	Ms Fraser
Solicitor for the Applicant:	AFL Withnalls Lawyers
Counsel for the Respondent:	Mr Polley
Solicitor for the Respondent:	EV Law

DNC 98 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CHONTOGLOU Applicant
AND:	MS CHONTOGLOU Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	14 NOVEMBER 2024