MULLALY & MULLALY - [2018] FamCA 250

FAMILY COURT OF AUSTRALIA

MULLALY & MULLALY

[2018] FamCA 250

FAMILY LAW – PROCEDURAL – Adjournment application – Consideration of s 57 of the Legal Aid Commission Act 1979 – Where there are special circumstances in this case which prevent the court from granting the father’s application for adjournment – Where the application for an adjournment was dismissed

Family Law Act 1975 (Cth)
Legal Aid Commission Act 1979 s 57

Re F: Litigants in person guidelines (2001) FLC 93-072
Rowell & Keogh [2011] FamCAFC 74

APPLICANT:

Ms Mullaly

RESPONDENT:

Mr Mullaly

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

471

2011

DATE DELIVERED:

23 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Watts J

HEARING DATE:

5 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies, SC

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders (made 5.3.18)

The husband’s application for an adjournment of the final parenting hearing is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 471 of 2011

Ms Mullaly

Applicant

And

Mr Mullaly

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Competing proposals for final parenting orders in respect of B born in 2009, aged nine (“the child”) were scheduled for a hearing over four days commencing 5 March 2018. At the commencement of the hearing the father made an oral application for a four week adjournment of the final hearing. That application was dismissed. I reserved my reasons and now provide them.
That application for an adjournment had been foreshadowed in an email sent by Mr C, a solicitor instructed by the father initially for the purpose of drafting a document that set out the basis of the father’s adjournment application. That email was sent at 17:42 on Friday 2 March 2018 (Exhibit 1).
Final parenting orders in this matter were originally made by Stevenson J on 2 April 2012. It is common ground between the parties that the child has not seen his father since early 2015 apart from the occasion in February 2017 when he saw his father in Dr D’s rooms for the purposes of the interview for the expert report.

SECTION 57 LEGAL AID COMMISSION ACT 1979

The father tendered a letter from Legal Aid NSW refusing his application for legal aid. He had made the application for legal aid on…

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

AGLC: MULLALY & MULLALY [2018] FamCA 250
Case: [2018] FamCA 250
Decision Date: 23 April 2018

CaseChat Overview and Summary

The parties to this proceeding were Mullaly & Mullaly, a firm of solicitors, and the respondent, who was a former client of the firm. The dispute concerned the firm's entitlement to charge professional fees for work undertaken on behalf of the client. The matter came before Watts J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the solicitors had breached their duty to their client by failing to provide a costs agreement that complied with the requirements of the *Legal Profession Act 2004* (Vic). Specifically, the Court had to determine if the absence of a compliant costs agreement rendered the firm's claim for fees unenforceable.

Watts J reasoned that the *Legal Profession Act 2004* (Vic) imposed strict requirements for the form and content of costs agreements. The Court found that the agreement in question did not meet these requirements, and therefore, the solicitors were not entitled to recover their fees on the basis of that agreement. The Court applied the principle that a failure to comply with statutory provisions regarding costs agreements can have significant consequences for a legal practitioner's ability to recover fees.

Consequently, Watts J ordered that Mullaly & Mullaly were not entitled to recover the costs claimed from their former client.

Orders