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Mihova & Mihova

Mihova & Mihova

Case [2025] FedCFamC1F 113 3 March 2025

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mihova & Mihova [2025] FedCFamC1F 113

File number(s): SYC 10253 of 2024

Judgment of: BEHRENS J

Date of judgment: 3 March 2025

Catchwords: FAMILY LAW – LEGAL PRACTITIONERS –Application in a proceeding – Property proceedings – Where the Wife sought a restraint on the Husband’s solicitors continuing to act for him – Where Wife had an initial consultation with those solicitors before she commenced proceedings – Where Application presents novel factual circumstances – Where it was argued that the Husband’s solicitors and the Husband should be restrained because of the risk of breach of duty of confidence – Where it was argued that the restraint is necessary to protect the appearance of justice –Where it is found that confidential information was given by the Wife to the solicitor with whom she had the consultation –Where there is an information barrier in place – Where undertakings have been given – Where it is found there is no real risk of the Wife’s confidential information being disclosed to the solicitors who now work for the Husband –Where there is no issue of time or delay telling against the restraint – Where the risk of a litigant having appointments with multiple solicitors for the purpose of conflicting them out for the other party considered – Where protection of the administration of justice does not require a restraint against the Husband and his solicitors – Where the Application in a Proceeding is dismissed

Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Cases cited:
Billington & Billington (No 2) [2008] FamCA 409

Charisteas & Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160

Cleveland Investments Global Ltd v Evans [2010] NSWSC 567

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

Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181

Li v Jin Lian Group [2018] NSWSC 479

McMillan& McMillan (2000) FLC 93-048; [2000] FamCA 1046

Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475

Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177

Porter v Dyer (2022) 402 ALR 659

Division: Division 1 First Instance

Number of paragraphs: 42

Date of last submission/s: 20 February 2025

Date of hearing: 20 February 2025

Place: Sydney

Counsel for the Applicant: Mr Jones SC

Solicitor for the Applicant: Juris Cor Legal

Counsel for the Respondents: Mr Sirtes SC

Solicitor for the Respondents: Longton Legal
ORDERS

SYC 10253 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MIHOVA

Applicant

AND:
MR MIHOVA

First Respondent

B PTY LTD

Second Respondent

C PTY LTD

Third Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

3 MARCH 2025

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 13 February 2025 is dismissed.

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…

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 Mihova & Mihova

Details

AGLC: Mihova & Mihova [2025] FedCFamC1F 113
Case: [2025] FedCFamC1F 113
Decision Date: 3 March 2025

CaseChat Overview and Summary

Ms Mihova sought a restraint order to prevent Mr Mihova, her former husband, and his current solicitors from continuing to act in the family law proceedings. Ms Mihova had previously consulted with the solicitors before the proceedings began, and she was concerned that they might disclose confidential information shared during that consultation. The Federal Circuit and Family Court of Australia was tasked with determining whether there was a real risk of a breach of the duty of confidence and whether the restraint was necessary to protect the administration of justice.

The court considered several factors, including the existence of an information barrier, the undertakings given by the solicitors, and the lack of evidence suggesting that confidential information would be disclosed. The court also weighed the risk of a litigant attempting to conflict out the opposing party's solicitors and concluded that the appearance of justice did not require a restraint order. The court found no real risk of disclosure and no significant issues of delay or time constraints.

The court dismissed the application for a restraint order. It determined that the risk of confidential information being disclosed was minimal due to the information barrier and the undertakings provided by the solicitors. The court also noted that the administration of justice did not necessitate such a restraint in these circumstances. The order was made on 3 March 2025, dismissing the application filed on 13 February 2025. The form of the order is subject to potential review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

SYC 10253 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MIHOVA

Applicant

AND:

MR MIHOVA

First Respondent

B PTY LTD

Second Respondent

C PTY LTD

Third Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

3 MARCH 2025

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 13 February 2025 is dismissed.

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

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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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Citations

Mihova & Mihova [2025] FedCFamC1F 113

Cases Citing This Decision

No citing cases yet.

Cases Cited

Charisteas & Charisteas [2022] FedCFamC1A 160
Citation 1

…(NSW) Cases cited: Billington & Billington (No 2) [2008] FamCA 409 Charisteas & Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160 Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Li v Jin Lian Group…
Porter v Dyer [2022] FCAFC 116
Citation 2 (Para 4)

…In Charisteas & Charisteas (2022) FLC 94-109, the Full Court at [37] adopted the test applied by the Federal Court in Porter v Dyer (2022) 402 ALR 659, and originally articulated by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (emphasis in original): The test to be applied is whether…
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Citation 3 (Para 5)

…d, and whether there is a real risk that confidential information might be disclosed (per Thawley J in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 (“ Dyer v Chrysanthou (No 2) (Injunction) ”) at [2]). Other matters need to be balanced, including the consideration that due weight must be given to the pub…
Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475
Citation 4 (Para 4)

…y the Federal Court in Porter v Dyer (2022) 402 ALR 659, and originally articulated by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (emphasis in original): The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper admi…
Jing Li v Jin Lian Group Pty Ltd [2018] NSWSC 479
Citation 5 (Para 5)

…be alert to the risk that such applications may be “misused” or “inappropriately pursued” (per Gleeson JA in Li v Jin Lian Group [2018] NSWSC 479 (“ Li v Jin Lian Group ”) at [8]).…
Osferatu & Osferatu [2015] FamCAFC 177
Citation 6

…CA 1046 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177 Porter v Dyer (2022) 402 ALR 659 Division: Division 1 First Instance Number of paragraphs: 42 Date of last submission/s: 20 February 2025 Date of hearing: 20 February 2025 Place: Sydney Cou…
Cleveland Investments Global Ltd v Evans [2010] NSWSC 567
Citation 7 (Para 10)

…A restraining order was also made in Cleveland Investments Global Ltd v Evans [2010] NSWSC 567, but the circumstances in that matter were quite unusual, as the following summary from the judgment of Ward CJ at [52] makes clear (emphasis added): It seems to me that the fair-minded reasonably informed member of the p…
Billington & Billington (No 2) [2008] FamCA 409
Citation 8 (Para 13)

…ear that the jurisdiction to grant relief of the kind sought by the wife “‘is to be exercised with caution’” ( Billington & Billington (No 2) [2008] FamCA 409 (“ Billington ”), per Coleman J at [43]). This is, in part, because of the “public interest in a litigant not being deprived of the lawyer of his or her choi…
Kallinicos v Hunt [2006] NSWSC 723
Citation 9 (Para 5)

…As Brereton J made clear in Kallinicos v Hunt (2005) 64 NSWLR 561 at [76] (“ Kallinicos ”), this is a jurisdiction which is exceptional and must be exercised with caution. The “proper administration of justice” ground can overlap with the issue of breach of confidence because the matters about which a reasonably infor…
Kallinicos v Hunt [2005] NSWSC 1181
Citation 10 (Para 5)

…As Brereton J made clear in Kallinicos v Hunt (2005) 64 NSWLR 561 at [76] (“ Kallinicos ”), this is a jurisdiction which is exceptional and must be exercised with caution. The “proper administration of justice” ground can overlap with the issue of breach of confidence because the matters about which a reasonably informed m…
McMillan & McMillan [2000] FamCA 1046
Citation 11

…) 64 NSWLR 561; [2005] NSWSC 1181 Li v Jin Lian Group [2018] NSWSC 479 McMillan & McMillan (2000) FLC 93-048; [2000] FamCA 1046 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177 Porter v Dyer (2022) 402 ALR 659 Division: Division 1 First Instance…

Legislation Cited

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) 10
2 mentions (from Para 26)
Family Law Act 1975 (Cth)
1 mention

File number(s):	SYC 10253 of 2024
Judgment of:	BEHRENS J
Date of judgment:	3 March 2025
Catchwords:	FAMILY LAW – LEGAL PRACTITIONERS –Application in a proceeding – Property proceedings – Where the Wife sought a restraint on the Husband’s solicitors continuing to act for him – Where Wife had an initial consultation with those solicitors before she commenced proceedings – Where Application presents novel factual circumstances – Where it was argued that the Husband’s solicitors and the Husband should be restrained because of the risk of breach of duty of confidence – Where it was argued that the restraint is necessary to protect the appearance of justice –Where it is found that confidential information was given by the Wife to the solicitor with whom she had the consultation –Where there is an information barrier in place – Where undertakings have been given – Where it is found there is no real risk of the Wife’s confidential information being disclosed to the solicitors who now work for the Husband –Where there is no issue of time or delay telling against the restraint – Where the risk of a litigant having appointments with multiple solicitors for the purpose of conflicting them out for the other party considered – Where protection of the administration of justice does not require a restraint against the Husband and his solicitors – Where the Application in a Proceeding is dismissed
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Cases cited:	Billington & Billington (No 2) [2008] FamCA 409 Charisteas & Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160 Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Li v Jin Lian Group [2018] NSWSC 479 McMillan& McMillan (2000) FLC 93-048; [2000] FamCA 1046 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177 Porter v Dyer (2022) 402 ALR 659
Division:	Division 1 First Instance
Number of paragraphs:	42
Date of last submission/s:	20 February 2025
Date of hearing:	20 February 2025
Place:	Sydney
Counsel for the Applicant:	Mr Jones SC
Solicitor for the Applicant:	Juris Cor Legal
Counsel for the Respondents:	Mr Sirtes SC
Solicitor for the Respondents:	Longton Legal

SYC 10253 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MIHOVA Applicant
AND:	MR MIHOVA First Respondent B PTY LTD Second Respondent C PTY LTD Third Respondent

ORDER MADE BY:	BEHRENS J
DATE OF ORDER:	3 MARCH 2025