OP v TP & Anor (Conduct of Counsel)

The Full Court of the Family Court of Australia heard an appeal by the husband against residence, contact, and property orders made by the Chief Judge of the Family Court of Western Australia. The trial judge had ordered that the two children of the marriage reside with the wife, with a staged contact arrangement for the husband. Regarding property, the wife was awarded 37.5% of the total asset pool. The husband's primary attack was on the residence order, arguing it should have favoured him, and he based his appeal on the alleged flagrant incompetence and improper behaviour of his own counsel at trial, which he contended led to a miscarriage of justice. He also challenged the property order, arguing it should fall if the residence order was overturned and that the court had miscarried its discretion in the amount awarded.

The legal issues before the Full Court were whether, and in what circumstances, the incompetence or impropriety of counsel could provide a basis for setting aside a judgment, and whether the husband had demonstrated that the judgment should be set aside in the specific circumstances of this case. The Court also considered the husband's complaints regarding his counsel's failure to cross-examine or call certain evidence concerning the wife's earnings and earning capacity, and the failure to enforce a subpoena for a key witness.

The Court reasoned that allegations of counsel's impropriety, such as having lunch with opposing counsel or discussing trial length, did not, at their highest, give rise to an inference of collusion. Similarly, the decision not to call witnesses, even if previously considered favourable, could be a strategic choice by counsel to avoid confusing the judge or unnecessarily lengthening the trial, and did not automatically equate to incompetence. The Court noted that the husband's complaints about his counsel's conduct, when examined against the evidence and the trial judge's findings, did not establish a miscarriage of justice. The trial judge had largely accepted the expert's assessment, which favoured the wife as the resident parent, and had found the husband's credibility to be lacking. The Court concluded that the husband had not shown that the judgment should be set aside due to the conduct of his counsel.

The appeal was dismissed.