Clayton & Clayton - [2023] FedCFamC2F 1375

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton [2023] FedCFamC2F 1375

File number: SYC 8412 of 2019

Judgment of: JUDGE LIOUMIS

Date of judgment: 6 September 2023

Catchwords: FAMILY LAW – LEGAL PRACTITIONERS – Where the wife seeks orders restraining the husband’s solicitors from continuing to act for him – Where there was inadvertent disclosure to the husband’s solicitors of confidential and privileged communication between the wife and her solicitors – Where the husband’s solicitors failed to provide disclosure to the wife’s solicitors of the inadvertent disclosure – Where the husband’s solicitors failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Legislation: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31

Cases cited:
Grattan & Grattan and Anor (No. 3) [2014] FamCA 839

Osferatu & Osferatu (2015) 53 Fam LR 433

Porter v Dyer [2022] FCAFC 116

Division: Division 2 Family Law

Number of paragraphs: 33

Date of hearing: 6 September 2023

Place: Sydney

Counsel for the Applicant: Mr Roberts of Counsel

Solicitor for the Applicant: Dimocks Family Lawyers

Counsel for the Respondent: Mr Livingstone of Counsel

Solicitor for the Respondent: Barkus Doolan Winning

Counsel for the Independent Children's Lawyer: Ms Dalrymple of Counsel as agent

Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers
ORDERS

SYC 8412 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CLAYTON

Applicant

AND:
MR CLAYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

6 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.KK Lawyers by its solicitors and employees be restrained from acting for the Respondent Father, Mr Clayton.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION

These are settled reasons for judgment that were delivered orally on 6 September 2023. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references have been included.
The preliminary issue before me is the application by the wife for injunctive relief restraining the husband’s solicitor from continuing to act. At the commencement of these proceedings, I asked for submissions in relation to this issue only.
EVIDENCE
The evidence that the wife relies on is:

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.

Continue reading Clayton & Clayton

Details

AGLC: Clayton & Clayton [2023] FedCFamC2F 1375
Case: [2023] FedCFamC2F 1375
Decision Date: 6 September 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia addressed a case involving a dispute between Ms Clayton and Mr Clayton, where Ms Clayton sought orders to prevent the husband's solicitors, KK Lawyers, from continuing to represent him. The basis for this application was an inadvertent disclosure of confidential and privileged communication from Ms Clayton to her solicitors to Mr Clayton's solicitors, followed by the latter's failure to disclose this incident to Ms Clayton's solicitors, and non-compliance with rule 31 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW).

The court was required to determine whether the inadvertent disclosure and subsequent failure to inform Ms Clayton's solicitors constituted a breach of legal professional conduct rules, and if so, whether this warranted the restraint of KK Lawyers from acting for Mr Clayton. The central issue revolved around the adequacy of the response by KK Lawyers to the inadvertent disclosure, and whether this response was sufficient to mitigate the breach of confidentiality and privilege.

Judge Lioumis found that the inadvertent disclosure and the failure to inform Ms Clayton's solicitors of this incident were indeed breaches of the relevant legal professional conduct rules. The court held that the failure to comply with rule 31 further exacerbated the breach, as it did not provide Ms Clayton with an opportunity to address the situation. Consequently, the court restrained KK Lawyers from acting for Mr Clayton, considering it necessary to uphold the integrity of the legal process and protect the confidentiality of the communications.

The court made an order that KK Lawyers, by its solicitors and employees, be restrained from acting for the Respondent Father, Mr Clayton. This order reflects the court's decision to uphold the principles of confidentiality and privilege in family law proceedings, ensuring that legal practitioners adhere to the highest standards of professional conduct.

Orders

Orders of the court

SYC 8412 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CLAYTON

Applicant

AND:

MR CLAYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

6 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. KK Lawyers by its solicitors and employees be restrained from acting for the Respondent Father, Mr Clayton.

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

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.

File number:	SYC 8412 of 2019
Judgment of:	JUDGE LIOUMIS
Date of judgment:	6 September 2023
Catchwords:	FAMILY LAW – LEGAL PRACTITIONERS – Where the wife seeks orders restraining the husband’s solicitors from continuing to act for him – Where there was inadvertent disclosure to the husband’s solicitors of confidential and privileged communication between the wife and her solicitors – Where the husband’s solicitors failed to provide disclosure to the wife’s solicitors of the inadvertent disclosure – Where the husband’s solicitors failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Legislation:	Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31
Cases cited:	Grattan & Grattan and Anor (No. 3) [2014] FamCA 839 Osferatu & Osferatu (2015) 53 Fam LR 433 Porter v Dyer [2022] FCAFC 116
Division:	Division 2 Family Law
Number of paragraphs:	33
Date of hearing:	6 September 2023
Place:	Sydney
Counsel for the Applicant:	Mr Roberts of Counsel
Solicitor for the Applicant:	Dimocks Family Lawyers
Counsel for the Respondent:	Mr Livingstone of Counsel
Solicitor for the Respondent:	Barkus Doolan Winning
Counsel for the Independent Children's Lawyer:	Ms Dalrymple of Counsel as agent
Solicitor for the Independent Children's Lawyer:	Farah Lawyers, Solicitors & Barristers

SYC 8412 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CLAYTON Applicant
AND:	MR CLAYTON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE LIOUMIS
DATE OF ORDER:	6 SEPTEMBER 2023