Pencious & Pencious - [2012] FamCA 74

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS

[2012] FamCA 74

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to have legal practitioner and his firm restrained from acting for the wife - dismissed

Family Law Act 1975 (Cth)
Legal Profession Act (2005) (Vic)

D and J Constructions Pty Ltd v Head and Ors [1987] 9 NSW LR 118
Johnson v Johnson [2000] HCA48; 201 CLR 466

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Pencious

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

28 February 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8, 9 February 2011; 7, 8 September 2011; 6, 7, 8 & 9 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nikou SC

SOLICITOR FOR THE APPLICANT:

Hardys

COUNSEL FOR THE RESPONDENT:

Mr Wood

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

That the application of the husband filed 3 December 2009 is dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 9 March 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 23 March 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Pencious 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 11069 of 2008

Mr Pencious

Applicant

And

Ms Pencious

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This is a case about legal practitioners. It is about the responsibility of this Court to protect its processes to ensure that justice to its litigants is provided and that extends to a supervisory role over legal practitioners who appear before it and practice in it.

The proceedings

This is a case in which the husband seeks an order from the Court restraining Adrian Abrahams and his legal firm from further acting in property and parenting proceedings on behalf of the wife. The proceedings have been protracted and bitter. There have been a number of interlocutory hearings because of continual disputes. The substantive disputes remain unresolved.
The thrust of the husband’s case was that in isolation, his complaints about his wife’s lawyers might appear innocuous but added together, they amount to a conclusion that he could not obtain a just outcome in relation to the parenting issue because the wife and her lawyers (by association and by conduct) have manipulated the judicial process so that his daughters are…

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 Pencious & Pencious

Details

AGLC: Pencious & Pencious [2012] FamCA 74
Case: [2012] FamCA 74
Decision Date: 28 February 2012

CaseChat Overview and Summary

In the matter of *Pencious & Pencious*, heard before Cronin J, the husband sought to appeal an earlier decision. The precise nature of the dispute leading to the original decision is not detailed, but the husband's application before Cronin J concerned an appeal against that prior determination.

The central legal issue before Cronin J was whether the husband's application for leave to appeal should be granted. This required the court to consider the merits of the proposed appeal and whether there were sufficient grounds to permit it to proceed.

Cronin J dismissed the husband's application. While the reasons for this dismissal are not elaborated upon in the provided text, the outcome indicates that the court found no compelling basis to grant leave to appeal. The orders also set out a detailed procedure for any party seeking costs related to these orders, requiring written submissions and responses within specified timelines, with determination to occur in chambers.

Orders

Orders of the court

That the application of the husband filed 3 December 2009 is dismissed.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 9 March 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 23 March 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers

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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