CUOCO & CUOCO

[2014] FamCA 611

FAMILY COURT OF AUSTRALIA

CUOCO & CUOCO [2014] FamCA 611

FAMILY LAW – LEGAL PRACTITIONERS – conflict of interest – Where the solicitor for the husband acted for the parties during the marriage in relation to conveyancing transactions – Where there was no confidential information passed by the wife to the solicitor – Where there was no information passed to the solicitor that was relevant to the current proceedings – Orders made dismissing the application

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to review Registrar’s decision out of time – Where there are significant issues raised by the husband – Where the wife does not oppose the application – Orders made granting leave

Family Law Act 1975 (Cth) s 90B

McMillan and McMillan 2000 FLC 93-048

APPLICANT: Ms Cuoco

RESPONDENT: Mr Cuoco

FILE NUMBER: SYC 3518 of 2012

DATE DELIVERED: 6 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Fabiani Solicitors

COUNSEL FOR THE RESPONDENT: Mr S Schonell

SOLICITOR FOR THE RESPONDENT: The Norton Law Group

Orders

IT IS ORDERED

1. That leave is granted to the husband to review, out of time, the orders made by consent by the Registrar on 27 June 2012.

2. That the orders for property settlement made by the Registrar on 27 June 2012 are set aside.

3. That the husband file an application in relation to property settlement and a Financial Statement by 4.00 pm on 28 August 2014.

4. That the wife file a response and Financial Statement by 4.00 pm on 30 September 2014.

5. That the matter be listed before Registrar Cameron for directions on a date after 30 September 2014.

6. That the wife’s application to restrain the husband’s solicitor from acting for the husband is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cuoco & Cuoco 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 SYDNEY

FILE NUMBER: SYC 3518 of 2012

Ms Cuoco

Applicant

And

Mr Cuoco

Respondent

REASONS FOR JUDGMENT

1. Mr Cuoco (“the husband”) and Ms Cuoco (“the wife”) commenced co-habitation in November 2004 and married in 2005. They separated in March 2012.

2. On 18 June 2012 the wife’s solicitor filed an application for consent orders in relation to property settlement and on 27 June 2012 those orders were made by consent by a Registrar of the Family Court of Australia.

3. On 27 July 2012 the husband filed an application seeking leave to review the Orders of 27 June 2012 out of time. The application was filed two days late.

4. That application has not yet been dealt with.

5. On 28 May 2014 the wife filed an Application in a Case seeking to restrain the husband’s solicitors from continuing to act for him in the family law proceedings and that application was listed in the Judicial Duty List before me on 31 July 2014. In the course of the proceedings, Counsel for the wife indicated that the wife did not wish to contest the husband’s application for leave to review the decision of the Registrar out of time but that she would prefer that the substantive matter proceeded in a timely way.

THE APPLICATION FOR LEAVE TO REVIEW THE REGISTRAR’S DECISION

1. Because the orders in relation to property settlement were made by consent, a review of the Registrar’s decision proceeds as a hearing de novo. The husband’s withdrawing his consent has the inevitable effect that the orders are not consented to and therefore the orders will be set aside.

2. The only issue for the Court to determine is whether or not leave should be granted to file the application out of time in circumstances where the delay is of two days.

3. The affidavit of the husband in support of his application raises significant issues and, in circumstances where the wife does not oppose the application, it is proper for leave to be granted in the circumstances disclosed.

4. Accordingly, the orders of the Registrar will be set aside. The parties have agreed upon directions for the filing of affidavits in the substantive proceedings and those directions will be made.

THE WIFE’S APPLICATION TO RESTRAIN THE HUSBAND’S SOLICITOR FROM ACTING ON BEHALF OF THE HUSBAND

1. The evidence of the wife in relation to this issue is contained in her affidavit sworn on 23 May 2014. The wife asserts that there is a conflict of interest in the husband’s solicitor, Mr B (“the solicitor”), continuing to act for the husband.

2. There are two bases for that assertion.

3. Firstly, the wife says that in the course of the marriage, the solicitor acted for both the husband and the wife in the purchase of a property at Suburb D, the mortgage in connection with the purchase of that property and the refinancing of a loan secured on a property at Suburb C owned by the husband.

4. The wife gives evidence that in the course of those transactions the husband and she attended together at the offices of the solicitor and signed documents and obtained advice relating to the transactions.

5. Significantly, the wife does not assert that she ever spoke to the solicitor other than in the presence of the husband, and she does not assert that any information was given by her to the solicitor which might have been confidential or indeed relevant to the property settlement proceedings currently before the Court.

6. She does not assert that there are any issues, or likely to be any issues, in the proceedings for property settlement, arising out of the conduct of the conveyancing transactions.

7. The second matter which is relied upon by the wife is her assertion that on 7 December 2004 she attended with the husband upon the solicitor to discuss what the parties between them referred to as a “prenup”. I infer this is a reference to a Financial Agreement pursuant to section 90B of the Family Law Act 1975 (Cth) (“the Act”).

8. There is no dispute that the husband and the wife attended upon the solicitor on 7 December 2004.

9. Both the husband and the solicitor have filed affidavits setting out their recollection of the conversation which took place on that day.

10. It is the husband’s recollection that there was a brief conversation between the husband, the wife and the solicitor when the solicitor told them that it would be necessary for the wife to have independent representation if the parties wished to proceed with a financial agreement.

11. The solicitor is unable to recall the meeting. In his affidavit sworn 28 July 2014 the solicitor said that he was unable to find any file which had been opened as a result of the meeting. He gave evidence of his usual practice in relation to advice relating to financial agreements and said that the description of the conversation in the wife’s affidavit did not accord with his usual practice.

12. The solicitor is an accredited specialist in Family Law.

13. The wife, unlike the husband and the solicitor, has a very clear recollection of the events. I accept, for the purpose of this application, her version of the conversation between the husband, the wife and the solicitor which is set out in full at paragraphs 21 to 28 of the wife’s affidavit.

14. The wife does not assert that there was any information which she gave the solicitor which could be described as confidential. The husband was present for the entirety of the conversation. Nothing which passed between the wife and the solicitor was said in the absence of the husband.

15. In McMillan and McMillan 2000 FLC 93-048 (“McMillan”), the Full Court discussed the preferable approach to be taken in applications of this nature, commending the broad approach which is described as follows:

    The second approach was referred to as being a “broader” or “Family Law” approach where it was said that the court will intervene if there is “a reasonable apprehension that confidential information has been given to a lawyer by a former client and that there is at least a theoretical possibility that this information might be used to the disadvantage of that client.”

16. I accept the wife’s submission that it is the broader approach referred to by the Full Court in McMillan that should be adopted here but I am unable to ascertain any suggestion that there was any confidential information given to the solicitor by the wife in circumstances where, firstly, the husband was always present when the wife had any dealings with the solicitor and secondly, where the wife herself does not identify any confidential information that may have passed between them.

17. Accordingly, the wife’s application will be dismissed.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 August 2014.

Associate:

Date:  6 August 2014