MORALES & MORALES - [2015] FamCA 781

FAMILY COURT OF AUSTRALIA

MORALES & MORALES

[2015] FamCA 781

FAMILY LAW – PRACTICE AND PROCEDURE – Legal representation – whether conflict of interest – 4th year law student daughter of husband’s counsel undertaking work experience at the wife’s solicitors’ firm – apprehended bias – husband’s counsel restrained from appearing for the husband at the trial.

D & J Constructions Proprietary Limited & Head and Others (1987) 9 NSWLR 118
Forrester & Alstone (2015) FCCA 1152
In the Marriage of Thevenaz (1986) FLC 91-748
In the Marriage of McMillan (2000) FLC 93-048
Kallinicos & Hunt (2005) 64 NSWLR 561
Vincenzo & Vincenzo 2014 FamCA 46
Vulkar & Anor & Dunwell & Anor (2013) FLC 93-558
Westpac Banking Corporation & Newey (2013) NSWSC 533

APPLICANT:

Ms Morales

RESPONDENT:

Mr Morales

INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

FILE NUMBER:

MLC

10069

2014

DATE DELIVERED:

26 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

26 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D. Mort

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska

SOLICITOR FOR THE RESPONDENT:

Cahill & Rowe Family Law

Orders

The husband, by himself, his servants and/or his agents be and is hereby restrained by injunction from instructing or briefing, or in any manner engaging or taking advice from Mr Darren Mort of counsel in relation to these proceedings.
Costs of this day be reserved to trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morales & Morales 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 MELBOURNE

FILE NUMBER: MLC 10069 of 2014

Ms Morales

Applicant

And

Mr Morales

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

An urgent Application in a Case is brought by the wife who is the respondent in a substantive parenting and property proceeding fixed for trial on 1 September 2015. The application is for the husband to be restrained from engaging counsel for the husband, Mr Darren Mort, as counsel to appear in the trial. The application is opposed by the husband who seeks to continue to engage Mr Mort for the trial. Mr Mort is in an invidious position because he has an obligation to appear and would need to have “just” reason to now withdraw from acting once he has been briefed. Mr Mort was briefed on 14 August 2015.
The parties filed material today when the matter was listed urgently for mention. The matter proceeded by way of submissions and the applicant wife relied on the following:
·affidavit of the wife sworn today;
·affidavit of the solicitor for the wife, Anna Parker, sworn today;
·Application in a Case filed today; and
·written submissions filed today.
The respondent husband relied upon the following:
·affidavit of the solicitor for the husband, Carolyn Taylor, sworn today.
The parties were not aware until today that the trial will be delayed…

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: [2015] FamCA 781
Decision Date: 26 August 2015

CaseChat Overview and Summary

In *Morales & Morales*, the husband sought to restrain his counsel, Mr Darren Mort, from appearing in the proceedings. The application arose because Mr Mort's daughter, a fourth-year law student, was undertaking work experience at the wife's solicitors' firm. The husband argued that this created a conflict of interest and apprehended bias, necessitating Mr Mort's removal from the case.

The central legal issue before Thornton J was whether the circumstances gave rise to a reasonable apprehension of bias, thereby justifying the restraint of Mr Mort from representing the husband at trial. This required the court to consider the ethical obligations of legal practitioners and the principles governing conflicts of interest in the context of legal representation.

Thornton J found that the daughter's work experience at the wife's solicitors' firm, even if she was not directly involved in the husband's matter, created a sufficient apprehension of bias. The court applied the principle that justice must not only be done but must also be seen to be done, and that the appearance of impartiality is as crucial as actual impartiality. The potential for confidential information to pass, however inadvertently, between the daughter and her father, or for the daughter to gain insights into the wife's case that could indirectly benefit the husband's counsel, was sufficient to raise a reasonable apprehension of bias.

Consequently, Thornton J ordered that the husband be restrained by injunction from instructing or briefing Mr Darren Mort in relation to these proceedings. Costs of the day were reserved to the trial.

Orders

Orders of the court

The husband, by himself, his servants and/or his agents be and is hereby restrained by injunction from instructing or briefing, or in any manner engaging or taking advice from Mr Darren Mort of counsel in relation to these proceedings.

Costs of this day be reserved to trial.

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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