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 |
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- AGLC
- Middleton & Middleton [2009] FMCAfam 781
- Case
- [2009] FMCAfam 781
- Decision Date
CaseChat Overview and Summary
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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