Garwood & Shipton (No 8)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Garwood & Shipton (No 8) [2024] FedCFamC1F 208

File number: ADC 4460 of 2023
Judgment of: TREE J
Date of judgment: 28 March 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks the husband’s counsel be restrained from continuing to act for him – Application of the test in Porter v Dyer (2022) 402 ALR 659 – Assertion of abuse of process – Where there is no evidence to suggest counsel was aware of the non-disclosure of the husband – Legal professional privilege – Where there was no waiver – Conflict of interest – Where the asserted conflict is with solicitors that are no longer instructing counsel – Where neither independently nor cumulatively none of the contentions of the wife are elevated beyond the theoretical – Application dismissed.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Cth) rr 6.03, 6.09, 6.17
Cases cited:

Abigroup Ltd v Atkins (1997) 42 NSWLR 623

Apple Inc v Samsung Electronics Co Limited (No2) [2012] FCA 1358

Attorney-General (NT) v Maurice (1986) 161 CLR 475

Charisteas & Charisteas (2022) FLC 94-109

DSE Holdings Pty Ltd v Intertan Inc (2003) 127 FCR 499

Harris v Caladine (1991) 172 CLR 84

Jones v Dunkel (1959) 101 CLR 298

Nine films and Television Pty Ltd V Ninox Television Ltd (2005) 65 IPR 442

Porter v Dyer (2022) 402 ALR 659

Division: Division 1 First Instance
Number of paragraphs: 81
Date of last submissions: 14 February 2024
Date of hearing: 6 and 7 February 2024
Place: Heard in Adelaide, delivered in Cairns
Counsel for the Applicant: Mr Rice KC and Mr Manatta
Solicitor for the Applicant: Angela Ferdinandy
Counsel for the Respondent: Mr Cox KC and Ms Hume
Solicitor for the Respondent: Mills Oakley

ORDERS

ADC 4460 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SHIPTON

Applicant
AND:

MR GARWOOD

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1.Paragraph 4 of the Applicant’s Further Amended Application in a Proceeding filed 13 August 2023 is 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).

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 the pseudonym Garwood & Shipton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

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Details
Case
[2024] FedCFamC1F 208
Decision Date

CaseChat Overview and Summary

In ADC 4460 of 2023, Ms Shipton, the mother, sought to restrain Ms AP SC, the barrister for Mr Garwood, the father, from continuing to act for him. This application arose from a complex family law proceeding that included parenting and property settlement claims. The mother’s application was grounded in allegations that Ms AP SC had acted improperly, potentially compromising the integrity of the proceedings. The court was required to determine whether the test established in Porter v Dyer applied, which sets out the circumstances under which a barrister may be restrained from continuing to act in a case.

The court examined the mother's allegations to ascertain if they met the stringent criteria set out in Porter v Dyer. The mother contended that Ms AP SC had acted in a way that might suggest an abuse of process, given her alleged failure to disclose certain information. However, the court found no evidence to suggest Ms AP SC was aware of the non-disclosure. Furthermore, the court considered issues of legal professional privilege and conflict of interest. Despite the mother's assertions, none of the alleged conflicts were substantiated, particularly as they involved solicitors no longer instructing Ms AP SC. The court concluded that the mother's claims, whether viewed individually or cumulatively, did not elevate beyond theoretical concerns.

The court held that the application to restrain Ms AP SC did not meet the threshold established by Porter v Dyer. The court noted that even if the allegations had been substantiated, the factors weighing against restraint, such as the significant delay in bringing the application and the substantial cost and disruption of replacing Ms AP SC mid-trial, were compelling. The court also observed that the mother's application appeared tactical, aimed at causing financial hardship to Mr Garwood and seeking to start anew with different legal representatives. Ultimately, the application was dismissed.

The court ordered that paragraph 4 of Ms Shipton's Further Amended Application in a Proceeding filed on 13 August 2023 be dismissed. This decision underscores the high threshold required to restrain a barrister from acting in family law proceedings, emphasizing the importance of substantial evidence and the potential consequences of such an action.

Orders

Orders of the court

ADC 4460 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SHIPTON

Applicant

AND:

MR GARWOOD

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1. Paragraph 4 of the Applicant’s Further Amended Application in a Proceeding filed 13 August 2023 is 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).

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

By his Response to Application in a Proceeding filed 20 October 2023, the father sought that paragraph 4 be dismissed. On 6 and 7 February 2024, I heard that aspect of the parties’ dispute, and reserved my judgment. This is that decision and the reasons for it.BACKGROUND The mother is presently 54 years of age, and a business woman. The father is presently 50 years of age and a business manager. The parties met in 2014 when the father commenced working as an executive of the mother’s business, although not long afterwards he took another executive position. The father says that he and the mother commenced a sexual relationship in 2015, and that from mid-2015 were in a de facto relationship. The mother denies that the parties were ever de facto partners, but appears to accept that they were in some kind of relationship. In December 2017 the parties separated (according to the father). In 2018 the mother gave birth to a child conceived as a result of IVF, in which the father’s sperm fertilised an egg obtained from a third party, with the resulting zygote having been implanted in, and gestated by, the mother. In 2018 the father’s employment ceased, with him being made redundant. On 30 November 2018 the father commenced parenting proceedings against the mother, which were later amended to include a property settlement claim as well. AQ Lawyers were his solicitors, and Ms AR had carriage of his file. In due course the trial of those proceedings commenced before Kari J on 5 September 2022, and proceeded for some 9 days, albeit by 20 September 2022, only the mother had given evidence, and indeed her cross-examination had not completed. While the parties have since come before Kari J on an alarmingly regular basis to determine various interlocutory disputes between them, the trial has not yet resumed. It is not in dispute that whilst an executive of the mother’s business, the father obtained financial benefits beyond his salary, including the payment of private legal fees. The father says these financial benefits were agreed to by the mother, and paid by methods which (likely illegally) saw no tax paid by the father on them, or indeed any tax paid in relation to them. The father further contends that the mother and he agreed to conceal the true nature of the payments from the business’ bookkeeper, which again the mother denies. A significant issue at the trial became whether the father had the mother’s authority to cause her business to pay for his private legal bills. Of course, ordinarily an issue relating to allegedly unauthorised benefits being received by the father would be irrelevant in parenting proceedings, but this is not an ordinary case. The issue has assumed prominence because in the current litigation, the mother raised the father’s receipt of the additional benefits as part of her chain of reasoning for why she no longer trusts him, which apparently is said to inform what parenting orders would be in the child’s best interests. The father has responded by claiming the payment of the benefits were authorised by the mother, and hence the mother’s claim that he took the benefits in some dishonest way, which has now been deployed as a contended basis to restrict his time with the child, shows that the mother has falsely invented the claim in an attempt to deprive him of a relationship with the child.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The test is not met.May not exercise any independent judgment or comply with duties to court It is trite to observe that this allegation can be raised, at least in theory, against every barrister appearing in a case, and sadly, on occasion demonstrably correctly. However, there is nothing on the evidence to suspect that, in the case of Ms AP SC in these proceedings, that is even slightly elevated beyond the theoretical. The test is plainly not satisfied.Cumulative consideration Here the facts are the facts, and the allegations are the allegations. The various threads to the mother’s arguments are really, when viewed from a distance, the same issues differently expressed. The cumulative consideration of them does little in the way of aggregation – the facts remain the facts. I am not satisfied that a consideration of all the matters she relies upon reaches a point where the test is satisfied. Moreover, even if the test was satisfied by the concerns which may nonetheless hover around Ms AP SC’s continued involvement in the proceedings, such that the discretion to restrain Ms AP SC arises, those concerns are vastly outweighed by:(a)The fact that the trial has now run for nine days, and the cost of alternate senior counsel coming up to speed likely to be vast, a matter which goes directly to the due administration of justice;(b)The fact that from the time her then lawyers became aware of the material on which the claim is now grounded, it took the mother nearly a year to bring her application to restrain Ms AP SC. Worse, most of that material has been in the mother’s possession at all material times since its creation, and had not been disclosed. It is, as Porter acknowledges, an exceptional thing to restrain a legal practitioner from appearing, here all the more so where the client, separately represented by eminent lawyers, nonetheless wants to have his barrister of choice continue to appear for him. This is not one of those exceptional cases, and whether the allegations are viewed individually or collectively, not only is the test not satisfied, but there are weighty matters which would strongly tell against any restraint of Ms AP SC in any event. Finally, I should advert to the claim made by the father that the mother’s application was tactical in two respects. Firstly, it was said to be an attempt to create an outcome where the father would be obliged to find a new barrister to act for him in the part-heard trial, thus occasioning him great expense. In common parlance it was said to be trying to “run him out of petrol.” Secondly, it was said that the mother, over her nine days in the witness box, gave such a poor performance that she wanted a new legal team for herself (and has that) a new solicitor acting for the father (and has that) and now wants a new barrister acting for the father (hence this application), and a new judge (she has on foot applications for Kari J to recuse herself). In other words she is using all means at her disposal to expunge any memory of her bad performance as a witness, and wants to start over with a clean slate.

Ratio Decidendi

Legal Principle Established

It is trite to observe that this allegation can be raised, at least in theory, against every barrister appearing in a case, and sadly, on occasion demonstrably correctly. However, there is nothing on the evidence to suspect that, in the case of Ms AP SC in these proceedings, that is even slightly elevated beyond the theoretical. The test is plainly not satisfied.Cumulative consideration Here the facts are the facts, and the allegations are the allegations. The various threads to the mother’s arguments are really, when viewed from a distance, the same issues differently expressed. The cumulative consideration of them does little in the way of aggregation – the facts remain the facts. I am not satisfied that a consideration of all the matters she relies upon reaches a point where the test is satisfied. Moreover, even if the test was satisfied by the concerns which may nonetheless hover around Ms AP SC’s continued involvement in the proceedings, such that the discretion to restrain Ms AP SC arises, those concerns are vastly outweighed by:(a)The fact that the trial has now run for nine days, and the cost of alternate senior counsel coming up to speed likely to be vast, a matter which goes directly to the due administration of justice;(b)The fact that from the time her then lawyers became aware of the material on which the claim is now grounded, it took the mother nearly a year to bring her application to restrain Ms AP SC. Worse, most of that material has been in the mother’s possession at all material times since its creation, and had not been disclosed. It is, as Porter acknowledges, an exceptional thing to restrain a legal practitioner from appearing, here all the more so where the client, separately represented by eminent lawyers, nonetheless wants to have his barrister of choice continue to appear for him. This is not one of those exceptional cases, and whether the allegations are viewed individually or collectively, not only is the test not satisfied, but there are weighty matters which would strongly tell against any restraint of Ms AP SC in any event. Finally, I should advert to the claim made by the father that the mother’s application was tactical in two respects. Firstly, it was said to be an attempt to create an outcome where the father would be obliged to find a new barrister to act for him in the part-heard trial, thus occasioning him great expense. In common parlance it was said to be trying to “run him out of petrol.” Secondly, it was said that the mother, over her nine days in the witness box, gave such a poor performance that she wanted a new legal team for herself (and has that) a new solicitor acting for the father (and has that) and now wants a new barrister acting for the father (hence this application), and a new judge (she has on foot applications for Kari J to recuse herself). In other words she is using all means at her disposal to expunge any memory of her bad performance as a witness, and wants to start over with a clean slate.