MILLHOUSE & MULLENS - [2015] FamCA 754

FAMILY COURT OF AUSTRALIA

MILLHOUSE & MULLENS

[2015] FamCA 754

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – Where the wife seeks an order that the husband be restrained from continuing to instruct his solicitor and his solicitor’s firm to represent him in the proceedings – application dismissed.

FAMILY LAW – PROPERTY – Interim – Where the wife seeks other injunctive relief and orders for disclosure, spousal maintenance and interim litigation costs funding – Where it is inappropriate to seek such other orders before the application to restrain the husband from continuing to instruct his solicitors from representing him is determined.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Naczek v Dowler [2011] FamCAFC 179
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Ms Millhouse

RESPONDENT:

Mr Mullens

FILE NUMBER:

BRC

10196

2013

DATE DELIVERED:

11 September 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Hirst & Co Family Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Barry.Nilsson. Lawyers

Orders

That the wife’s application for the husband to be restrained from continuing to instruct Mr Geoff Sinclair and Barry.Nilsson. Lawyers to represent him in these proceedings is dismissed.
That the balance of the wife’s application for interim orders contained in her Amended Application in a Case filed 4 August 2015 is adjourned for hearing before her Honour Justice Hogan in the Judicial Duty List commencing at 10.00 am on Monday, 26 October 2015.
That the husband shall file and serve any Response and affidavit evidence upon which he intends to rely at the hearing of the wife’s application on 26 October 2015 on or before Friday, 16 October 2015.
That the husband shall file and serve any written submissions in support of his application for costs of and incidental to the wife’s dismissed application for restraint, on or before Friday, 2 October 2015.
That the wife shall file and serve any written submissions in response to any written submissions in support of the husband’s application for costs, on or before Friday, 23 October 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millhouse & Mullens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10196 of 2013

Ms Millhouse

Applicant

And

Mr Mullens

Respondent

REASONS FOR JUDGMENT

This application for interim orders in property adjustment proceedings that are pending in the Court came before me in the Judicial Duty List on Monday, 24 August 2015. I reserved my judgment that day.
In the substantive proceedings, the wife seeks property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Those proceedings were commenced by her in 2014.
By Amended Application…

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 MILLHOUSE & MULLENS

Details

AGLC: MILLHOUSE & MULLENS [2015] FamCA 754
Case: [2015] FamCA 754
Decision Date: 11 September 2015

CaseChat Overview and Summary

In the Family Court of Australia, the wife sought an order restraining the husband from continuing to instruct his solicitor and the solicitor's firm to represent him in the proceedings, alleging a conflict of interest. The wife also sought other interim relief, including injunctive orders, disclosure, spousal maintenance, and interim litigation costs funding.

The primary legal issue before Forrest J was whether the husband's legal representation constituted a conflict of interest that warranted his disqualification from the proceedings. A secondary issue was the appropriate procedural approach to the wife's other interim applications, given the pendency of the conflict of interest application.

Forrest J dismissed the wife's application to restrain the husband's legal representation. The court reasoned that it was inappropriate to consider the wife's other interim applications for injunctive relief, disclosure, spousal maintenance, and interim costs funding before the application to disqualify the husband's solicitors had been determined. The balance of the wife's application for interim orders was adjourned for a separate hearing.

Orders

Orders of the court

That the wife’s application for the husband to be restrained from continuing to instruct Mr Geoff Sinclair and Barry.Nilsson. Lawyers to represent him in these proceedings is dismissed.

That the balance of the wife’s application for interim orders contained in her Amended Application in a Case filed 4 August 2015 is adjourned for hearing before her Honour Justice Hogan in the Judicial Duty List commencing at 10.00 am on Monday, 26 October 2015.

That the husband shall file and serve any Response and affidavit evidence upon which he intends to rely at the hearing of the wife’s application on 26 October 2015 on or before Friday, 16 October 2015.

That the husband shall file and serve any written submissions in support of his application for costs of and incidental to the wife’s dismissed application for restraint, on or before Friday, 2 October 2015.

That the wife shall file and serve any written submissions in response to any written submissions in support of the husband’s application for costs, on or before Friday, 23 October 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.