Case Summary
Catlin & Catlin (No 3) [2026] FedCFamC1F 351
Keywords
In Brief
The Court referred a solicitor to the South Australian Legal Profession Conduct Commissioner after he facilitated transactions that breached property orders, securing borrowings of $320,000 (more than double the authorised limit) over the property to be sold, while acting for both the husband and a separately represented second respondent; the Court made no findings of misconduct, only that the conduct warranted investigation.
In the Judge's Words
The Court cannot, in my view, overlook what may ultimately be determined to have been serious breaches on the part of the practitioner of his professional obligations which may undermine public confidence in the legal profession and risk bringing the profession into disrepute.
Parker J at [37]
Summary
These reasons arose within long-running enforcement proceedings between a wife and husband whose consent orders under s 79 of the Family Law Act 1975 (Cth) dated back to 2016. The husband had failed to make a payment owed to the wife, and his conduct during enforcement was so egregious that in June 2025 the Full Court declined to hear his appeal while he stood in contempt, applying Hadkinson v Hadkinson. Consent orders of 8 December 2025 provided for the sale of a former matrimonial home, permitted borrowing capped at $150,000 for repairs (secured only by caveat, with a lender approved in writing by the wife), and restrained further encumbrance. The husband's solicitor acted for him throughout and was present in court when those orders were made.
By April 2026 the property remained unsold. A title search revealed that the husband and the second respondent (his subsequent wife, separately represented and by then said to have separated from him) had executed a mortgage securing $320,000, more than twice the authorised amount, secured by mortgage rather than caveat over the sale property and also over other properties in apparent breach of earlier orders, with funds applied to unauthorised purposes including loan establishment fees, prepaid interest, brokerage, and mortgage arrears on the other properties. The wife had not consented and had not been informed. The solicitor had signed a borrower's solicitor's certificate, three guarantor's certificates, and witnessed statutory declarations, and his own affidavit admitted he knew the borrowing exceeded the cap and that disclosure to the lender and the wife was required, yet ensured neither.
Parker J expressly made no findings of misconduct and drew no conclusions about the outcome of any investigation, but held that the matters, including facilitation of breaches, failure to ensure the lender and the wife were informed, possible awareness of false representations as to loan purpose, and acting for two separately represented parties with potentially conflicting interests, warranted referral. The Court directed that the reasons and a package of supporting documents be provided to the Commissioner under s 72(a) of the Legal Practitioners Act 1981 (SA). The decision is a pointed reminder that a practitioner's paramount duty to the court can be breached by facilitating a client's non-compliance, and that acting for parties with conflicting interests carries acute risk.
Key Takeaways
Referral is not a finding of misconduct. Parker J was explicit that the Court made no findings about the practitioner's conduct and drew no conclusions as to the outcome of any investigation. The decision is a referral for investigation by the Commissioner, who is the appropriate official to determine whether further action is warranted.
The duty to the court is paramount. The South Australian Legal Practitioners Conduct Rules 2022 provide that a practitioner's duty to the court and the administration of justice prevails over all other duties, and that a practitioner whose client intends to disobey a court order must advise against it and must not assist the client to carry out or conceal that course.
Knowledge of a client's history of non-compliance heightens the duty of care. The Court observed that where a practitioner is well aware the client cannot be assumed to observe court orders, particular care, attention and caution with respect to dealings affecting those orders is warranted.
Acting for separately represented parties with conflicting interests is high risk. The practitioner acted for both the husband and the second respondent in the impugned transactions despite her being separately represented in the proceedings and despite their potentially conflicting interests. The Court questioned whether any consent was fully informed and whether communications occurred with the consent of the second respondent's own lawyers.
Statutory obligations reinforce the conduct rules. The Court noted the obligations in s 96 of the Family Law Act 1975 (Cth) to facilitate the client's compliance with the overarching purpose in s 95, and in s 71B(10) to encourage compliance with the duty of disclosure, as engaged by the circumstances.
Take care with privilege when filing an explanatory affidavit. The practitioner's affidavit disclosed communications with both clients while purporting to reserve privilege. The Court flagged concern that adequate steps may not have been taken to ensure those disclosures did not waive privilege without the relevant client's consent.
Legislation Referenced
Full Decision