Dalton and Dalton - [2016] FamCA 174

FAMILY COURT OF AUSTRALIA

DALTON & DALTON

[2016] FamCA 174

FAMILY LAW – PRACTICE & PROCEDURE – Interlocutory Application – Where the husband contended he imparted confidential information to solicitors about his financial affairs and those solicitors now act for the wife – Where the husband sought to restrain the wife’s solicitors from acting for her in the substantive property settlement proceedings between them – Where the wife sought dismissal of the husband’s application – Where there is a real chance the wife’s solicitor will become seized of the confidential information imparted by the husband which could be used to his disadvantage in the proceedings – Where adherence to an undertaking given by the wife’s solicitor will eradicate any future risk of misuse of the husband’s confidential information – Where the husband unreasonably delayed his application – Where the prejudice to the wife if the injunction is granted is considerably greater than the prejudice to the husband if the injunction is refused – Husband’s application dismissed

Family Law Act 1975 (Cth), ss 117

Osferatu & Osferatu (2015) FLC 93-666

APPLICANT:

Mr Dalton

RESPONDENT:

Ms Dalton

FILE NUMBER:

NCC

1909

2015

DATE DELIVERED:

14 March 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

11 & 14 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Marshall Law

COUNSEL FOR THE RESPONDENT:

Mr Tregilgas

SOLICITOR FOR THE RESPONDENT:

Paton Hooke Lawyers

Orders

IT IS ORDERED THAT

The Application in a Case filed on 10 December 2015 is dismissed.
No order as to costs.

BY CONSENT, IT IS FURTHER ORDERED THAT

The wife’s application for interim orders 2 and 3 set out within her Response to an Application in a Case filed on 7 March 2016 is listed for hearing at 10am on Friday, 29 April 2016.

NOTATION

A.The proceedings remain listed before the Registrar for further procedural directions on 29 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalton & Dalton 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 NEWCASTLE

FILE NUMBER: NCC 1909 of 2015

Mr Dalton

Applicant

And

Ms Dalton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By Application in a Case filed on 10 December 2015, the husband sought to restrain the wife’s solicitors from acting for her in the substantive property settlement proceedings between them.
By Response to an Application in a Case filed on 7 March 2016, the wife sought dismissal of the husband’s application. She wants to retain the solicitors of her choice.
The wife also sought a number of other orders relating to possession and use of a caravan and the husband’s payment to her of $100,000, but it was agreed her application for those orders would be deferred for consideration on another day.
The sole issue for interim determination was the proposed injunction pertaining to the wife’s current solicitors.

Evidence

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 Dalton and Dalton

Details

AGLC: Dalton and Dalton [2016] FamCA 174
Case: [2016] FamCA 174
Decision Date: 14 March 2016

CaseChat Overview and Summary

In the matter of *Dalton and Dalton*, Austin J of the Supreme Court of New South Wales considered an application filed on 10 December 2015, which was subsequently dismissed. The wife had also filed a response on 7 March 2016, seeking interim orders.

The primary legal issue before the court was the determination of the wife's application for interim orders. The court was required to consider the merits of these interim applications in the context of the broader proceedings.

Austin J dismissed the initial application. By consent, the court then listed the wife's application for interim orders for a hearing on 29 April 2016. No order was made as to costs in relation to the dismissed application. The proceedings were noted to remain listed before the Registrar for further procedural directions on 29 March 2016.

Orders

Orders of the court

IT IS ORDERED THAT

The Application in a Case filed on 10 December 2015 is dismissed.

No order as to costs.

BY CONSENT, IT IS FURTHER ORDERED THAT

The wife’s application for interim orders 2 and 3 set out within her Response to an Application in a Case filed on 7 March 2016 is listed for hearing at 10am on Friday, 29 April 2016.

NOTATION

A. The proceedings remain listed before the Registrar for further procedural directions on 29 March 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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