In the case of Bransdon and Davis and Gilbert(2007) FLC , the Full Court of the Family Court of Australia has considered an appeal by a wife's parents and a cross appeal by the wife against an order for property settlement. The issues required to be determined in this appeal were:
- where the wife's parents and the wife were jointly represented, and there was a prospect of a conflict arising but not perceived by the legal representatives, what is the duty of the court?
- subsequently, when a conflict of evidence actually arises, and the legal representatives retire leaving the parties self-represented, what is the duty of the court to the unrepresented party?
- whether the trial judge was in error in finding that the husband and the wife had an equitable charge over a particular property.
The trial judge had been specifically advised by counsel for the wife and her parents that there was no conflict and no application was made that the trial be aborted or that counsel or solicitors should be restrained from acting further in the proceedings.
The Full Court concluded that the trial judge was not obliged to do more and that the court would only restrain the appearance of a legal representative because of his or her duty to the court in a clear case. In their view, this was not a clear case. Their Honours were also of the view that the wife and her parents were given procedural fairness by the trial judge continuing the hearing.
The Full Court dismissed the appeal and ordered the wife's parents to pay two thirds of the husband's costs and the wife one third.