Middleton & Middleton

Case [2009] FMCAfam 781


FEDERAL MAGISTRATES COURT OF AUSTRALIA

MIDDLETON & MIDDLETON [2009] FMCAfam 781
FAMILY LAW – Property – interim hearing – conflict of interest – party/solicitor’s firm acting for solicitor & acting for wife in separate proceedings – employed solicitor acting for principal of firm in which she is employed – property application – Barro/costs orders – spousal maintenance – injunctive relief.
Family Law Act1975 (Cth), Part VIII, ss.72, 74, 75 (2), 75 (2)(g), 80, 114(3), 114(1)

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550
In the Marriage of Barro (1982) 8 Fam LR 855; (1983) FLC ¶91-300
In the Marriage of Best  (1993) 116 FLR 343; (1993) 16 Fam LR 937; (1993) FLC ¶92-418
Bevan & Bevan (1993) 120 FLR 283; (1993) 19 Fam LR 35; (1995) FLC ¶92-600
Bing & Bing (2007) FLC ¶93-318; [2007] Fam CA 418
Blackwell v Barroile Pty Ltd (1994) 51 FCR 347; (1994) 123 ALR 81
Blueseas Investments Pty Ltd v Mitchell (1999) 151 FLR 298;(1999) 25 Fam LR 65; (1999) FLC ¶92-856
Breen v Breen (1991) 65 ALJR 195
Cardile v LED Builders Pty Limited (1999) 198 CLR 380; (1999) 162 ALR 294; (1999) 73 ALJR 657
Chan v Zacharia (1984) 154 CLR 178; (1984) 53 ALR 417; (1984) 58 ALJR 353
Davis v Davis (1976) 11 ALR 445; (1976) 26 FLR 302; (1976)1 Fam LR 11,522
In the Marriage of Davis (1983) 8 Fam LR 975
Dein & Dein v Bealey [1960] NSWR 385
In the Marriage of DJM & JLM (1998) 23 Fam LR 396; (1998) ¶FLC 92-816
Kendling v Kendling (2008) 39 Fam LR 404
K & P [2008] FamCAFC 23; K v P (2008) 216 FLR 445
M v DB (2006) 36 Fam LR 454; (2006) FLC  ¶93-293
In the Marriage of McGillivray & Mitchell (1998) 23 Fam LR 238; (1998) FLC 92-818
McMillan & McMillan (2000) 159 FLR 1; (2000) 26 Fam LR 653; (2000) FLC ¶93-048
In the Marriage of Magro (1989) 93 FLR 365; (1989) 12 Fam LR 770; (1989) FLC ¶92-005
McFarlane v McFarlane; McFarlane v McFarlane [2006] 2 AC 618; [2006] All ER 1
In the Marriage of Mitchell (1995) 120 FLR 292; (1995) 19 Fam LR 44
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209; (1989) 87 ALR 539
Nguyen v Scheiff (2002) 29 Fam LR 177; [2002] NSWSC 151
Patrick Stevedore’s Operations No 2 Pty Limited v Maritime Union of Australia (No.3) (1998) 195 CLR 1; (1998) 153 ALR 643; (1998) 72 ALJR 873
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831
Sheehan & Sheehan [2008] FMCAfam 655
In the Marriage of Thevenaz (1986) 84 FLR 10; (1986) 11 Fam LR 95; (1986) FLC ¶91-748
Varley v Varley [2006] NSWSC 1025
In the Marriage of Vautin (1998) 23 Fam LR 627; (1998) FLC ¶92-827
In the Marriage of BA and RS Waugh

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AGLC
Middleton & Middleton [2009] FMCAfam 781
Case
[2009] FMCAfam 781
Decision Date

CaseChat Overview and Summary

The matter of Middleton & Middleton was heard in the Family Court of Australia, where the central issue was the allocation of property and the determination of spousal maintenance between the parties. The case revolved around the application by the wife, who sought various orders concerning the property settlement and maintenance payments. The court was tasked with deciding whether to disqualify the husband's legal representatives, restrain the husband from accessing certain information, and determine specific financial orders including spousal maintenance and property distribution.

The legal issues before the court encompassed the disqualification of the husband's legal representatives, the restraint of the husband from accessing certain information related to the wife's personal injury claim, and the establishment of spousal maintenance and property distribution terms. Additionally, the court needed to decide on the management and restraint of certain assets to prevent alienation or encumbrance without mutual consent.

In addressing these issues, the court found that the husband's legal representatives were disqualified from continuing to represent him, and the husband was restrained from accessing information held by his former firm. The court ordered specific financial contributions from the husband towards the wife's legal fees and established a spousal maintenance payment of $700 per week. Furthermore, the court imposed restrictions on the transfer or encumbrance of various properties and assets, and granted the wife sole occupation of the matrimonial home. The court also mandated a conciliation conference and outlined procedural steps for the continuation of the proceedings.

Orders

Orders of the court

UNTIL FURTHER ORDER, IT IS ORDERED:

1.

That the firm [B] and any employee of that firm be disqualified from acting for the Husband in these proceedings, and the Husband be restrained from continuing to retain the firm known as [B], or any partner or employee of that firm as his legal representative.

2.

That the Husband be restrained from accessing information held by the firm known as [B] or by any employee of the firm, in relation to the Wife’s personal injury claim.

3.

That within 10 days of the date of these Orders the husband will do all acts and things to draw from the Westpac Variable Rate Investment Property Loan ([2]) the sum of $30,000, to be deposited into the trust account of Evans Yeend Family Lawyers, such funds to be applied to the costs of valuations and legal fees on behalf of the Applicant Wife.

4.

That the treatment of the payment of fees in accordance with Order 3 be a matter for the trial judge as to payment of spousal maintenance on behalf of the wife, partial distribution of matrimonial property on behalf of the wife or payment of legal fees.

5.

That in addition to funds and other financial support currently provided by the Husband to the Wife (which are to continue) the Husband pay to the Wife the sum of $700.00 per week by way of spousal maintenance. In the absence of agreement between the parties the sum of $700.00 per week is to be paid until the final resolution of these proceedings.

6.

That unless otherwise agreed in writing between the parties and co-signed by their legal representatives, both parties be restrained from transferring, encumbering or dealing with the following:

(a) Rural property and home at Property L;

(b) Adjoining rural acreage known as Property A;

(c) Holiday home at Property G, Queensland;

(d) The company, [C] Pty Ltd;

(e) Commercial premises at Property M;

(f) Investment property at Property E, Brisbane, known as [E];

(g) The company, [L] Pty Ltd;

(h) Property L Belted Galloway Stud;

(i) The Middleton Family Trust;

(j) The Middleton Family Superannuation Fund;

(k) Contents of the matrimonial home;

(l) Art collection within the matrimonial home;

(m) Motor vehicles including an [X] and [Y];

(n) Share portfolio;

(o) Bank accounts as follows:

(i) Westpac cash management account ([1]);

(ii) Westpac variable rate investment property loan ([2]);

(iii) Westpac variable rate investment property loan ([3]);

(iv) The business cheque account ([4]);

(v) Westpac Advantage Saver ([5]); and

(vi) Westpac Fixed Investment Property Loan.

7.

That the Wife have sole occupation of the matrimonial home known and situate at Property L, save that the Husband is to have unfettered access to the animals on the property and the cattle stud and to any dwellings, machinery (including tractors), tools or other material in relation to their care and well-being.

8.

That the parties attend a conciliation conference with a Registrar on

21 October 2009 at 10:00am.

9.

That each party’s solicitors email to the Registrar a conciliation conference document no later than 2.00 pm the day before the conference.

10.

That if either party is in a superannuation plan that party forthwith make an application pursuant to section 90MZB to the trustee of the plan for information about the party’s interest in the plan and provide a copy of that information to the other party as soon as it is received.

11.

That if valuations are in issue the parties are to exchange copies of valuations or market appraisals no later than 14 days prior to the date of the conference.

12.

That the matter be adjourned for further directions on 27 November 2009 at 9:15am .

13.

Costs reserved.

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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