WORTH & WORTH - [2016] FamCA 4

FAMILY COURT OF AUSTRALIA

WORTH & WORTH

[2016] FamCA 4

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – Where the father seeks an order that the mother be restrained from continuing to instruct her solicitor and her solicitor’s firm to represent her in the proceedings – application dismissed.

FAMILY LAW – COSTS – Circumstances justifying order – Where the father’s application to restrain the mother’s lawyer from acting was wholly unsuccessful.

FAMILY LAW – COSTS – Circumstances justifying order – Where the mother made an application for a stay of an order and that application was dismissed – Where the mother made an application for review but withdrew the application before it was heard – Where the costs of those applications were reserved to this hearing – Where the father seeks costs on an indemnity basis – Circumstances do not justify a costs order on an indemnity basis.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Kohan & Kohan (1993) FLC 92-340
Millhouse & Mullens [2015] FamCA 754
Millhouse & Mullens (No 2) [2015] FamCA 1015
Naczek & Dowler [2011] FamCAFC 179
Romano & June [2013] FamCA 901

APPLICANT:

Ms Worth

RESPONDENT:

Mr Worth

FILE NUMBER:

BRC

1771

2014

DATE DELIVERED:

14 January 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

12 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hanlon

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Laws

David R.L. Laws Solicitor

Orders

That the father’s Application in a Case filed 26 October 2016 seeking to restrain the mother’s solicitor from continuing to act for her in these proceedings is dismissed.
That the father pay the mother’s costs of and incidental to his Application in a Case seeking to restrain the mother’s solicitor from continuing to act for her in these proceedings that was dismissed, such costs to be as agreed or as assessed on a party and party basis in accordance with the Family Law Rules 2004 (Cth).
That any Application in a Case filed by the father in which he seeks orders against the mother in respect of the issue of disclosure by her of the identity of the K Contact Centre staff member with whom she asserts she spoke (by reference to the factual assertion contained in paragraph 3 of her affidavit filed in these proceedings on 31 August, 2015) be listed before Justice Forrest for hearing, in so far as that is practicable.
That the mother pay the father’s costs of and incidental to her Application in a Case seeking a stay that was filed on 31 August 2015 and dismissed on 15 September 2015 and also the father’s costs of and incidental to her Application in a Case filed 31 August 2015 seeking a review of the Principal Registrar’s decision of 20 August 2015 that she discontinued on 6 November 2015 and also the father’s costs of and…

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 WORTH & WORTH

Details

AGLC: WORTH & WORTH [2015] FamCA 4
Case: [2016] FamCA 4
Decision Date: 14 January 2016

CaseChat Overview and Summary

In the matter of *Worth & Worth*, Forrest J of the Family Court of Australia considered an application by the father seeking to restrain the mother from continuing to instruct her solicitor and the solicitor's firm in the proceedings. The father's application was dismissed.

The primary legal issue before the court was whether a conflict of interest existed that would warrant restraining the mother's legal representation. Ancillary to this, the court also considered applications for costs, including the father's request for indemnity costs.

Forrest J dismissed the father's application to restrain the mother's solicitor, finding no grounds to uphold the claim of conflict of interest. In relation to costs, the court ordered that the father pay the mother's costs for his unsuccessful application to restrain her solicitor on a party and party basis. The court also ordered that the mother pay the father's costs for her previously dismissed application for a stay and her withdrawn application for review, as well as the costs referable to prosecuting the costs application at the hearing. The court declined to order indemnity costs, finding that the circumstances did not justify such an order.

Orders

Orders of the court

That the father’s Application in a Case filed 26 October 2016 seeking to restrain the mother’s solicitor from continuing to act for her in these proceedings is dismissed.

That the father pay the mother’s costs of and incidental to his Application in a Case seeking to restrain the mother’s solicitor from continuing to act for her in these proceedings that was dismissed, such costs to be as agreed or as assessed on a party and party basis in accordance with the Family Law Rules 2004 (Cth).

That any Application in a Case filed by the father in which he seeks orders against the mother in respect of the issue of disclosure by her of the identity of the K Contact Centre staff member with whom she asserts she spoke (by reference to the factual assertion contained in paragraph 3 of her affidavit filed in these proceedings on 31 August, 2015) be listed before Justice Forrest for hearing, in so far as that is practicable.

That the mother pay the father’s costs of and incidental to her Application in a Case seeking a stay that was filed on 31 August 2015 and dismissed on 15 September 2015 and also the father’s costs of and incidental to her Application in a Case filed 31 August 2015 seeking a review of the Principal Registrar’s decision of 20 August 2015 that she discontinued on 6 November 2015 and also the father’s costs of and incidental to the hearing before me on 12 January 2016 in so far as they were referable to prosecuting this costs application, such costs to be as agreed or as assessed on a party and party basis in accordance with the Family Law Rules 2004 (Cth).

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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