Medlon & Medlon (No 3) - [2015] FamCAFC 37

FAMILY COURT OF AUSTRALIA

MEDLON & MEDLON (NO. 3)

[2015] FamCAFC 37

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the wife seeks that the husband’s senior counsel be restrained from further acting in this matter – Where the wife faces insurmountable hurdles – Where there is insufficient evidence to establish that a conflict of interest exists – Where issuing subpoenae to establish that a telephone call was made to and from chambers or to and from a solicitor’s office would not demonstrate who made the call, who received it or the content of any conversation – Where the wife seeks that the husband’s solicitor be restrained from further acting in this matter – Where the allegations made by the wife are serious but as they have not been established they do not provide a basis for granting the order sought – Where the wife was estopped from pursuing the application as a result of an email sent to the appeal registrar and the husband’s solicitor in which she advised that she would not pursue her application against the husband’s solicitor and instead would address her concerns with her directly – Where the wife accepted that she could not pursue the application and it should be dismissed – Where the wife seeks an order preventing publication of all judgments previously delivered in this matter – Where there is nothing in the wife’s affidavit or in her oral submissions which brings the circumstances of this matter within any of the grounds set out in s 102PF of the Family Law Act 1975 (Cth) – Where there is nothing set out in any of the judgments delivered which could provide the basis for an order for suppression or non-publication - Applications dismissed.

Family Law Act 1975 (Cth) – ss 102PD, 102PE, and 102PF

Family Law Rules (2004) (Cth) – r 5.19

APPLICANT:

Ms Medlon

RESPONDENT:

Mr Medlon

FILE NUMBER:

ADC

491

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

13 March 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:	12 February 2015
LOWER COURT JURISDICTION:	Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 October 2012

LOWER COURT MNC:

[2012] FMCAfam 1479

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Nelson QC with
Mr Grant

SOLICITOR FOR THE RESPONDENT:

Adelaide Family Law

Orders made 12 February 2015

Paragraph 2 in the application in an appeal filed by the wife on 5 July 2013 seeking an order that the husband’s counsel, Ms Frances Nelson QC, be restrained and an injunction be granted restraining her from further acting in this matter be dismissed.
Paragraph 3 in the application in an appeal filed by the wife on 5 July 2013 seeking an order that the husband’s solicitor, Ms Joanne Collie, be restrained and an injunction be granted restraining her from further acting in this matter be dismissed.
Judgment be reserved in relation to paragraphs 2 and 3 in the application in an appeal…

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 Medlon & Medlon (No 3)

Details

AGLC: Medlon & Medlon (No 3) [2015] FamCAFC 37
Case: [2015] FamCAFC 37
Decision Date: 13 March 2015

CaseChat Overview and Summary

The wife, Ms Medlon, appealed against the decision of the Federal Magistrates Court in Medlon & Medlon (No. 2) [2013] FMCAfam 1479, and sought to restrain Ms Frances Nelson QC, counsel for the husband, and Ms Joanne Collie, the husband’s solicitor, from further acting in the matter. She also sought orders for the suppression of publication of the matter. The court dismissed all the wife’s applications.The wife’s application to restrain Ms Nelson was dismissed because there was no factual basis for the claim of a conflict of interest. The wife alleged that she had a telephone conversation with Ms Nelson in early 2011. However, the evidence was that Ms Nelson was overseas at the relevant time and did not return to work until 19 January 2011. The wife could not establish what information was discussed, and even if she could, it would not have established a conflict of interest. The wife also sought to subpoena telephone records but the court found that this would not have demonstrated who made the call, who received it, or the content of any conversation.The application to restrain Ms Collie was dismissed because it had no basis. The wife alleged that Ms Collie had made defamatory comments about her to third parties, but these allegations had not been established. Further, the wife was estopped from pursuing this application because she had sent an email to the appeal registrar and Ms Collie stating that she would forgo seeking the injunction and address her concerns with Ms Collie directly.The application seeking orders for non-publication was dismissed because there was no basis for such an order. The wife’s affidavit did not set out any grounds for such an order, and there was nothing in the judgments that could provide the basis for such an order. In dismissing the application the court observed that it was essential in the interests of justice for the criticisms of the wife to be in the public arena.

Orders