Romano and June (No 3) - [2011] FamCA 743

FAMILY COURT OF AUSTRALIA

ROMANO & JUNE (NO. 3)

[2011] FamCA 743

FAMILY LAW – EVIDENCE – Telephone and audiovisual communication – Application by the husband for witnesses whose evidence he intends to rely upon to be permitted to give evidence by electronic audiovisual communication from London and Perth – Where the wife objects to some witnesses – refusal of leave in respect of those witnesses.

FAMILY LAW – EVIDENCE – Expert evidence – Application by husband for leave to adduce evidence as to evaluation of chattels from three expert witnesses who are not single expert witnesses – Order that leave be granted.

FAMILY LAW – LEGAL PRACTITIONERS – Application by Husband to restrain the wife’s solicitor and the wife’s solicitor’s firm or agents from continuing to represent the wife in the proceedings – Whether the solicitor is in a position of conflict between his duty to the Court and his own interests – Where the husband argues that the wife’s solicitor has a personal and financial interest in the outcome of the litigation – Where the wife’s solicitor argues that the husband’s evidence is manifestly inadequate to satisfy the Court – Court not satisfied that the wife’s solicitor should be restrained.

Family Law Rules 2004 r 16.05, r 15.51, r 19.04
Foreign Evidence Act 1994 s 7, s 8

Australian Securities and Investment Commission v Rich & Ors (2004) NSWSC 467

Clyne v The New South Wales Bar Association (1960) 104 CLR 186

Goodall v Nationwide News Pty Ltd (2007) FMCA 218
Joyce v Sunland Waterfront (BVI) Limited [2011] FCAFC 95
K v S & Anor (2001) 27 FamLR 498

Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Naczek & Dowler (2011) FamCAFC 179
Schokker v Commissioner of Taxation (2000) 106 FCR 134
State of Queensland v J. L. Holdings Pty Ltd (1997) 189 CLR 146
Versace v Monte [2001] FCA 1454

APPLICANT:

Ms Romano

RESPONDENT:

Mr June

FILE NUMBER:

BRC

3679

2010

DATE DELIVERED:

23 September 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

21 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Hirst & Co Family Solicitors

COUNSEL FOR THE RESPONDENT:

Mr S J Williams

SOLICITOR FOR THE RESPONDENT:

Bowen Buchbinder Vilensky

COUNSEL FOR THE WIFE’S

SOLICITOR:

Mr Amerena and
Ms FitzGerald

Orders

That pursuant to rule 16.05 of the Family Law Rules 2004 and sections 7 and 8 of the Foreign Evidence Act 1994, leave is granted to the husband to adduce evidence by electronic audiovisual communication at the trial in these proceedings commencing 3 October, 2011:
(a)from the Mercure Hotel located at 10 Irwin Street, Perth, Western Australia for the following witnesses:
(i)Ms SR;
(ii)Mr TH;
(iii)Mr PW;
(iv)Mr YS;
(v)Mr GK;
(vi)Mr VB
(vii)Ms NE; and
(viii)Ms BZ
(b)from the International Dispute Resolution Centre located at 70 Fleet Street, London, England:
(i)Mr HT;
(ii)Ms RT;
(iii)Mr RV;
(iv)Mr WB; and
(v)Mr VQ.
That all other witnesses whose evidence is…

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 Romano and June (No 3)

Details

AGLC: Romano and June (No 3) [2011] FamCA 743
Case: [2011] FamCA 743
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Romano & June (No. 3)*, considered several interim applications made by the husband and wife in complex property division proceedings. The applications concerned the adducing of evidence by electronic communication, the admission of expert valuation evidence from non-single expert witnesses, and a significant application by the husband to restrain the wife's solicitor and their firm from continuing to represent the wife. The proceedings were characterised by high conflict between the parties, which had also manifested in the conduct of their legal representatives.

The court was required to determine whether to grant leave for certain witnesses to give evidence via audiovisual communication from London and Perth, and for other witnesses to give evidence via telephone from New Zealand, as opposed to attending in person. It also had to decide whether to permit both parties to adduce expert valuation evidence from multiple expert witnesses who were not acting as single joint experts. A central issue was the husband's application to disqualify the wife's solicitor, based on allegations of a conflict of interest arising from the solicitor's personal and financial involvement in funding the wife's legal fees through a personal loan facility.

In relation to the electronic communication of evidence, the court applied Family Law Rules 2004 r 16.05 and sections 7 and 8 of the *Foreign Evidence Act 1994*, granting leave for specified witnesses to give evidence remotely, with costs to be borne initially by the party seeking the remote attendance. Regarding expert evidence, the court applied r 15.51 of the Family Law Rules 2004, granting leave for both parties to adduce evidence from multiple expert witnesses on the valuation of chattels. On the application to restrain the wife's solicitor, the court applied its inherent jurisdiction, referencing *Naczek & Dowler* (2011) FamCAFC 179, and the test of whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires the practitioner to be prevented from acting. The court considered the exceptional nature of this jurisdiction, the public interest in a litigant not being deprived of their chosen lawyer without due cause, and the timing of the application.

The court was not satisfied that the husband had met the threshold for restraining the wife's solicitor. While acknowledging the solicitor's personal financial involvement in securing a loan facility to fund the wife's legal costs, the court found that the evidence did not demonstrate a conflict between the solicitor's duty to the court and his own interests that would imperil the independent administration of justice. Consequently, the application to restrain the solicitor was dismissed. The court made orders granting leave for various witnesses to give evidence remotely, allowing the adduction of expert valuation evidence from multiple experts for both parties, and requiring further disclosure from the husband. All other outstanding interim applications were dismissed.

Orders