Ouch! An Application to restrain a legal practitioner / law firm from acting in a family law dispute
As a lawyer or legal practice, being faced with an Application to restrain you from acting for a client in a family law dispute is daunting. Especially when there is a potential that you could lose your fees, costs and outlays. But you should remember, they are not always brought with the best of intention and there may not even be grounds.
That’s why you should always be cautious, know the law and be prepared. But remember, “he who acts for himself has a fool for a client”.
Why not trust us to help you… we have the experience and the history and know exactly how to protect you and/or your practice.
Australian Solicitors Conduct Rules
Rule 10 of the Australian Solicitors Conduct Rules 2012 provides:
10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. 10.2 A solicitor or law practice who or which is in possession of confidential information of a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS: 10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or 10.2.2 an effective information barrier has been established.
There exists no absolute rule that a legal practitioner who has acted for a client in a matter must not act against that client in the same or any other matter. Despite this, there are three possible grounds for restraining a legal practitioner from acting for a party to litigation:
(a) First, the inherent jurisdiction or implied power of the court to supervise and control the conduct of legal practitioners as officers of the court (in order to safeguard the due administration of justice (“Ground One – Implied Powers and Inherent Jurisdiction”);
(b) Second, a breach of a supposed fiduciary duty of loyalty not to act against a client, or against a former client, in the same matter or a closely related matter (“Ground Two – Breach of Duty of Loyalty”); and
(c) Third, the danger of misuse of confidential information (“Ground Three – Breach of Confidence”).
The three bases have evolved for restraining a lawyer from acting for a client. Each basis is different, and has its own principles guiding its operation, although they can in some circumstances overlap.
Such an Application to restrain a legal practitioner from acting for a party to a proceeding must be made without delay, and the failure thereto to take the point at an early stage can cast doubt on the validity of any subsequent complaint or action to retrain, with this said to be a most important consideration (“Delay”).
Ground One – Implied Powers and Inherent Jurisdiction
In Luthra v Betterley Johnson J described ‘inherent jurisdiction’ as being inaccurate. He suggested this basis for restraint is part of the Family Court’s implied powers which flow from the establishment of the court as ‘a superior court of record’ pursuant to s 21(2) of the Family Law Act 1975 (Cth). Johnson J rejected the term “inherent jurisdiction” because the High Court of Australia had rejected the concept in DJL v The Central Authority where His Honour in that case stated:
… the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said as follows (at 240-241): The Family Court is … not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their ‘inherent jurisdiction’. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court. Kirby J said as follows at page 268: … I agree with the joint reasons that it is desirable, in relation to courts created by statute, that the expression “inherent powers” should not be used.
This ground is regarded as exceptional and must be exercised with significant caution and “due weight” must be applied to the public interest when there is deprivation to a litigant being deprived of their lawyer of choice without “good reason”.
In State of Western Australia v Ward and Ors, the Full Court of the Federal Court said:
... the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information, and a real risk of lack of objectivity and of conflict of interest and duty... The present case is only another example of situations in which the “integrity of the judicial process”, the “interests of justice” and the “need to preserve confidence in the judicial system”, to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is “an important value”. ...it is a serious matter to prevent a party from retaining its chosen lawyer…
In Grattan v Grattan (No 3) Cronin J discussed when this ground will be exercised. His Honour stated:
The power of the Court will be exercised where a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting for a client (see Spincode Pty v Look Software  VSCA and Grimwade v Meagher  1 VR 446). The test involving the fictitional member of the public is an objective test based on what the general public could expect of the administration of justice (op cit Grimwade v Meagher). Whilst litigants should not be deprived of their choice of representation without good cause and the power of the Court should be exercised very cautiously, the public’s interest in the administration of justice must override that right of legal representation. It is not just the administration of justice but also the public’s confidence in the legal profession and if that is seen to be undermined the court should intervene.
The applicable test in relation to this ground is:
“whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting – in the interests of the protection of the integrity of the judicial process and the due administration of justice (including the appearance of justice)"
The jurisdiction or implied incidental power of this ground is usually invoked in circumstances where there is potential that a legal practitioner may become a witness, and where the subject matter of litigation involves questions relating to the legal practitioner's conduct.
In Holborow v Macdonald Rudder and Bowen v Stott it was held that it can be appropriate to invoke the jurisdiction or power where the practitioner might feel impelled to justify or defend his or her conduct in representing a client, or where the legal practitioner's credibility could be at stake. Such cases, however, relate to a practitioner being likely to imperil the discharge of duties to a Court.
Another limb of this ground includes the misuse of information which does not fall within the global ambit of “confidential information”. That is, where the legal practitioner has learnt a great deal about a client’s personality, weaknesses, or strengths, honesty, dishonesty, fears and reactions and their approach to litigation (referred to as the “Getting to Know You Factors”).
The Getting to Know You Factors are said to be a powerful weapon putting a practitioner, or a duly appointed counsel, in a position of “unfair superiority”. Such matters usually involve a family solicitor or other closely related situation. It relates generally to built up knowledge over time against a party to a proceeding of the kind that has or could be consciously or unconsciously drawn upon.
The Getting to Know You Factors must be seen in the broader context of the inherent jurisdiction or implied power of this ground for the Court to supervise and control a practitioner as an officer of the Court. Heerey J said in Mintel International Group Limited v Mintel (Australia) Pty Ltd as relied on in Karapataki & Karapataki:
Insofar as reliance is placed on the "getting to know you" principle, a moment's consideration of the way that litigation is conducted in Australia shows that this cannot be accepted too literally, especially in relation to counsel. There are many bodies such as Commonwealth and State government entities, banks, insurers, media companies and many others which are constantly engaged in litigation. Counsel retained to act on behalf of such bodies inevitably acquire information, not confidential information in the strict sense, but experience as to the corporate culture of the clients, their internal policies, the way they deal with litigation, tactics, the personalities of important decision-makers and so forth. I do not accept that general experience of that kind would impose what presumably on the respondent's argument would be lifetime restraints on counsel from acting against such a body. Indeed it is a feature of an independent Bar that counsel might appear one day on behalf of such a body and the next day against it. While perhaps strange to observers from countries where the legal profession is organised differently, this freedom enhances the independence of counsel and their capacity to give objective and sometimes unwelcome advice. The cab rank rule works both ways. The driver is obliged to accept the fare, but the fare does not buy the service of the driver beyond the stipulated journey.
Ground Two – Breach of Duty of Loyalty
This ground relates to the duty of loyalty owed by a legal practitioner to their client. Such duty is said to not survive the termination of the retainer. In Ismail-Zai v The State of Western Australia Steytler J expressed this succinctly:
23. In my opinion, the weight of authority currently supports the proposition that the duty of loyalty does not survive the termination of the retainer. Moreover, some of the cases which support the existence of a continuing duty of loyalty seem ... to draw no clear distinction between a fiduciary obligation of that kind, on the one hand, and the court's inherent supervisory jurisdiction to protect the integrity of the judicial process, on the other. ... 24. In any event, ... there may be little distinction, for any practical purpose, between the question whether there is a breach of the continuing duty of loyalty, on the one hand, and the question is whether there is a real risk of a breach of confidence and whether there is or will be other impropriety of a kind that is likely to undermine the integrity of the judicial process and the due administration of justice (which comprehends the appearance of justice), on the other hand. ... I find it difficult to envisage circumstances in which a lawyer who acts in the same or a closely related matter against a former client will neither be in a position in which there is a real risk of a breach of duty of confidence nor be acting in such a way as to undermine the integrity of the judicial process or the due administration of justice.
Walters FM in Karapataki & Karapataki accepted the above analysis and concluded that this ground is, in essence, a restatement of Ground One and Ground Three. This was:
... because of the frequent recourse to the term "duty of loyalty" ... it is necessary to emphasise that that eloquent, but elastic, term is not itself precise. The measure of the obligation upon the former (legal practitioner) should not be deduced from that description alone but, rather, from an examination of the principles on which courts have acted to regulate or restrict actual or anticipated conduct of former legal advisers.
Ground Three – Breach of Confidence
This ground relates to confidential information and is the most common ground used to restrain a legal practitioner from acting in family law proceedings.
This ground was summarised by O’Ryan J in Pond & Thurga (No 2) as follows:
Prior to (McMillan) it was uncertain whether a narrow test of actual prejudice (arising from the possible misuse of confidential information) or the broader test of theoretical risk of prejudice was to be applied. ... The Full Court ultimately adopted the broad approach in Mills v Day Dawn Block Gold Mining Company Ltd and Thevanaz of a theoretical risk of prejudice rather than proof of actual prejudice. The Full Court found that the narrow or English approach which requires ‘real mischief or prejudice’ to follow in order to justify court intervention (an approach stemming from Rakusen v Ellis, Munday & Clarke) was inappropriate for the family law jurisdiction. The Full Court ... cited with approval the summary of the law provided by Lindenmayer J in Stewart (unreported, 17 April 1997): All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings. … Importantly, the adoption of the stricter approach in the family law jurisdiction was borne out of cases concerning practitioners that had acted for both husband and wife and reasons specific to this factual situation. In these cases the reasons for adopting this test have been based on the sensitive nature of the jurisdiction and the in-depth factual inquiries that the court was often required to make into parties’ financial history, conduct and contributions. ...
Walters FM in Karapataki & Karapataki concluded that the test to be applied to this ground is:
1. The party seeking the restraint ("the complainant") must: i. raise a prima facie case that he or she has provided confidential information to the legal practitioner; and ii. demonstrate that there at least a theoretical possibility that the confidential information could be used to the advantage of the other party, or, alternatively, to the disadvantage of the complainant. 2. In order to meet the two requirements in (a) above, the complainant need do no more than depose to the fact that he or she – i. has conveyed confidential information to the legal practitioner; and ii.believes, not unreasonably, that the confidential information may be used against him or her, or to his or her disadvantage, in the current proceedings.
Despite this above case, in Osferatu v Osferatu, the Full Court of the Family Court set out three further considerations in cases involving breach of confidentiality:
(a) first, whether a firm is in possession of information which is confidential to the former client (the burden is on the Applicant who has made the Application); and
(b) second, whether that information is or may be relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client (the burden is on the Applicant who has made the Application); and
(c) third, whether there is any risk that the information will come into the possession of those persons in the firm working for the other party (the burden shifts to the firm proposing to act or is acting for the Respondent);
Osferatu & Osferatu is the most recent case in respect of the approach to be taken in respect of breach of confidence. Prior to this case, the common law suggested that the courts would take a more lenient approach in family law matters than in commercial law matters when asked to restrain lawyers from acting. However, in Osferatu & Osferatu the Full Court referred to the prior authority McMillan & McMillan and it was said: 
‘to the extent that what we have said may be seen to represent a departure from McMillan (which we do not necessarily accept), it is to accord with the more recent authority and provide a clearer test’.
Before Osferatu & Osferatu, the cases followed the decision of Thevenaz. In that case, Frederico J took the view that a restraint was justified even where the risk that confidentiality may be breached was more ‘theoretical’ than practical. Subsequently, McMillan & McMillan confirmed the ‘theoretical risk’ approach (as also applied in Karapataki & Karapataki) and held that the aggrieved party only had to show:
(a) First, that a party had conveyed confidential information to the lawyer; and
(b) Second, that the party believed the information might be used, not unreasonably, against the party or at least to their disadvantage.
The level of risk that a party needs to show was then reconsidered by the Full Court in Osferatu & Osferatu, where the phrase ‘theoretical risk’ was found to be ‘unhelpful’. The court has now clarified the test which is to be as follows:
The consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful. To the extent that what we have said may be seen to be a departure from McMillan (which we do not necessarily accept), it is to accord with more recent authority and provides a clearer test.
Osferatu & Osferatu, the Full Court held:
… for evidence to be persuasive and cogent, she should have identified the nature of the information received or likely to have been received… that was now, or could now be, relevant to the current proceedings. She did not do so. It is not sufficient to say that, as family proceedings cover a range of matters, any information at all received… could have been relevant. This was especially so given that three years had passed since he could have received any information, and both sets of substantive proceedings (parenting and property) had resolved.
Osferatu & Osferatu, referred to all prior leading cases and it was said:
‘… nothing appears in Stewart, Theranaz or McMillan that obviates the need for an applicant seeking such relief from discharging his burden of proof by adducing cogent and persuasive evidence’
The test set out by the High Court in Carindale Country Club Estate Pty Ltd v Astill (Carindale) is that the Court ought to intervene “… unless is it satisfied there is no risk of disclosure. The risk must be a real one and not merely fanciful or theoretical”. Hence the decision of Osferatu & Osferatu, now brings the family law approach is now line with the approach adopted in Carindale.
In considering an application of the kind restraining a lawyer, the Court is said to balance the following consideration in respect of this ground:
(a) the nature of the information against a consideration of the person to whom the information was given;
(b) when the information was given;
(c) the relevance of that information to the current proceedings;
(d) the risk of disclosure;
(e) any proposed protective measures required before any determination can be made; and
(f) whether any relief is required and if so the appropriate relief.
Despite any ground relied upon to restrain a legal practitioner from acting for a party to litigation, delay, and especially unreasonable or unexplained delay, is fatal to the application and was a most important consideration. The leading authority is McGillivray v Mitchell, where the Full Court said:
... if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity. If he or she does not do so, then he or she is possessed of a weapon which can later be used as a delaying tactic at some point in the proceedings convenient to his or her position. Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible misuse of such confidential information.
McGillivray v Mitchell, is a classic illustration which can be used by almost precise analogy to the present matter for the following reasons:
(a) delay is relevant to the discretion to restrain a practitioner;
(b) the husband, in that case, failed to make any protest to the other side about the involvement relating to the practitioner and did not raise anything at or close to the point in time of the solicitors involvement with the matter;
(c) that the husband, had he actually had a genuine belief that the solicitor concerned in the matter had information concerning his affairs (imparted to him) or that there were any insights into his character or personality (and same could have been used improperly) then he would not have permitted the relevant solicitor to be involved in any settlement, negotiation or ongoing litigation of the matter for several months (thus concerns about the bona fides were validly raised);
(d) that if a family law litigant does have a genuine concern about a legal adviser or practitioner, they must take the point at least in correspondence with the other side at the earliest possibility and that failure will cast doubt on the bona fides of any later complaint concerning information or alleged apprehension regarding misuse of same.
In Grattan & Grattan (No 3), Cronin J held that a fair-minded member of the public would be advised that one cannot sleep on one’s rights. It is therefore critical that as soon as it is determined that a conflict may exist, this should be discussed with a client and instructions properly sought.
Restraining the Impugned Lawyer and Allowing Another from the Practice to Continue to Act
In Watkins & Watkins (“Watkins”), Muir AJ , with whom Fraser JA and White J agreed (when referring to the decision of Chapman v Rogers; ex parte Chapman) made it clear:
 Plainly, the Chief Justice was not purporting to propound any universal principle that a solicitor or an employee of a solicitor could not act in a matter in which it was likely that he, or she, a partner or employee, may be called as a material witness.
The relevancy of the Watkins case is that in circumstances where a practitioner may be restrained there can still be appropriate circumstances permitting another practitioner of the practice to continue to act.
Notwithstanding the above, Brereton J said in Mitchell v Burrell made it clear that “the interests of justice… in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests”. In the more full discussion by His Honour, the following statements (where relevant) were made:
“ Accordingly, I am quite satisfied that Mr Morey may be a witness on a material matter, and that his evidence may be controversial.  That said, I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act… Accordingly… I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; ex parte Chapman  1 Qd R 542, 545, may go somewhat further, the cases indicate – as Campbell CJ did in that case itself – that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act
IMPARTING CONFIDENTIAL INFORMATION
When a party claims that confidential information and documents were passed over to the impugned practitioner when otherwise they should not have, it is often raised that same is privileged or are confidential and should be protected.
A defence that follows is this idea of ‘ordinarily disclosable documents’ that could not meet the relevant law as to a real risk of misuse.
One of our recent cases involved a restraint Application against a practitioner and an allegation of imparting confidential information to that solicitor.
At a point of family law, Rule 13.07 of the Family Law Rules 2004 provide:
RULE 13.07 DUTY OF DISCLOSURE – DOCUMENTS 13.07 The duty of disclosure applies to each document that: (a) is or has been in the possession, or under the control, of the party disclosing the document; and (b) is relevant to an issue in the case.
In B v B (Matrimonial Proceedings: Discovery)  1 All ER 801. In that case, at 803-806, Dunn J set out the history of the particular matter before him, and the meaning and effect of “possession, custody or power”, being the words used in RSC Order 24 which he was required to consider.
At 805g-i, Dunn J said:
The person to be considered is therefore the husband, the party to the suit, and the next and vital question in the case is: are these documents which were ordered to be produced documents which are or have been in the possession, custody or power of the husband? For this purpose 'possession' means, the right to the possession of a document. 'Custody' means the actual, physical or corporeal holding of a document regardless of the right to its possession, for example, a holding of a document by a party as servant o agent of the true owner. 'Power' means, an enforceable right to inspect the document or to obtain possession or control of the document from the person who ordinarily has it in fact. The requirements of the rules are disjunctive in their operation, so far as possession, custody and power are concerned. … But the right to inspect, under the provision… is a right vested in a director in his capacity as a director or officer of the company; he is in a fiduciary relationship with the company; he owes duties to the company and to its shareholders. Without the consent of the company he has no right to inspect documents, much less to take copies of them or remove them from the premises of the company for his own purpose unconnected with the business of the company. Because, in his capacity as a director, he has the right to inspect the company documents, it does not follow that in his personal capacity he has an enforceable right to inspect or to obtain possession or control of them so that the documents can be said to be in his power. It is a question of fact in each case whether or not a director has such an enforceable right; much will depend on th share structure of the company. In cases of a one man company, where the director owns all or substantially all the shares and any minority shareholders are not adverse to him, then the inference may be drawn that the company, although a separate legal entity, does not control him but he controls the company in such manner as to make it hi s other person or alter ego. In such a case, where the director controls the company and nominates the other directors, all the documents of the company are within his power in the sense that in truth and in fact he is able to obtain control of them.
Barro & Barro (No 2) (1983) FLC 91-317 is regarded as the leading authority in this Court. The Full Court there was referred to B v B (see at 71,156 L col), and said at 78,159:
Where documents are or have been in the ''possession custody or power'' of a party, even though he holds or held them as a servant or agent of a company or in his capacity as an officer of a company, they must be disclosed if they are relevant. Where they are still in his control they are also required to be produced unless the Court as matter of discretion upholds his object ion against production. Where the documents have been but are no longer in his actual possession but are in the possession of a company with which he is connected then the first question to determine is whether those documents are in his power. That is, whether, aside from his right to possession of them as an officer of the company, he is entitled to possession of the documents from time to time as against the company. This depends upon the nature of the company structure, the degree of control exercised by the particular director etc.; see generally B. v. B. (supra) at pp. 807-809, 811; Rochfort v. Trade Practices Commission (supra) esp. at pp. 32-33 (Gibbs C.J.), pp. 34-35 (Mason J.) and p. 36 (Murphy J.).
In B. v. B. (supra) at p. 807 Dunn J. says:
`` How do these general principles apply to the director of a company in relation to company documents, that is to documents which are in the possession of the company in the sense that the company has the sole legal right to their possession? If they are or have been in the custody or physical possession of the director, even if he only held them or holds them as servant or agent of the company, or in his capacity as an officer of the company, then they must be disclosed. Whether such documents are or have been in his custody is a question of fact in each case It is a matter for the discretion of the court whether they should be produced: see Skoye v. Bailey (1971) 1 W.W.R. 144 and Williams v. Ingram (1900) 16 T.L.R. 451.'' It would seem that in the exercise of that discretion the Court will need to have regard to all of the circumstances and will balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice that the husband or third party is likely to be caused by their production.
It was submitted by us in our recent case that it cannot be properly said that the documents to which the Applicant claims are confidential could not, in all the circumstances, result in a real risk of misuse as opposed to one which is merely fanciful.
Our argument was successful because the documents were also ordinarily disclosable in that family law proceeding.
Well-argued... well defended. Another one bites the dust!
Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.
 Gugiatti v City of Stirling  WASC 33 (per Templeman J), citing Rakusen v Ellis Munday & Clarke  1 Ch 831; see also McGillivray v Mitchell  FamCA 96; (1998) FLC 92-818.
 Karapataki & Karapataki  FMCAfam 6 at 28; Spincode Pty Ltd v Look Software Pty Ltd  VSCA 248; (2001) 4 VR 501; Kallinicos v Hunt  NSWSC 1181; (2005) 64 NSWLR 561; Geelong School Supplies Pty Ltd v Dean  FCA 1404; Bahonko v Nurses Board of Victoria (No 3)  FCA 491; Canberra Residential Developments Pty Ltd v Brendas  FCA 1484; Pond & Thurga (No 2)  FamCA 587; see also Ismail-Zai v The State of Western Australia (2007) WACA 150.
 Kallinicos v Hunt  NSWSC 1181 at .
 McGillivray v Mitchell  FamCA 96; (1998) FLC 92-818
  FamCA 1080.
  201 CLR 226.
 Kallinicos v Hunt  NSWSC 1181; (2005) 64 NSWLR 561.
 Pond & Thurga (No 2)  FamCA 587 at 21
  FCA 585 at 498; (1997) 76 FCR 492.
  FamCA 839 (‘Grattan’).
 Kallinicos v Hunt  NSWSC 1181; (2005) 64 NSWLR 561; Karapataki & Karapataki  FMCAfam 6 at 31.
 Holborow v Macdonald Rudder  WASC 265.
  WASC 265.
  WASC 94.
 Yunghanns v Elfic Ltd Unreported, Supreme Court of Victoria, Gillard J, 3 July 1998.
 Black v Taylor  3 NZLR 403; Raats v Gascoigne Wicks  NZHC 598; see also Ismail-Zai v The State of Western Australia (2007) WACA 150.
 Black v Taylor  3 NZLR 403.
  3 NZLR 403.
  FMCA 6 at 39.
 (2007) WACA 150.
  FMCA 6 at 39.
 Per Heenan AJA in Ismail-Zai v The State of Western Australia (2007) WACA 150 at 63.
  FamCA 587 at 213.
  QLJ 62.
 (1986) 11 Fam LR 95; FLC 91- 748.
  1 Ch 831.
  FMCA 6 at 45.
  FamCAFC 177 .
  FamCAFC 177.
  FamCAFC 177.
  FamCA 1046.
 Osferatu v Osferatu  FamCAFC 177 at .
  FamCAFC 177.
 Thevenaz (1986) FLC 91-748.
  FamCA 1046.
  FMCA 6 at 45.
  FamCAFC 177.
  FamCAFC 177 at .
  FamCAFC 177 at .
  115 ALR 112 at .
  FamCAFC 177 at .
 (Unreported, Supreme Court of Victoria, Gilliard J, 3 July 1998) 10.
  FamCA 96; (1998) FLC 92-818.
  FamCA 96; (1998) FLC 92-818.
  FamCA 839.
  QCA 101.
  1 Qd R 542.
  NSWSC 772 at . See also the earlier discussion by His Honour in Kallinicos v Hunt (2005) 64 NSWLR 561, 584-587 at -.
 Osferatu v Osferatu  FamCAFC 177.
© Scott A. Green, Associate Solicitor