HUSBAND WANTS TO RESTRAIN THE WIFE’S SOLICITOR FROM REPRESENTING HER
Childers & Childers [2021] FCCA 581 (17 March 2021)
This is an application to restrain the wife’s solicitor from continuing to act for the wife in the present property proceeding since the paralegal, formerly employed by the husband’s legal firm, has moved to the wife’s legal firm.
Facts:
These are property settlement proceedings between Ms Childers (“the wife”) and Mr Childers (“the husband”). The proceedings have not progressed very far because an issue has arisen concerning the wife’s solicitors. In particular, the husband has filed an application in which he seeks that That C Law Firm be restrained from continuing to act for the Applicant wife in the property settlement proceedings. The wife opposes relief sought by the husband.
By way of brief background, the current controversy has arisen in relation to a particular paralegal (whom I will not name but will refer to as “P”). For a period of time P was working for the husband’s current legal representatives, B Law Firm Lawyers, but has since ceased that employment and take up work with the wife’s legal representatives, C Law Firm.
The husband had numerous dealings with P in the course of her previous employment at B Law Firm Lawyers. Those dealings specifically related to the present family law proceedings, or perhaps to be more precise, to the family law issues between these parties which are now the subject of the current proceedings.
The husband gives evidence of various dealings and communications that he had with P, and he contends on that basis that, given that P has now commenced employment with C Law Firm, that the wife’s law firm should no longer be permitted to continue to act for the wife in the proceedings.
Issue: Should the wife’s solicitor be restrained from acting on behalf of her?
Law:
- The Federal Circuit Court is a court of law and a court of equity: section 8(3) of the Federal Circuit Court of Australia Act. The Federal Circuit Court does have an inherent power to restrain a solicitor from acting for a party if the interests of justice so require.
Analysis:
The recognition that the integrity of the legal process must be preserved. In my view, a reasonable observer, in this case, would feel considerable disquiet at the wife’s solicitors continuing to represent her in these proceedings, given the previous connection of P with the law firm who represents the husband, and particularly given P’s direct involvement in the conduct of the husband’s proceedings while in the employ of that law firm.
It may well be a different case if P was involved in some other aspect of the husband’s legal affairs, or if P was simply employed by B Law Firm Lawyers previously but had not had any involvement in the family law proceedings at all. But this is not such a case. P is “front and center” in terms of Ms J’s conduct of the proceedings. This is not saying that there may not havebeen other people who assisted Ms J, but P’s role was a role that, in my view, was a substantive one.
Conclusion: The Court orders that C Law Firm be restrained from continuing to act for the Applicant Wife in these proceedings.
