Merritt & Bruckner (No 5) - [2024] FedCFamC1F 719

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Merritt & Bruckner (No 5) [2024] FedCFamC1F 719

File number: ADC 1267 of 2016

Judgment of: MCNAB J

Date of judgment: 22 October 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother seeking to restrain the father’s counsel from acting for him at final hearing – Where the mother alleges that she contacted the father’s counsel previously and sought to engage her and as a consequence she has knowledge of the matter – Where the father’s counsel submits that she was never engaged to act for the mother and does not recall the preliminary enquiries made by the mother – Where the mother has failed to identify the relevant confidential information with sufficient particularity in her affidavit – Application dismissed – Order for costs.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641

Osferatu & Osferatu (2015) FLC 93-666

Division: Division 1 First Instance

Number of paragraphs: 17

Date of hearing: 22 October 2024

Place: Melbourne

Solicitor for the Applicant: Ms Lewis-Dermody of The Family Law Project (Adelaide, via videolink)

Counsel for the Respondent: The Respondent appeared in person (Adelaide, via videolink)

Solicitor for the Independent Children's Lawyer: Ms Shorter of Shorter Legal Pty Ltd (Adelaide, via videolink)

ORDERS

ADC 1267 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MERRITT

Applicant

MS BRUCKNER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:
1.The mother’s application in a proceeding filed 4 July 2024 be dismissed.
2.The mother pay the following costs:
(a)the father’s costs fixed in the sum of $1,645.60; and
(b)the Independent Children's Lawyer’s costs fixed in the sum of $895.40,
with such costs to be paid to the Legal Aid Commissioner of South Australia.

AND THE COURT NOTES THAT:
A.The matter remains listed before the Honourable Justice Hartnett for final hearing on 18 November 2024 at 10.00am for 10 days.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Merritt & Bruckner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCNAB J

By an Application in a Proceeding filed on 4 July 2024, the mother…

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: [2024] FedCFamC1F 719
Decision Date: 22 October 2024

CaseChat Overview and Summary

In the case of Merritt & Bruckner (No 5), the mother sought to restrain the father's counsel, Ms JJ, from acting for him at the final hearing. The mother alleged that she had previously contacted Ms JJ and attempted to engage her, thereby gaining knowledge of the matter. Ms JJ, in turn, asserted that she was never formally engaged by the mother and did not recall the preliminary discussions. The mother's application was dismissed, and the court ordered her to pay costs to both the father and the Independent Children's Lawyer.

The primary legal issues before the court were whether Ms JJ had obtained confidential information from the mother and whether restraining her from representing the father would be in the interests of justice. The court had to determine the credibility of the mother's claim that she had previously engaged Ms JJ and whether Ms JJ had indeed acquired confidential information that would necessitate her disqualification from the case.

In reaching its decision, the court accepted Ms JJ's evidence that there was no substantive discussion about the case and that she did not possess any confidential information relevant to the matter. The court found that restraining Ms JJ from representing the father would not serve the interests of justice, given the lack of evidence that she had gained any confidential information. The court also noted that the mother had been unsuccessful in her proceedings and had been aware of the father's response since August 2024. Therefore, the court dismissed the mother's application and ordered her to pay the costs incurred by the father and the Independent Children's Lawyer.

The final orders of the court included dismissing the mother's application, directing her to pay the father's costs in the amount of $1,645.60, and the Independent Children's Lawyer's costs in the amount of $895.40, both payable to the Legal Services Commissioner of South Australia. The matter was scheduled to proceed with the final hearing before Justice Hartnett on 18 November 2024.

Orders

Orders of the court

ADC 1267 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MERRITT

Applicant

MS BRUCKNER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:

1. The mother’s application in a proceeding filed 4 July 2024 be dismissed.

2. The mother pay the following costs:

(a) the father’s costs fixed in the sum of $1,645.60; and

(b) the Independent Children's Lawyer’s costs fixed in the sum of $895.40,

with such costs to be paid to the Legal Aid Commissioner of South Australia.

AND THE COURT NOTES THAT:

A. The matter remains listed before the Honourable Justice Hartnett for final hearing on 18 November 2024 at 10.00am for 10 days.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By an Application in a Proceeding filed on 4 July 2024, the mother seeks orders that Ms JJ of counsel be restrained from representing the applicant father in the proceedings relating to the substantive application which is listed for final hearing for 10 days to commence on 18 November 2024 before Hartnett J. She also sought orders that Judge Brown remain the presiding judge at the trial, although orders made by Judge Brown on 19 July 2024 transferred the matter to Division 1 of the Federal Circuit and Family Court of Australia. In the submissions made today, the mother stated that the only matter that she wished to agitate is the application in relation to a restraint on Ms JJ of counsel from further representing the applicant father.BACKGROUND The mother relies on an affidavit filed on 4 July 2024 in support of her application. At [3] and [4] of that affidavit, the mother states:3.Initial contact with [Ms JJ] by the mother was in October 2022, it was at this time that the case between the mother and father was discussed in significant detail.4.Following the initial contact in October 2022, the Mother made further contact with [Ms JJ] in discussing her case in depth on the 5 of December 2022. The Mother refers to discussing her case with [Ms JJ] on a prior occasion in her email dated 5 December 2024. The mother makes reference to an email which was sent from Ms JJ on 5 December 2022 to the mother, and she states:5.[Ms JJ] acknowledges the case discussion with the Mother, in her return email later the same day when she replied, "as discussed when we spoke". [Ms JJ] continued to state that she would be "more than happy to accept the brief'. A professional only accepts a brief once familiar and confident with understanding the case. Therefore, [Ms JJ's] willingness to accept the brief requested, proves that she understood the case well enough to decide that she was confident to proceed and provide the best representation in the case. The mother submits that Ms JJ would only have been prepared to accept the brief if she was familiar with the matter and was confident in her understanding of the case. She says that the willingness of Ms JJ to accept the brief is proof that she understood the case well enough to decide to proceed and “provide the best representation”. Ms JJ has filed an affidavit in response dated 14 August 2024. By that affidavit, at [4] she refers to [2] of the mother’s affidavit and says that:4.I refer to paragraph 2 of the mother’s Affidavit and say that I do not have any recollection whatsoever of having conversations with the mother. I have checked my calendar diary for the time that the mother says she contacted me. I am not aware as to whether the mother telephoned me on my mobile telephone or the number of the office of my practice. [Ms JJ] continues at [5]:5.At that time, and following my ceasing my solicitors practice, people continued to telephone me to ascertain whether or not I was able to represent them. My contact details at that time remained in circulation and available on the internet if you undertook a search of my name.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I accept the evidence of Ms JJ that there was no discussion of any detail regarding the case and that counsel is not in possession of confidential information relevant to this matter. I find that the interests of justice are not served by requiring Ms JJ to be restrained, and in those circumstances, I dismiss the application.CONCLUSION In the circumstances where each of the ICL and the father are in receipt of assistance by way of Legal Aid, and it is a publicly funded program, and where the mother has been wholly unsuccessful in the proceedings and has been on notice of the matters raised by the father in response since August of this year, I will make an order that the mother pay the father’s costs incurred by the Legal Services Commission in the sum of $1,645.60, and with such sum payable to the Legal Services Commissioner of South Australia, and that the mother pay the costs of the ICL in the sum of $895.40, payable to the Legal Services Commissioner of South Australia. I note that the mother says that she is not in a position to pay costs, but impecuniosity is not a reason of itself to not make an order for costs. The provisions of s 117(2A) of the Family Law Act 1975 (Cth) were raised with the mother and submissions were received regarding the relevant subsections prior to the orders being made.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	ADC 1267 of 2016
Judgment of:	MCNAB J
Date of judgment:	22 October 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother seeking to restrain the father’s counsel from acting for him at final hearing – Where the mother alleges that she contacted the father’s counsel previously and sought to engage her and as a consequence she has knowledge of the matter – Where the father’s counsel submits that she was never engaged to act for the mother and does not recall the preliminary enquiries made by the mother – Where the mother has failed to identify the relevant confidential information with sufficient particularity in her affidavit – Application dismissed – Order for costs.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 Osferatu & Osferatu (2015) FLC 93-666
Division:	Division 1 First Instance
Number of paragraphs:	17
Date of hearing:	22 October 2024
Place:	Melbourne
Solicitor for the Applicant:	Ms Lewis-Dermody of The Family Law Project (Adelaide, via videolink)
Counsel for the Respondent:	The Respondent appeared in person (Adelaide, via videolink)
Solicitor for the Independent Children's Lawyer:	Ms Shorter of Shorter Legal Pty Ltd (Adelaide, via videolink)

ADC 1267 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MERRITT Applicant
MS BRUCKNER Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:	MCNAB J
DATE OF ORDER:	22 OCTOBER 2024