Blair and Johnson (No.2) - [2008] FMCAfam 454

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLAIR & JOHNSON (No.2)

[2008] FMCAfam 454

FAMILY LAW – Procedural – mother’s solicitors involved in previous proceedings relating to abuse allegations with respect to one child – injunction restraining solicitors from continuing to act for the mother.

Family Law Act 1975, Part VII

M v M (1988) FLC 91-979
B v B (1988) 82 ALR 584
A v B (1990) FLC 92-126
Thevanaz & Thevanaz (1986) FLC 91-748
D & J Constructions & Head (1987) NSWLR 118

Applicant:

MR BLAIR

Respondent:

MS JOHNSON

File Number:

NCC735 of 2008

Judgment of:

Lindsay FM

Hearing date:

22 April 2008

Date of Last Submission:

22 April 2008

Delivered at:

Newcastle

Delivered on:

22 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr Duane

Solicitors for the Applicant:

Kekeff & Associates

Counsel for the Respondent:

Mr Connor

Solicitors for the Respondent:

The Argyle Partnership Lawyers

ORDERS

The application by the wife for an adjournment of the husband’s application for injunction is refused.
The wife’s solicitors and Counsel be restrained and injunctions be granted restraining each of them from continuing to act on behalf of the wife in these proceedings.
The operation of the injunction order in paragraph 2 of this Order be stayed to such extent as is required to facilitate the wife’s solicitors instituting and prosecuting an Appeal from the Order contained in paragraph 2 hereof on her behalf.

IT IS NOTED that publication of this judgment under the pseudonym Blair & Johnson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC735 of 2008

MR BLAIR

Applicant

And

MS JOHNSON

Respondent

REASONS FOR JUDGMENT

Before me today have been competing applications for parenting orders relating to the two children of this relationship. At an earlier stage of today’s proceedings I adjourned an interim hearing for about four or five weeks. The purpose of the adjournment was to facilitate the appointment of an Independent Children’s Lawyer and ultimately I refused to hear the interim application of the father today, or what might be described as an interim interim application pending the appointment of the Independent Children’s Lawyer for the reasons I gave earlier today.
But the fact that we were not able to deal with the substantive issues in the matter today, as it were, cleared the path for an issue to be agitated by the father that was raised obliquely this morning. In fact, to the extent that it was raised this morning when the fate of the interim application, or the interim interim application, was unclear, it was actually raised by me, it was this issue as to whether there is any unfairness that operates towards the father by the mother in the proceedings continuing to be represented by her solicitors and continuing to instruct her counsel. And ultimately, as I say, this issue has only come to the fore today when, as I apprehend it, the father and his legal representatives have made an assessment from a tactical or strategic point of view that the furtherance of the application will not have any consequence in terms of the delay of matters relating to his time with the children that, from his perspective, were of more immediate concern.
That issue touches upon the aspect of the delay in the bringing of the application, which is an important aspect of this matter and I will return to it in a moment.
The mother’s documents make it very clear that in terms of the competing applications for parenting orders her case is that these children, two young children, one of the age of three and a half, one just over a year old, to spend time with their father would constitute an unacceptable risk of abuse as that notion has been explicated in cases from M v M (1988) FLC 91-979 and B v B (1988) 82 ALR 584 onwards. And it is said in her documents that the risk arises from a range of behaviours on the part of the husband during the relationship of which she was aware, other matters of which she became aware whilst the parties were separated under the one roof, and then further matters of which she has become aware since they have physically separated. She now lives in Toowoomba, the husband continues to reside in the Newcastle area. And, indeed, part and parcel of the application before the Court in May is a contention by the husband that she should be obliged to return from Toowoomba, to return to Sydney or to be obliged to relocate for the first time to Newcastle.
The behaviour covers a range of what might broadly be described as aberrant or unorthodox sexual behaviour. It involves her discovery, or a gradually increasing knowledge on her part, of the husband’s participation in various internet agencies relating to, she says, pornography of one form or another, aberrant sexual behaviour of one form or another, and what she alleges is his membership arising from information she says she has obtained of various social groups promoting these various behaviours.
Also, a significant part of her concern is the husband’s behaviour of self-mutilation in relation to his genitalia. I do not propose to chronicle in any detail in these reasons the sorts of allegations she makes but they are allegations that are highly particularised, both in terms of the way in which she has made these discoveries and the obsessional behaviours which she says the husband will continue to engage in in a way that will present an unacceptable risk of abuse to the children.
The miscellany of allegations relating to sexual abuse also include, at least obliquely and perhaps directly, allegations that speak of his inappropriate behaviour towards the mother’s child by a previous relationship, a child L. And there are certainly some passages in her affidavit, paragraph 22 in particular, which refer to what she says was an insistence on the part of the father to bathe with L or to have L bathe with him, although that aspect of the allegations is not particularly clearly articulated.
Now, complicating the matter is this circumstance; that whilst the parties were together the mother was involved in litigation with L’s father. And in that litigation, which proceeded to trial and, indeed, appeal from the orders made at trial in the Family Court, the mother said that that child, L, had been the subject of sexual abuse by her father, a Mr P. And ultimately, I am told, and this I did not take to be controversial, Rose J in the Family Court was not satisfied that Mr P having contact with L, time spent with L, presented an unacceptable risk of abuse but he did end up making an injunction that regulated, to some extent, the father in these proceedings Mr Blair’s interaction with that child. There was an appeal from Rose J’s decision and, again I do not take this to be controversial, all that relevantly emerged from the appeal was that the order for that injunction was discharged.
During the course of those proceedings the father tells us, in his affidavit of 18 April and in other material that has been put before me, that part of the response of Mr P to the allegations that were directed against him was to suggest that Mr Blair presented some kind of risk to L. And so the trial before Rose J was to some extent taken up with the rebuttal of that suggestion by the wife. Unsurprisingly, in order to answer that suggestion, the husband was called as a witness in those proceedings and gave evidence and he tells us, and this was not disputed, he tells us in paragraph 7 of his affidavit of 18 April that during the course of those proceedings he was interviewed at length by the wife’s solicitor and counsel. It is not entirely clear whether the interview is said to have included counsel but the suggestion is certainly made that both solicitor and counsel have had access to what he describes as all of his information regarding this issue. And he does in fact say that both interviewed him at length regarding this issue.
He was also the subject of some material which was presented at that hearing, I am inferring, through the offices of the Independent Children’s Lawyer. It was a report from a Dr Quadrio. I may be wrong about who called Dr Quadrio but it is clear that his report extended not just to the parents of L but to Mr Blair as well. And it is in that context that the application is made. It is an oral application that is made today that there should be an order restraining the solicitors and counsel for the wife from continuing to act for her.
This is not, of course, the first occasion on which an application of this kind has been made in proceedings of this kind. The parties have each had the opportunity, through their counsel, to address me on a decision of a single Judge of the Family Court, Smithers J - the case of A v B (1990) FLC 92-126. That was a case where the wife re-partnered and the husband’s solicitors had previously acted for the wife’s new partner. So, it is a case that is obviously not on all fours factually with this case. His Honour discusses the Court’s power to make the relevant order. That does not appear to have been a matter that troubled him. It is not a matter that has been agitated before me. There is a passage that is cited from a decision of Frederico J in Thevanaz & Thevanaz (1986) FLC 91-748 in at A v B (supra) at 77-843 where His Honour says:
Every Court has control of its own procedure and it is apparent from the decision in Mills’ case to which I have referred and from other cases arising in somewhat different circumstances that the Court has the power to restrain.
Ultimately in that case, His Honour was satisfied that the information that the husband’s solicitors had about the financial circumstances, past and present it looks like, of the wife’s new partner made it unfair for them to continue to act for the husband in those circumstances. The gravamen of the decision was that the solicitors had accessed material, or information, relating to the new partner’s financial circumstances which would not otherwise have been made available to them. That is the factual substratum upon which the decision is made but his Honour clearly approached the matter upon the basis of attempting to identify what he described as a real risk of injustice if the order was not made.
There is another decision that is cited in A v B. It is a decision of Bryson J in a case of D & J Constructions & Head (1987) NSWLR 118. And there is a passage from that decision set out at 77-843 of A v B (supra) as follows:
It seems natural that a particularly careful view would be taken in Family Law business as such litigation tends to be about highly confidential facts and a very wide range of facts and circumstances can conceivably be relevant. A sensitivity which even the most reasonable people feel about such litigation when they are engaged in it calls for careful measures to secure not only that justice is done but that it is apparent that it is done, an appearance which should not survive any general impression that lawyers can readily change sides.
A v B (supra) was a case, of course which did not involve solicitors acting against a former client. And to that extent there is some commonality with the facts of this particular case.
Mr Connor, for the wife, opposes the application. He opposes the application but he also seeks that before the application is determined that the application is adjourned. He complains, firstly, that the application is only brought today. The matter has been before the Court on a previous occasion. It was before the Court on 31 March. It was before Housego FM. It was adjourned to today and orders were made for the filing of affidavit material by the wife.
It certainly is a matter that could have been raised on that occasion. It is accepted that it was not and I am also proceeding upon the basis that there was a period of some time, it could have been weeks, it could have been months, where the husband either in an unrepresented state or through the solicitors currently acting for him or through a different firm of solicitors was negotiating, or at least dealing, with the wife’s solicitors and the matter does not appear to have been raised at any stage of what must have been, I think I can infer, I hesitate to use the word negotiation, but some protracted dealings at least between the two sides.
Mr Connor says he is disadvantaged by my dealing with the application today. The wife has been here today meeting a case, she thought, in relation to interim parenting orders and she has ended up having to meet a case that relates to a specifically procedural point. And he says that if a further opportunity were given it would enable the wife’s solicitors to present detailed material to the Court about the nature of the husband’s dealing with those solicitors since the parties to these proceedings separated, but would also give them an opportunity of providing any pertinent material from the period in which those solicitors acted for the wife whilst she was with the husband in these proceedings. And I readily accept that a whole range of material under both categories could be made available.
The question is its relevance. If the fundamentals of the matter, and by the fundamentals I mean if the dynamics involved in the history which I have outlined to date, are such that there is a clear inference to be drawn of risk of prejudice or disadvantage or unfairness to the father, then the opportunity to adduce material that might only touch upon such matters may not assume such significance. So, there is a request for an adjournment to put that material before the Court.
Mr Connor also makes the point that the information upon which the mother now relies is information that would be available to solicitors who had no prior involvement such as these solicitors have had with the husband, that the material is either of such a nature as it is in the public domain or it is material, presumably, that could be obtained through discovery and disclosure processes in this Court or, indeed, it is material that could be obtained by access to the previous solicitor’s file being granted. But the point being made is that it is material that does not have to have about it a provenance that relates to the solicitor’s previous involvement in dealing with the husband in the course of representing the wife in the other proceedings. And I think, again, it is a submission that generally speaking I should accept.
The difficulty is, of course, that the disadvantage that inures to someone in the position of the husband is not exclusively a disadvantage that relates to acquisition of particular items of knowledge. It is broader than that. It is information that is made available on account of the interaction between the solicitors and the husband as well. It would be very difficult, I suspect, to disentangle during the course of the hearing of these proceedings, information that came exclusively from one source or another, that is, to be able to say that any particular information or any particular factual matter upon which the wife relied had its provenance in the discussions that took place between the husband and the wife’s solicitors in the period whilst the parties were together, or whether it had its provenance in this public domain material, or whether it is a combination of both.
I think the point is that there is, in my view, an irresistible inference to be drawn of the significant potential for there to be information that has arisen from the conduct of litigation of this nature that has been made available to the wife’s legal advisers that would not otherwise have been made available to them.
It is not disputed, and plenty of opportunity was provided by me to the wife’s legal representatives to put these matters in issue if they so chose, that during the course of the conduct of the earlier proceedings on the part of the wife the husband was interviewed, that affidavits were prepared from him, that he was called as a witness. Each stage of that process provides ample opportunity for insights to be obtained in relation to behaviours on the part of the husband. Each stage of such a procedure involves opportunities for the observation of any behavioural irregularities, for want of a better expression, on the part of the husband, any vulnerabilities with respect to what is a highly personalised topic. That is, sexual or sexualised behaviour, in this case with a particular emphasis upon alleged genital self-mutilation.
So, whilst I readily accept that a great quantity of the material that is going to be relevant that is going to be adduced by the wife in this case, is material that would be available to persons without the privileged access to the husband that arises from the course of the conduct of the earlier proceedings. There is also a great deal of material that could only be available from that source. It is highly specialised, highly particularised information that is being made available that simply would not have been made available had there not been this commonality of interest between the wife and between the husband whilst he was living with her.
True it is, as Mr Connor says, that the wife’s solicitors at no stage of the earlier proceedings owed the husband any fiduciary duty. There is no evidence, for example, that he was meeting payment of their accounts or that they accepted a responsibility to act on his behalf. Indeed, if that had been the case it may have given rise to all sorts of problems relating to conflicting interests. But there was a commonality of interest between the wife and the husband at that stage. They had similar (to some extent but ultimately different) reasons for promoting or resisting the allegations that were being run by the wife’s previous husband; the wife because she wanted a successful outcome to the litigation relating to the child L and the husband because he wanted to resist any suggestion that he posed an unacceptable risk of abuse to that child.
And that is the matter that is really striking about the dilemma that is posed by the wife’s solicitors continuing to act for her in this case. It is the fact that their privileged access to the husband and to information made available by him, and information that was being made available by him in the context where he thought himself free, presumably, to be candid, to be other than on his guard. He was after all making himself available to the solicitors representing his wife where there was, as I say, this identity of or commonality of purpose between himself and his wife. So, he is providing this information in a highly unguarded fashion to them. And we find that it is information about his sexual or sexualised behaviour which is front and centre in these proceedings.
The proceedings relate to, and plainly will continue to relate to, the allegation by the wife that that contact between he and his children poses an unacceptable risk of abuse on account of his sexualised practises, including with specific reference to genital self-mutilation. That is precisely the same allegation that was being promoted by the wife’s husband in the previous proceedings.
Every case is different. As I think the case of A v B (supra) demonstrates, it is not a case of working out which category of case the alleged unfairness arises in and then seeing whether the facts fit that particular category. This case has some facts in common with A and B in that the solicitors whom it is sought to restrain have not owed fiduciary duties but, as I say, each case, as Smithers J in A v B (supra) makes plain, has to be decided on its own facts.
The case of Thevanaz, to which I have referred earlier, the decision of Frederico J that is referred to in A v B (supra), left open the case as to whether such a restraining order might be made in what was described as a case where the risk was more theoretical than practical. It is my view, and focusing only upon what is not controversial about the husband’s participation in the earlier proceedings, it is my view that the risk is one that is both practical and theoretical. It is, in my view, an inference that is readily and easily to be drawn that during the course of the conduct of what one anticipates will be highly disputative proceedings the wife will be promoting a range of allegations against the husband and whoever is acting for her will be under a duty to provide, or to put at her disposal, all of the information in their hands. And in this case, if the solicitors were unrestrained that would include information that has been made available to them only because of the circumstance of their having prepared the husband as a witness for the wife and having called the husband as a witness for the wife in the earlier proceedings which relate to the very same allegation that is being promoted against the husband.

There is another tangential issue raised by the husband that is at a superficial level capable of having some bearing upon the matter and it is the suggestion of there being an inappropriateness in the wife’s solicitors, as it were, changing the whole basis of the case they present against the husband. That is, what is said to be a fundamental inconsistency between the case promoted as it related to the husband in the earlier proceedings and the case that is being promoted in relation to the husband in these proceedings. But it is plain that the wife now relies upon not only material that was available during the course of the first proceedings but seeks in addition to that to rely upon material that has arisen since the parties separated, both under the one roof and physically. So that is not a matter that, in my view, has any particular bearing on the outcome of the matter.
In the end, it is not a matter of reacting reflexively to what I would describe and what I described in argument as that striking feature of the similarity of the case against the husband in the earlier proceedings and the case against him here. It is a matter of going beyond first impressions. It is a matter of balancing up all of the various considerations to which reference has been made in the argument. But at the end of that exercise I am still left with a very deep and abiding concern that the continued representation by the wife of the same legal practitioners would create an advantage for her and create a disadvantage for the husband in these proceedings that would present an unacceptable distortion of the Court’s obligation to do justice between the parties in accordance with Part VII of the Family Law Act 1975 (the ‘Act’).
The adjournment application is, as I say, a matter that was a discrete application but the adduction of further material in relation to the question of delay I think is highly unlikely to be of any great assistance in determining the matter. The delay has to be recognised. It is a matter that may well end up sounding in terms of an application for costs. In other words, it may be that ultimately the wife brings an application for costs against the husband because if this application ought to have been made in a more timely fashion then costs which might now be seen to be regarded as wasted would not have been incurred. If such an application is made, then that application would have to be determined on its merits. But whilst this is the second occasion on which this application has been before the Court, I can understand why the matter might have been adjourned without argument in relation to any procedural issue, including this one, on the last occasion. There was, after all, no opportunity at that stage for the wife to file any documents.
It could have been argued, but the fact that it was not argued does not seem to me to have created a delay which should be determinative of the application. And nothing has been put to me to satisfy me that if a further opportunity were provided for the adduction of more material relating to this period of time at which the wife’s solicitors called the husband as a witness, I am not satisfied that that is capable of doing anything to change the fundamentals of the matter to which I have referred.
So, for those reasons, firstly, the application for an adjournment of the husband’s application for injunction is refused and, secondly, there will be an order that the wife’s solicitors and counsel be restrained and injunctions granted restraining them from continuing to represent the wife in these proceedings.
A matter has arisen at the end of my reasons as to the form of the order. It is a matter I had not given any specific consideration. The order made in the decision of Smithers J upon which I have placed some reliance was an order directed to the legal practitioners themselves. And I suppose that is because fundamentally this is a matter that is regulating the practitioners as practitioners. It is not a matter that is regulating the conduct of the wife in terms of any relevant aspect of the Act or otherwise. And whilst I recognise that the form of the order might have some practical consequences that have been adumbrated by Mr Connor, I do not think that should be determinative.
The purpose of the order is to prevent the risk of injustice that I have identified from occurring and the order should be framed in a way which best serves that purpose. So, the form of the order will be an order restraining the wife’s solicitors and counsel from continuing to act on her behalf.
I have just made an order for injunction that has the effect of preventing the wife’s solicitors and counsel from continuing to act on her behalf. I am told that instructions have been received in relation to her appealing that order and given that circumstance a stay is sought in relation to therein so far as the order would, on its terms, not authorise or would prevent the wife’s solicitors from prosecuting that appeal.
The principles relating to the grant of a stay are clear but I do not propose to go through them seriatim. It is really a case that turns on its quite distinctive set of facts. I regarded ultimately the decision that needed to be made in relation to the injunction as one that could comfortably and could safely be made on the facts as they were before me, but it is always important of course to posit the possibility that I am wrong about that, that matters which seem plain to me and a risk of unfairness that seemed manifest to me in the material that was before me might not impress an appellate Court in the same way. And I suppose it is especially important in cases where the decision is one that has been in that sense easy to make. It is especially important in those cases to posit the possibility of error.
The appeal will be in relation to this procedural order I have made, a significant procedural order, but it is a matter of law. It is difficult to conceive of any circumstances in which the mischief that I have addressed in making the order will come to play any role in the conduct of the appeal proceedings. The success of the appeal will stand or fall on my identification of the test and my application of the test to the facts of this case. There is nothing about the wife’s solicitors’ privileged access to information from the husband that is going to have any bearing upon that.
As to the substantive proceedings that are set in May, the order for injunction can continue to operate there where the mischief has been identified, but it seems to me difficult to identify any prejudice that would operate as against the husband by the stay being granted in those terms.
On the other hand, there is a clearly identified disadvantage to the wife in having to instruct a fresh set of solicitors, there are extra costs for a start, for the purposes of appeal proceedings about which I have to, and do, contemplate the possibility of success, that is, that the appeal proceedings will find I have fallen into error. So, it is really a case that turns upon the balance of convenience in that respect.
It is not the only matter that is to be brought to account in the application. There is a solicitors’ duties type aspect or patina to the decision I have made. I was careful throughout, I hope, in my determination to focus upon the risk of unfairness and to resist taking on any role as an invigilator of the ethical conduct of legal practitioners. The conduct of legal practice is difficult enough without judicial officers stepping outside of the proceedings to do that sort of thing. But nevertheless, there is that aspect of the matter which troubles me somewhat in that I have made an order that was against the background of what I thought was plainly inappropriate, the plainly inappropriate circumstances of the solicitors continuing to act. The order I am making allows that to continue in one respect. But as against the substantial prejudice to the wife that will be occasioned by my not granting the stay on the terms that are sought, I do not think that is a matter that should assume determinative significance.
I think the stay ought to be granted in the terms in which it has been sought.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 8 May 2008