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Ogilvie & Farnam

Ogilvie & Farnam

Case [2024] FedCFamC2F 793 24 June 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ogilvie & Farnam [2024] FedCFamC2F 793

File number(s): ADC 6132 of 2020

Judgment of: JUDGE MCGINN

Date of judgment: 24 June 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitor’s overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – where the solicitor for the husband is the “intimate partner” of the husband – injunction granted

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

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Cases cited:
Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491

Bosgard & Bosgard [2013] FamCA 308; (2014) 49 Fam LR 612

Coppola v Nobile [2012] SASC 42

Holborow v Rudder [2002] WASC 265

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

Mitchell v Burell [2008] NSWSC 772

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

Myers v Elman [1940] AC 282

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

Otta International Pty Ltd v Asia Pacific Carbon Pte Ltd [2015] NSWSC 1818

Pickard and Brown- Jones [2014] FCWA 12

Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659

Scallan v Scallan [2001] NSWSC 1078

Sellers & Burns & Anor [2019] FamCAFC 113;

Venter & Venter (No 6) [2024] FedCFamC1F 94

[2010] FMCA 777 (unreported)

[2010] FMCA 783 (unreported)

Division: Division 2 Family Law

Number of paragraphs: 127

Date of hearing: 17 June 2024

Counsel for the Applicant: Mr V

Solicitor for the Applicant: U Lawyers

Counsel for the Respondent: Mr T

Solicitor for the Respondent: Firm AB
ORDERS

ADC 6132 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FARNAM

Applicant

AND:
MR OGILVIE

Respondent

ORDER MADE BY:

JUDGE MCGINN

DATE OF ORDER:

24 JUNE 2024

IT IS ORDERED:
1.That the husband be restrained and an injunction be granted restraining him from engaging the services of the law firm Firm AB to act on his behalf in these proceedings.
2.That there be an extension of time to 21 September 2024 for the filing of documents required pursuant to order 8 of 9 April 2024 and order 10 of 30 May 2024.
3.That there be liberty for 10 days from the date of these orders to either party to seek to relist this matter in relation to the question of costs in relation to paragraph 2a of the Application in a Proceeding sealed 27 May 2024 and paragraph 3a of the Response to an Application in a Proceeding sealed 29 May 2024 upon written request to the associate to Judge McGinn.
4.That failing receipt of any request for the relisting of this matter in relation to the question of costs pursuant to order 3 that the said Application in a Proceeding and the said Response do otherwise stand dismissed.
5.That order…

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 Ogilvie & Farnam

Details

AGLC: Ogilvie & Farnam [2024] FedCFamC2F 793
Case: [2024] FedCFamC2F 793
Decision Date: 24 June 2024

CaseChat Overview and Summary

In the matter of Ms Farnam versus Mr Ogilvie, the applicant sought an injunction to prevent the husband from continuing to engage a specific law firm to act on his behalf. The application was heard in the Federal Circuit and Family Court of Australia, Division 2. The applicant, Ms Farnam, objected to the solicitor for the husband on the basis that the solicitor was also the husband's intimate partner, raising concerns about conflicts of interest and impartiality.

The court was required to determine whether the applicant's objections were valid and whether it was in the best interests of justice to grant the injunction. The court examined the potential for conflicts of interest and the solicitor's duty to the court, considering the solicitor's relationship with the husband. Given the intimate nature of the relationship, the court found that there was a significant risk of bias and conflict of interest, which could undermine the fairness and integrity of the proceedings.

The court granted the injunction, restraining the husband from engaging the specified law firm. The court also extended the deadline for filing certain documents and granted liberty to either party to seek a relisting for the question of costs. The trial was set to continue as scheduled, but with the husband required to engage a different legal representative. This decision underscores the importance of impartiality and the overriding duty of solicitors to the court in family law proceedings.

Orders

Orders of the court

ADC 6132 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS FARNAM

Applicant

AND:

MR OGILVIE

Respondent

ORDER MADE BY:

JUDGE MCGINN

DATE OF ORDER:

24 JUNE 2024

IT IS ORDERED:

1. That the husband be restrained and an injunction be granted restraining him from engaging the services of the law firm Firm AB to act on his behalf in these proceedings.

2. That there be an extension of time to 21 September 2024 for the filing of documents required pursuant to order 8 of 9 April 2024 and order 10 of 30 May 2024.

3. That there be liberty for 10 days from the date of these orders to either party to seek to relist this matter in relation to the question of costs in relation to paragraph 2a of the Application in a Proceeding sealed 27 May 2024 and paragraph 3a of the Response to an Application in a Proceeding sealed 29 May 2024 upon written request to the associate to Judge McGinn.

4. That failing receipt of any request for the relisting of this matter in relation to the question of costs pursuant to order 3 that the said Application in a Proceeding and the said Response do otherwise stand dismissed.

5. That order 8 of 9 April 2024 and order 10 of 30 May 2024 as to the documents referred to in the order 9 of 9 April 2024 to be filed no later than 90 days before trial be varied to the effect that such documents be filed on or by 4:00 pm 21 September 2024.

6. That order 6 of the order of 30 May 2024 be varied in that “Judge McGinn” substituted for “Judge Parker” in that order.

7. That the matter remain listed for trial hearing on 3 December 2024 such trial to take place before Judge McGinn.

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

AGLC Citation

Ogilvie & Farnam [2024] FedCFamC2F 793

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Garwood & Shipton (No 8)
[2024] FedCFamC1F 208 Para 11

…In Garwood & Shipton (No 8) [2024] FedCFamC1F 208 Tree J noted that as it was not in dispute before him that the test contains the word “might” as opposed to “would” as being the words contained in Kallinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 (at 582 [76]) and in Mumbin v Northern Territory of Australia (No…
Venter & Venter (No 6)
[2024] FedCFamC1F 94 Para 12

…erence arising in the discussion of Porter & Dyer as to “might” has been described as “misapprehension” in Venter & Venter (No 6) [2024] FedCFamC1F 94 (Carew J, at [63-68]).…
Porter v Dyer
[2022] FCAFC 116

…66 Otta International Pty Ltd v Asia Pacific Carbon Pte Ltd [2015] NSWSC 1818 Pickard and Brown- Jones [2014] FCWA 12 Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 Scallan v Scallan [2001] NSWSC 1078 Sellers & Burns & Anor [2019] FamCAFC 113; Venter & Venter (No 6) [2024] FedCFamC1F 94 [2010] FMCA 777 (unrepor…
Mumbin v Northern Territory of Australia (No 1)
[2020] FCA 475 Para 11

…ds contained in Kallinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 (at 582 [76]) and in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (at [39]) as authoritatively adopted by the Full Court of the Federal Court of Australia in Porter v Dyer (2022) 402 ALR 659 (at [113]).…
Otta International Pty Ltd v Asia Pacific Carbon Pte Ltd
[2015] NSWSC 1818 Para 33

…In Otta International Pty Ltd v Asia Pacific Carbon Pte Ltd [2015] NSWSC 1818 the Court refused to give leave for a husband, who was not a legal practitioner, to represent his wife as well as himself in proceedings. In refusing that leave the Court said: In the present circumstances, irrespective of Mr Kane's relati…
Osferatu & Osferatu
[2015] FamCAFC 177 Para 8

…istration of justice, including the appearance of justice.[1] [1] Kallinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, [76]; Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666, [20]; Sellers & Burns & Anor [2019] FamCAFC 113; (2019) 59 Fam LR 593, [96-98]; Coppola v Nobile [2012] SASC 42, [22].…
PICKARD and BROWN-JONES
[2014] FCWA 12 Para 50

…cautiously, room still remains for matters of good practice and prudence to be allowed for and taken into account.[11] [11] Pickard and Brown- Jones [2014] FCWA 12 (Moncrieff J).…
Bosgard & Bosgard
[2013] FamCA 308 Para 26

…The applicant wife claims that the decision of the Family Court of Australia in Bosgard & Bosgard [2013] FamCA 308; (2014) 49 Fam LR 612 is not dissimilar to the present case.…
Coppola v Nobile
[2012] SASC 42 Para 8

…tu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666, [20]; Sellers & Burns & Anor [2019] FamCAFC 113; (2019) 59 Fam LR 593, [96-98]; Coppola v Nobile [2012] SASC 42, [22].…
Schueler & Anor v Smith & Ors
[2010] FMCA 777 Para 35

…Those propositions were subsequently accepted by the Federal Magistrates Court of Australia in [2010] FMCA 777.…
Temby & Anor v Chambers Investment Planners Pty Ltd & Anor
[2010] FMCA 783 Para 34

…In [2010] FMCA 783 the Court (Lucev FM) said at [19]: In relation to lawyers acting for relatives there is a comparative dearth of authority. One reason for this, at least in modern times, might be that the potential conflict of interest is so obvious that modern lawyers refer matters involving their relatives to…
Mitchell v Burrell
[2008] NSWSC 772 Para 1

…ner is disqualified, it could be acceptable for another partner in the same firm to continue to act[14]. [Citations omitted] [14] Mitchell v Burell [2008] NSWSC 772, [25].…
Bahonko v Nurses Board of Victoria (No 3)
[2007] FCA 491 Para 54

…against the partnership by which they were employed[12] or the rest of the firm of practitioners.[13] [12] Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 491, [17] – [19]; Scallan v Scallan [2001] NSWSC 1078. [13] Coppola v Nobile [2012] SASC 42, [35] – [44].…
Kallinicos v Hunt
[2006] NSWSC 723 Para 8

…tection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.[1] [1] Kallinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, [76]; Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666, [20]; Sellers & Burns & Anor [2019] FamCAFC 113; (2019) 59 Fam L…
Kallinicos v Hunt
[2005] NSWSC 1181 Para 8

…ity of the judicial process and the due administration of justice, including the appearance of justice.[1] [1] Kallinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, [76]; Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666, [20]; Sellers & Burns & Anor [2019] FamCAFC 113; (2019) 59 Fam LR 593, [96-98]; Cop…
Holborow v MacDonald Rudder
[2002] WASC 265 Para 23

…tlement of a party to engage a legal practitioner of their choice and the freedom of legal practitioners to act for clients.[3] [3] Holborow v Rudder [2002] WASC 265, [26]; cited with approval Sellers & Burns & Anor [2019] FamCAFC 113; (2019) 59 Fam LR 593, [98].…
Scallan v Scallan
[2001] NSWSC 1078 Para 54

…12] or the rest of the firm of practitioners.[13] [12] Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 491, [17] – [19]; Scallan v Scallan [2001] NSWSC 1078. [13] Coppola v Nobile [2012] SASC 42, [35] – [44].…
Garcia v National Australia Bank Ltd
[1998] HCA 48 Para 33

…matter for consideration. As the High Court has indicated in cases such as Yerkey v Jones (1939) 63 CLR 649 and the National Australia Bank v Garcia (1998) 194 CLR 395, it is common that the ties of love and affection between wife and husband may incline a spouse to act in a certain way by reason of the relationship…
Yerkey v Jones
[1939] HCA 3 Para 33

…of claim. However, in the present case, there is a further matter for consideration. As the High Court has indicated in cases such as Yerkey v Jones (1939) 63 CLR 649 and the National Australia Bank v Garcia (1998) 194 CLR 395, it is common that the ties of love and affection between wife and husband may incline a…
Sellers & Burns and Anor
[2019] FAMCAFC 113 Para 8

…llinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, [76]; Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666, [20]; Sellers & Burns & Anor [2019] FamCAFC 113; (2019) 59 Fam LR 593, [96-98]; Coppola v Nobile [2012] SASC 42, [22].…
[1940] AC 282
[1940] AC 282 Para 28

…t is a task which carries with it for the solicitor duties and responsibilities to the Court in which proceedings are conducted.[2] [2] Myers v Elman [1940] AC 282, 321-2 per Wright LJ; Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Part 6.1, R 1.04(3); Federal Circuit and Fam…

Legislation cited in this decision · 2

Federal Circuit and Family Court of Australia Act 2021 (Cth)
191 2 mentions (from Para 28)
Family Law Act 1975 (Cth)
1 mention

File number(s):	ADC 6132 of 2020
Judgment of:	JUDGE MCGINN
Date of judgment:	24 June 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitor’s overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – where the solicitor for the husband is the “intimate partner” of the husband – injunction granted
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Cases cited:	Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 Bosgard & Bosgard [2013] FamCA 308; (2014) 49 Fam LR 612 Coppola v Nobile [2012] SASC 42 Holborow v Rudder [2002] WASC 265 Kallinacos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Mitchell v Burell [2008] NSWSC 772 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Myers v Elman [1940] AC 282 Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666 Otta International Pty Ltd v Asia Pacific Carbon Pte Ltd [2015] NSWSC 1818 Pickard and Brown- Jones [2014] FCWA 12 Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 Scallan v Scallan [2001] NSWSC 1078 Sellers & Burns & Anor [2019] FamCAFC 113; Venter & Venter (No 6) [2024] FedCFamC1F 94 [2010] FMCA 777 (unreported) [2010] FMCA 783 (unreported)
Division:	Division 2 Family Law
Number of paragraphs:	127
Date of hearing:	17 June 2024
Counsel for the Applicant:	Mr V
Solicitor for the Applicant:	U Lawyers
Counsel for the Respondent:	Mr T
Solicitor for the Respondent:	Firm AB

ADC 6132 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS FARNAM Applicant
AND:	MR OGILVIE Respondent

ORDER MADE BY:	JUDGE MCGINN
DATE OF ORDER:	24 JUNE 2024