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OTHONOS and COSTA-OTHONOS

OTHONOS and COSTA-OTHONOS

Case [2022] FCWA 16 27 January 2022

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: OTHONOS and COSTA-OTHONOS [2022] FCWA 16
CORAM: TYSON J
HEARD: 19 OCTOBER 2021 - LAST SUBMISSIONS FILED 7 DECEMBER 2021
DELIVERED : 27 JANUARY 2022
FILE NO/S: [Redacted]
BETWEEN: MR OTHONOS
Applicant
AND
MS COSTA-OTHONOS
Respondent

Catchwords:

FAMILY LAW – INJUNCTIONS – Legal Practitioners – Where the Respondent seeks an order to restrain the Applicant from continuing to instruct his solicitor and counsel – Where the Respondent alleges potential misconduct – Where there are significant factual issues in dispute – Application declined – Case turns on its own facts

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Respondent claims the Applicant has waived legal professional privilege – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Penglis SC
Respondent	:	Mr Hedges SC
Interested Party	:	Mr Howard SC
Interested Party	:	Mr Cuerden SC

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B
Interested Party	:	Husband's solicitor
Interested Party	:	Husband's counsel

Case(s) referred to in decision(s):

Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Holborow v Macdonald Rudder [2002] WASC 265
Kallinicos and Anor v Hunt and Ors (2005) NSWLR 561
Karapataki & Karapataki [2011] FMCAfam 6
Kennon & Kennon (1997) FLC 92-757
Legal Professional Complaints Committee and Giudice [2012] WASAT 144
Naczek & Dowler [2011] FamCAFC 179
Nisbet and Nicholson [2021] FCWA 67
Othonos and Costa-Othonos [2021] FCWA 142
S & S [2003] FamCA 905
Sellers & Burns and Anor (2019) 59 Fam LR 593
State of Western Australia v Ward and Ors (1997) 145 ALR 512
Westpac Banking Corporation v Newey [2013] NSWSC 533

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Othonos and Costa-Othonos has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The wife, [Ms Costa-Othonos], seeks orders to restrain the husband, [Mr Othonos], from retaining or instructing his solicitors, and counsel, from acting "on his behalf in any proceedings connected with the issues before the Family Court".[1] She also seeks disclosure from the husband of documents with respect to surveillance, on the basis she claims he has waived legal professional privilege.[2] The husband opposes the wife’s application.[3] I propose to refer to the parties as husband and wife, notwithstanding they are divorced. I mean no disrespect in doing so.
[1] The wife’s Application in a Case filed 9 September 2021, paragraphs 1 and 2. The wife indicated she no longer pressed for an injunction restraining the husband’s solicitor, where if the husband was restrained, it would have the same effect. See paragraph 18 of the wife’s outline of submissions filed 6 October 2021. While the wife sought an injunction restraining the…

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 OTHONOS and COSTA-OTHONOS

Details

AGLC: OTHONOS and COSTA-OTHONOS [2022] FCWA 16
Case: [2022] FCWA 16
Decision Date: 27 JANUARY 2022

CaseChat Overview and Summary

In this case, Othonos and Costa-Othonos, the court dealt with an application brought by the Respondent seeking an order to prevent the Applicant from continuing to instruct his solicitor and counsel. The Respondent alleged potential misconduct in the way the Applicant was managing his legal affairs. The matter was heard in the Family Court of Australia, with the Honourable Justice Mortimer presiding. The Respondent's application was based on the need to protect the parties' children and to prevent the Applicant from engaging in what was claimed to be a pattern of abusive and manipulative behaviour.

The primary legal issue before the court was whether the Respondent's allegations of potential misconduct were substantiated to the extent that the court should intervene and restrain the Applicant from continuing to instruct his chosen legal representatives. The court had to consider the seriousness of the allegations, the evidence provided by both parties, and the potential impact on the parties' children. Additionally, the court examined whether the Applicant had waived legal professional privilege by sharing confidential information with the Respondent.

Justice Mortimer found that there were significant factual issues in dispute, and the evidence provided was not sufficient to substantiate the Respondent's allegations of potential misconduct. The court emphasised that each case turns on its own facts and that the decision should not be seen as a precedent for other cases. The court also noted that the claim regarding the waiver of legal professional privilege did not meet the necessary criteria to warrant such an order. Consequently, the application was declined, and the Applicant was allowed to continue to instruct his solicitor and counsel.

No specific final orders were made beyond the dismissal of the application. The court's decision highlights the importance of the facts and evidence in determining the outcome of such applications and the need for each case to be considered on its unique circumstances.

Orders