Barber & Chalke
[2024] FedCFamC1F 356
•22 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barber & Chalke [2024] FedCFamC1F 356
File number(s): PAC 2771 of 2022 Judgment of: RIETHMULLER J Date of judgment: 22 May 2024 Catchwords: FAMILY LAW – PARENTING – Solicitor filing Notice of Ceasing to Act that does not comply with r 3.10 – Notice of Ceasing to Act filed 4.03am on day matter listed – Solicitor failing to appear – Litigant represented by solicitor not appearing – Referral of conduct of solicitor to Legal Services Commissioner – Costs ordered. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.10 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 22 May 2024 Place: Parramatta Solicitor for the Applicant: Phillip A Wilkins & Associates Counsel for the Respondent: Litigant in person (who did not appear) Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 2771 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARBER
Applicant
AND: MR CHALKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
22 MAY 2024
THE COURT ORDERS THAT:
1.The Respondent and Ms B meet the costs jointly and severally of the Independent Children’s Lawyer of today’s mention fixed at $150.
2.The Respondent and Ms B meet the costs jointly and severally of the Applicant’s solicitor of today’s mention fixed at $150.
3.The registrar be requested to refer the conduct of Ms B to the Legal Services Commissioner and the Director of NSW Legal Aid, together with a copy of the Notice of Ceasing to Act filed by Ms B on 22 May 2024, and the reasons given for making this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barber & Chalke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
In this matter, the parties are litigating concerning parenting arrangements.
A complex issue has arisen as it appears that one of the children is not in fact a child of the parties and was brought to Australia from Country C. Through previous court mentions, the putative parents for the child have been identified. Legal Aid has made arrangements for DNA testing so as to ascertain the true parents of the child, and to make inquiries as to the provenance of the child because the circumstances give rise to a real risk that the child may have been abducted from Country C. There are also ancillary issues that will no doubt arise as to the nature of the information given to the Department of Immigration Affairs concerning the child and the child's parentage, in order to obtain visas.
This brief summary identifies how complex a problem faces the Court in making appropriate orders that are ultimately going to meet this particular child's best interests, and the very real need to obtain proper information about the child's parentage before proceeding to make any form of final parenting orders. In this regard, the Court has been greatly assisted by the Independent Children’s Lawyer who has put in place significant arrangements around testing and has made contact with overseas agencies to assist.
The father failed to attend for DNA testing in accordance with a previous order, and as a result, the matter was listed today by a notice of listing emailed to the parties' lawyers on 17 May 2024. The mother and her lawyer appeared in person, as did the Independent Children’s Lawyer. The father failed to appear before the Court in person or by requesting an electronic link.
The father's solicitor, who it is understood was on a grant of legal aid, filed, at 4.03am this morning, a document headed Notice of Ceasing to Act, utilising the form for r 3.10 of the Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 (Cth). On the face of the notice, it does not contain a residential address for the father, despite that being a requirement of the form, and lists only a mobile telephone number and email address. Fortunately, the solicitors for the mother have previous documents that indicate an address for the father, although the failure of the lawyer to complete that part of the form means that there can be no certainty that the addresses that are held are the current addresses for the father.
More troubling is that the form advises that the next date that the case is listed in Court is on 22 May, that is, today, at 10.00 am. Because the notice of listing was only sent on 17 May, the form could not have been completed any earlier than 17 May, some five days earlier than the date on the face of the Notice of Ceasing to Act and the date it was filed.
Rule 3.10(1) of the Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 (Cth) provides as follows:
3.10 Lawyer--ceasing to act
(1) A lawyer may cease to act for a party:
(a) by:
(i) serving on the party a Notice of Ceasing to Act and a blank Notice of Address for Service; and
(ii) no sooner than 7 days after serving the notices, filing a copy of the Notice of Ceasing to Act; or
(b) with the court's permission.
As is apparent from the rule, a lawyer must undertake two steps in order to cease to act for a party. The first is serving the party with a Notice of Ceasing to Act, together with a blank Notice of Address for Service, and the second is filing a copy of the Notice of Ceasing to Act no less than seven days after the service of the notice. It is unfortunate that the court form does not contain a space for a further endorsement as to the date of service of the notice. This means that, in many cases, there is little on the face of the notice to enable the Court to verify that there has been compliance with the rule.
In this particular case, the Notice of Ceasing to Act was dated 22 May 2024, the same day it was filed. The possibility that an unsigned notice may have been served in accordance with r 3.10 can be excluded as the listing for today was not generated until five days before the date of the Notice of Ceasing to Act (which contains today’s listing date) and therefore the notice cannot have been served upon the father seven days before its filing. The notice is therefore an invalid notice and takes no effect under r 3.10. The conduct of the solicitor in filing such a notice that does not comply with the rule is, in my view, improper.
The failure of the solicitor to attend at Court today, or at the very least, request an attendance by electronic communication, is also a breach of the solicitor's obligations to the Court.
In these circumstances, it is appropriate that I direct the registrar to provide a copy of these reasons and the Notice of Ceasing to Act to the Legal Services Commissioner. As this case appears to be being conducted on a grant of legal aid, it is also appropriate that the documents be provided to the Director of NSW Legal Aid.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 27 May 2024
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