Henton & Henton (No 3) - [2022] FedCFamC1F 778

Federal Circuit and Family Court of Australia
(DIVISION 1)
Henton & Henton (No 3) [2022] FedCFamC1F 778

File number(s): PAC 1371 of 2018

Judgment of: RIETHMULLER J

Date of judgment: 14 October 2022

Catchwords: FAMILY LAW – COSTS – Where the Federal Circuit and Family Court of Australia (Division 1) has implied power to order solicitors to pay costs – Where the applicant’s solicitors briefed two counsel – Orders made restraining applicant’s solicitors from charging client for both counsel

Legislation:
Family Law Act 1975 (Cth) ss 9, 21

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68

Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth) rr 12.08, 12.13, 12.15

Cases cited:
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (QLD) Pty Ltd (1993) 45 FCR 224

Darrow & Malden [2018] FamCA 1060

DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17

Henton & Henton [2022] FedFamC1F 574

Henton & Henton (No 2) [2022] FedFamC1F 655

Jachimowicz and Jachimowicz (1986) FLC 91–702

Myers v Elman [1993] 4 All ER 484

Division: Division 1 First Instance

Number of paragraphs: 25

Date of last submission/s: 24 August 2022

Place: Parramatta

Counsel for the Applicant: Mr Shaw and Mr Moran

Solicitor for the Applicant: Jameson Law

Solicitor for the Respondent: Litigant in person
ORDERS

PAC 1371 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HENTON

Applicant

AND:
MR HENTON

Respondent

order made by:

RIETHMULLER J

DATE OF ORDER:

14 october 2022

THE COURT ORDERS THAT:
1.The applicant’s solicitors be restrained from charging the applicant fees for more than one counsel.

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 Henton & Henton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction

In the course of hearing the trial in this matter the applicant was represented by two barristers: see Henton & Henton (No. 2) [2022] FedFamC1F 655. At trial, I raised with counsel for the applicant a query as to why the applicant required two counsel in what appeared to be a relatively straightforward case.
After the trial in July 2022, the representatives for the applicant were afforded the opportunity to provide written submissions on the question of whether or not the…

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: [2022] FedCFamC1F 778
Decision Date

CaseChat Overview and Summary

The case of Henton & Henton (No 3) involved a dispute between the applicant and the respondent over whether the respondent had forged the applicant’s signature on mortgage documents with ANZ. The proceedings began in 2018 and involved a modest property pool. The applicant alleged that the respondent forged her signature, leading to significant expense and the involvement of ANZ as a party in the dispute. The court previously ruled in favour of ANZ, granting them summary judgment, as their mortgage was indefeasible and the amount was less than half the respondent’s share in the property.

The primary legal issue in this case was whether the respondent forged the applicant’s signature on the mortgage documents. The court had to determine the applicant’s capacity to conduct the proceedings, given her single-minded focus on the forgery issue and eccentric behaviours. After hearing evidence from the applicant, the court concluded that she had sufficient capacity to conduct the proceedings. The trial itself proceeded quickly, with few factual issues, and the assets and debts of the parties were clear. The court was tasked with determining the property of the parties and their debts, as well as the contributions and future needs for the purpose of the judgment.

The court concluded that the outcome received by the applicant was more generous than she may have expected, due to concessions made by the respondent during the proceedings. The court found that the assets of the parties were clear on the material that had been filed, and there was no dispute as to the respondent’s debts, nor the amounts spent by the parties on legal fees. The evidence relating to the contributions and future needs was relatively straightforward. The court found in favour of the applicant, granting her a more generous outcome as a result of the respondent’s concessions.

The court ordered that the respondent pay the applicant a lump sum payment and future spousal maintenance, as well as a portion of the legal costs. The court also ordered that the property be sold and the proceeds divided between the parties according to their respective shares.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Written Submissions were received from the applicant’s lead counsel on 24 August 2022.Background The substantive proceedings in this matter have had a lengthy history, having been filed originally in 2018. Whilst the property pool of the parties was modest, an issue arose as to whether or not the respondent had forged the applicant’s signature on mortgage documents with the Australia and New Zealand Banking Group Limited (“ANZ”) bank. Some years ago ANZ was joined by the applicant as a party to the proceedings, interim injunctions were made, and considerable expense incurred in the dispute between the applicant and ANZ. As is apparent from the first judgment I have given in this matter on 17 March 2022, whether the respondent in fact forged the applicant’s signature or not, made no difference to the case of ANZ as, in substance, ANZ had obtained indefeasible title for its mortgage, and even if it had not the mortgage amount was less than the one-half share of the respondent in the property based upon his legal title of the property: see Henton & Henton [2022] FedFamC1F 574. In these circumstances summary judgment was given in favour of ANZ on 17 March 2022. The dispute between the applicant and respondent was listed for trial in July 2022 and ran for two days. At the commencement of the trial, counsel for the applicant raised a query as to whether or not the applicant had capacity or would require a litigation guardian. I heard evidence from the applicant on her capacity and concluded that she did have sufficient capacity to conduct the proceedings. I make no criticism of counsel for raising this issue as the combination of the applicant’s single-minded view (if not obsession) with the proposition that the respondent had secreted assets, coupled with her somewhat eccentric behaviours, gave rise to real concerns. In this regard, I note that the applicant’s disposition resulted in her being a difficult client to represent. The trial itself proceeded quickly, with few factual issues. The applicant had no evidence of other property of the parties which was not disclosed. There were no disputes as to the extent of the debts of the parties from the relationship. The respondent represented himself and was brief in his cross-examination and submissions. As is apparent from the judgment, the assets of the parties were clear on the material that had been filed, and there was no dispute as to the respondent’s debts, nor the amounts spent by the parties on legal fees. It was a simple matter to ascertain the property of the parties and their debts for the purpose of the judgment, and the evidence relating to the contributions and future needs was also relatively straightforward: see Henton & Henton (No. 2) [2022] FedFamC1F 655. Ultimately, the outcome received by the applicant was far more generous than she may have expected, as a result of concessions made by the respondent in the proceedings. Had there not been the initial issue relating to the applicant’s capacity to give instructions, the hearing, if run efficiently, could have been heard in a day.

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):	PAC 1371 of 2018
Judgment of:	RIETHMULLER J
Date of judgment:	14 October 2022
Catchwords:	FAMILY LAW – COSTS – Where the Federal Circuit and Family Court of Australia (Division 1) has implied power to order solicitors to pay costs – Where the applicant’s solicitors briefed two counsel – Orders made restraining applicant’s solicitors from charging client for both counsel
Legislation:	Family Law Act 1975 (Cth) ss 9, 21 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68 Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth) rr 12.08, 12.13, 12.15
Cases cited:	Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (QLD) Pty Ltd (1993) 45 FCR 224 Darrow & Malden [2018] FamCA 1060 DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 Henton & Henton [2022] FedFamC1F 574 Henton & Henton (No 2) [2022] FedFamC1F 655 Jachimowicz and Jachimowicz (1986) FLC 91–702 Myers v Elman [1993] 4 All ER 484
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of last submission/s:	24 August 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Shaw and Mr Moran
Solicitor for the Applicant:	Jameson Law
Solicitor for the Respondent:	Litigant in person

PAC 1371 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HENTON Applicant
AND:	MR HENTON Respondent

order made by:	RIETHMULLER J
DATE OF ORDER:	14 october 2022