Vincenzo and Vincenzo - [2014] FamCA 46

FAMILY COURT OF AUSTRALIA

VINCENZO & VINCENZO

[2014] FamCA 46

FAMILY LAW – PRACTICE AND PROCEDURE – application by husband to have wife’s solicitor and barrister restrained from acting for the wife – application allowed in relation to the barrister – application dismissed in relation to the solicitor

Family Law Act 1975 (Cth)
Legal Professional Act 2004 (Vic)

Grieves & Tully [2011] FamCA 617

Volker and Anor & Dunwell and Anor [2013] FamCAFC 169
D & J Constructions (1987) 9 NSWLR 118
McMillan & McMillan [2000] FLC 93-048

APPLICANT:

Mr Vincenzo

RESPONDENT:

Ms Vincenzo

FILE NUMBER:

MLC

10204

2011

DATE DELIVERED:

7 February 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

15 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfield QC

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr G B Hevey

SOLICITOR FOR THE RESPONDENT:

Borchard & Moore

Orders

The wife, by herself, her servants and/or her agents be restrained by injunction from instructing or briefing, or in any manner matter engaging or taking advice from Mr Graeme Thompson of counsel in relation to these proceedings.
Otherwise the application in a case filed 16 December 2013 and response to an application filed 17 December 2013 are dismissed.
Should any party seek costs arising out of these orders, such application shall be made by written submission filed and served no later than 19 February 2014 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission is to have until 5 March 2014 to file and serve any response and such response being endorsed with the fact that it has been so served on the other party and on receipt of any such application for costs, it or they be determined in chambers.
Pursuant to Family Law Rule 1.14 the time to start an appeal in respect of this order is extended to forty two (42) days from the date of this order.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vincenzo & Vincenzo 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 10204 of 2011

Mr Vincenzo

Applicant

And

Ms Vincenzo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Vincenzo (“the wife”) is the applicant in the substantive proceedings for property and other orders in relation to her marriage to the husband, Mr Vincenzo (“the husband”). In this application in a case the husband is the applicant and the wife is the respondent.
The substantive proceedings were commenced by the wife in November 2011. The issues involve parenting and property and the parties have engaged in a number of interim hearings, some limited detail of which is contained…

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 Vincenzo and Vincenzo

Details

AGLC: Vincenzo and Vincenzo [2014] FamCA 46
Case: [2014] FamCA 46
Decision Date: 7 February 2014

CaseChat Overview and Summary

In the matter of *Vincenzo and Vincenzo*, Benjamin J of the Family Court of Australia considered an application by the husband seeking to restrain the wife from engaging a particular barrister, Mr Graeme Thompson, in relation to the proceedings. The husband also sought to dismiss the wife's application filed on 16 December 2013 and her response to an application filed on 17 December 2013.

The primary legal issue before the court was whether it possessed the power to grant an injunction restraining a party from engaging a specific legal representative. A secondary issue concerned the dismissal of the wife's applications.

Benjamin J determined that the court had the power to grant such an injunction, finding that it was necessary to prevent an abuse of process and to ensure the proper administration of justice. The judge reasoned that the continued engagement of Mr Thompson by the wife would be vexatious and oppressive, given his prior involvement in related matters and the potential for him to be a witness. The court dismissed the husband's application to dismiss the wife's substantive applications, finding no basis for such an order.

The court ordered that the wife, by herself, her servants and/or her agents, be restrained by injunction from instructing, briefing, engaging, or taking advice from Mr Graeme Thompson in relation to these proceedings. The husband's other applications were dismissed. The court also made orders regarding the time for seeking and responding to costs applications, and extended the time to appeal the order to forty-two days. Finally, the court certified that it was reasonable to engage senior counsel and counsel to attend the proceedings.

Orders

Orders of the court

1. The wife, by herself, her servants and/or her agents be restrained by injunction from instructing or briefing, or in any manner matter engaging or taking advice from Mr Graeme Thompson of counsel in relation to these proceedings.

2. Otherwise the application in a case filed 16 December 2013 and response to an application filed 17 December 2013 are dismissed.

3. Should any party seek costs arising out of these orders, such application shall be made by written submission filed and served no later than 19 February 2014 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission is to have until 5 March 2014 to file and serve any response and such response being endorsed with the fact that it has been so served on the other party and on receipt of any such application for costs, it or they be determined in chambers.

4. Pursuant to Family Law Rule 1.14 the time to start an appeal in respect of this order is extended to forty two (42) days from the date of this order.

IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

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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