Quirk and Lake - [2016] FamCA 921

FAMILY COURT OF AUSTRALIA

QUIRK & LAKE

[2016] FamCA 921

FAMILY LAW – LEGAL PRACTITIONERS – Where the husband seeks an order that the wife’s solicitors be restrained from acting for her in the proceedings – Where the wife seeks, in the substantive proceedings, to set aside a Financial Agreement entered into between the parties – Where the husband seeks to cross-examine the principal of the firm acting for the wife – Where the husband’s application is dismissed.

Family Law Act 1975 (Cth)
Legal Profession Uniform Law (NSW), s 34

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, r 27

Naczek v Dowler [2011] FamCAFC 179

APPLICANT:

Ms Quirk

RESPONDENT:

Mr Lake

FILE NUMBER:

SYC

3702

2010

DATE DELIVERED:

2 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

31 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Steggall

SOLICITOR FOR THE APPLICANT:

B Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

IT IS ORDERED

That the Application in Case filed by the husband on 4 August 2016 be 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 Quirk & Lake 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: SYC 3702 of 2010

Ms Quirk

Applicant

And

Mr Lake

Respondent

REASONS FOR JUDGMENT

Ms Quirk (“the wife”) and Mr Lake (“the husband”) entered into a Financial Agreement (“the Agreement”) on 6 September 2010. In those proceedings, the wife was represented by B Lawyers (“the Solicitors”). Ms C (“Ms C”) of that firm acted for the wife under the general supervision of Mr D (“Mr D”) who was and is a partner of the firm.
On 12 November 2015, in the Federal Circuit Court, the wife raised her intention to bring proceedings to set aside the Agreement. On 1 March 2016, the solicitors for the wife gave notice to the solicitors for the husband that their application would be amended to include orders to set aside the Agreement. On 13 April 2016, the wife filed an application to set aside the agreement.
In an affidavit sworn 6 July 2016, the husband deposed:
In circumstances where [the wife’s] Solicitors signed the Certificate of Independent Legal Advice confirming that she provided [the wife] with independent legal advice in relation to the Agreement … [the wife] should be restrained from further instructing [the solicitors] as I intend to call [the Solicitors] to give evidence at the final hearing in these proceedings.
No…

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 Quirk and Lake

Details

AGLC: Quirk and Lake [2016] FamCA 921
Case: [2016] FamCA 921
Decision Date: 2 November 2016

CaseChat Overview and Summary

In the matter of *Quirk and Lake*, heard before Rees J, the husband sought to bring an application concerning property settlement. The wife opposed this application.

The central legal issue before the court was whether the husband's application, filed significantly out of time, should be permitted to proceed. This required the court to consider the relevant legislative provisions governing the time limits for property settlement applications and the circumstances under which an extension of time might be granted.

Rees J dismissed the husband's application, finding that he had not satisfied the necessary threshold to justify an extension of time. The court applied the principles governing applications for leave to commence proceedings out of time, which typically involve a consideration of the applicant's reasons for the delay, the merits of the proposed application, and the prejudice to the respondent. In this instance, the husband's explanation for the delay was deemed insufficient to warrant the court exercising its discretion to permit the late filing.

The application filed by the husband on 4 August 2016 was accordingly dismissed.

Orders

Orders of the court

IT IS ORDERED

That the Application in Case filed by the husband on 4 August 2016 be dismissed.

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

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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