…which was owed $3.6 million
In Charisteas [2022] FedCFamC1A 160 (7 October 2022), the Full Court (Alstergren CJ, McClelland DCJ & Aldridge J) heard a husband’s appeal from orders of the Family Court of Western Australia (FCWA).
The FCWA dismissed the husband’s application to restrain a firm and ‘Mr P’ from acting for the wife on the basis they were also acting for the wife’s litigation funder (AF).
The Full Court said (from [37]):
“The correct test … is that which is adumbrated by the Full Court of the Federal Court of Australia … in Porter v Dyer (2022) 402 ALR 659 who applied … the following statement of principle by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475:
39. The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:
(…)
(b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice …
(…)
[42] … The wife currently owes AF … [at] least $3.6 million and AF has an interest in ensuring that the adjustment of the parties’ property sought by the wife … is reflected as a transfer of property to the wife, rather than the settlement being structured on an alternative basis. Such an alternative would be to maximise non-property or cash benefits to the wife … which may be beyond the claim of creditors including AF. …
(…)
[52] The … primary judge erred in failing to have regard to the potential and actual conflict between the interests of Firm Y, Mr P and the wife … We are satisfied that, if the extent of that actual and potential conflict were identified to a fair-minded, reasonably informed member of the public, they would conclude that the proper administration of justice requires that the restraints sought by the husband against Firm Y and Mr P be established.”
The husband’s appeal was allowed and the wife was restrained from instructing the same lawyers who were acting for her litigation funder.
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
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