Bracewell and Southall
[2008] FamCA 687
•13 August 2008
FAMILY COURT OF AUSTRALIA
| BRACEWELL & SOUTHALL | [2008] FamCA 687 |
| FAMILY LAW – PRACTICE AND PROCEDURE – CONFLICT – application by the mother for the father’s solicitors to be restrained from continuing to act for the father – application granted on the basis of public interest in preserving confidence in the administration of justice |
| Family Law Act 1975 (Cth) |
| Northern Territory of Australia v GPAO & JAW & Separate Representative (1998) 196 CLR 553 Bransdon and Davis and Gilbert (2007) FLC 93-328 Holborow v Macdonald Rudder [2002] WASC 265 In the marriage of L P and K D McMillan [2000] FamCA 1046 T v L (2000) 160 FLR 63 Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429 |
| APPLICANT: | Ms Bracewell |
| RESPONDENT: | Mr Southall |
| INDEPENDENT CHILDREN’S LAWYER: | Laurie O'Farrell |
| FILE NUMBER: | MLC | 8972 | of | 2007 |
| DATE DELIVERED: | 13 August 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 13 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Swart |
| SOLICITOR FOR THE APPLICANT: | Joe Mamone Lawyer |
| COUNSEL FOR THE RESPONDENT: | Mr DeVries |
| SOLICITOR FOR THE RESPONDENT: | Morrison & Sawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | N/A |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | O'Farrell Robertson McMahon |
Orders
IT IS ORDERED:
That the firm Morrison Sawers Lawyers be and is hereby restrained from continuing to act in these proceedings for the father.
That the father forthwith file a Notice of Address for Service.
That pending compliance by the father with the aforementioned Order the father’s address for service appear in the records of the Court as ….
IT IS NOTED that publication of this judgment under the pseudonym Bracewell and Southall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8972/2007
| MS BRACEWELL |
Applicant
and
| MR SOUTHALL |
Respondent
and
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
This matter comes before me today on the mother’s application filed 22 July 2008 to restrain the father’s solicitors, Morrison Sawers, from continuing to act for the father. The father resists the mother’s application.
The parenting aspects of these proceedings concern the child, a daughter, born in October 1998 and are between the father, Mr Southall, and the mother, Ms Bracewell. The parenting proceedings were instituted by the mother in the State Magistrates’ Court at Shepparton in early July 2007, were subsequently transferred to the Federal Magistrates Court at Melbourne (sitting at Shepparton) and were then transferred, at what appears to have been the point that it may have been considered to be set down for final hearing on the Shepparton Circuit, to this Court on 4 February 2008. On 5 May 2008 the matter was reviewed by Registrar Field who placed the matter in the trial notice pool with some modest priority where it still awaits allocation to a final hearing or a judge’s docket (as the case may be). I note that this is a case to which the procedural elements introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) apply.
At all times, the mother has been represented by the firm Joe Mamone Lawyer of Shepparton and the father has been represented by the firm Morrison & Sawers of Shepparton. The mother’s lawyer is a sole practitioner. The father’s lawyers are a medium to large rural firm. A perusal of documents filed on behalf of the father discloses that one Robyn Curtis was the lawyer responsible for preparation of the first round of documentation in July 2007 and, thereafter documentation has been prepared by one Nicole Ingles.
Pursuant to an order made by Federal Magistrate Walters on 29 October 2007, Mr Laurie O’Farrell of the firm O’Farrell Robertson McMahon of Bendigo was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act. As such, his role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what he believes to be the best interests of [the child].[1] He is not a legal representative retained by the child and he is not bound by any instructions from the child.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
This child is the only child of the relationship between the mother and the father which commenced in September 1997 and ended in February 1999 when the child was about 4 months old. Subsequently the parents re-partnered. The mother entered a relationship with Mr D. That relationship no longer exists. There is one child of that relationship, B, born in September 2007. The father is married to Mrs A Southall. There are two daughters of that relationship; J aged 5 years and N aged 22 months old. Mrs Southall’s 11 years old son from an earlier relationship also lives in that household.
On 22 July 2008 the mother filed a further application. It is expressed to be returnable on 20 August 2008 which is the Wednesday of my next judicial duty list week. I customarily look through the files which will be before me in ensuing weeks and in that context I read the file in these proceedings. Apart from seeking to restrain Morrison & Sawers from acting for the subject child’s father, the mother seeks further interim parenting orders without which, she deposes, she will not be able to spend time with the child who she has not seen since December 2007. I listed this matter for mention on 8 August 2008 at which time all parties were represented and it was agreed that the disqualification issue ought to proceed separately and as soon as possible. It was discussed that, in the event that the father’s solicitors were precluded from continuing to act for him, he would be without representation and that an adjournment of the parenting matters for that reason alone would be best avoided. I also vacated the original return date of 20 August 2008. The child and the parents are participating in a child and family assessment in this registry today and the interim parenting issue will now be listed before Senior Registrar Fitzgibbon on 19 August 2008. It was necessary to bring the return date back by one day because Ms T, who is conducting the child responsive counselling intervention cannot deliver a written assessment in the brief time available and she is not available to deliver her assessment orally to the court on 20 August 2008.
Returning to the application concerning the father’s solicitors which is framed “the firm Morrison & Sawers Lawyers disqualify themselves from further acting on behalf of the Father[5]”. It is not well drawn but the intent is clear, the mother seeks an order from this court enjoining the solicitors from continuing to act.
[5] Paragraph 9 pf Part D of mother’s application in a case filed 22 July 2008 [folio 15]
The mother relies on the follow facts[6]:-
[6] Deposed to in her affidavit sworn on 21 July 2008
41.THAT on the 16th May 2008 Department of Human Services sought a protection application with respect of my child [B] born […]/09/2007.
42.THAT on the 6th June 2008, Ms [C] of the firm Morrison and Sawers who act on behalf of the Father in these family law proceedings appeared on behalf of the Department of Human Services with respect to [B]. I say that:
(i)Ms [C] was heavily involved in the initial family law proceedings at the interim hearing in the Shepparton Magistrates Court in 2007. She appeared as counsel at the contested interim hearing on behalf of the Father. The hearing was heard over a period of three days.
(ii)On reading the material which would have been provided to her by the Department of Human Services she would have become apprised of the fact that I was also the mother of [the subject child] and that [the father] was my former de-facto partner involved in the family law proceedings.
(iii)Even if she had not read the material, she would have been provided with the names of the parties prior to accepting the brief and I say she would have been apprised of the conflict of interest.
(iv)She should have immediately withdrawn from the child protection proceedings.
43.THAT as soon as I recognised Ms [C], I alerted my lawyer that Ms [C] was [the father’s] Lawyer in the Family Law proceedings. He then spoke with her and I do not know what discussions transpired but she continued to appear in the proceedings on that day.
44.THAT my lawyer in these proceedings Mr Mamone has told me that he has spoken with Mr Ian Michaelson my lawyer with respect of the child [B]. My lawyer Mr Mamone has told me that Mr Michaelson told him:
(i)That he had indicated to Ms [C] that there was a possible conflict of interest;
(ii)That Ms [C] took the opposite view;
(iii)That Mr Michaelson suggested to Ms [C] that proceedings should be stood down whilst they obtained a ruling from the Ethics Committee at the Law Institute of Victoria;
(iv)THAT finally, at the end of the day Ms [C] agreed to withdraw from the Child Protection proceedings, but I say that the damage had already been done with respect of my Family Law Proceedings.
45.THAT I say I never agreed to Ms [C] continuing to act in the Child Protection proceedings and I now object to her and or her firm continuing to represent [the father] in these proceedings as to do so would provide him with an unfair advantage.
46.THAT [Ms F] told me that the Father was well informed about the issues surrounding the child [B].
As indicated, the father resists the mother’s application. The only evidence relied upon by the father is deposed to by Ms Curtis, lawyer[7]. She says:-
[7] Affidavit of Robyn Curtis sworn 7 August 2008.
1.THAT I am a partner with the firm of Morrison and Sawers.
2.That I was briefed by the Department of Human Services to appear in a Child Protection matter on 6 June 2008.
3.There were a number of other matters listed on the day.
4.Sometime during the day the Solicitor acting for the Mother said that someone within our firm was acting for [the father]. I acknowledged that this was distinctly possible, as although I had no recent involvement with the matter I was aware that [the father] was previously a client.
5.Mr Michaelson, the Solicitor acting for the Mother, claimed that I was therefore in conflict. I disagreed and said that [the father] was not a party to the proceedings and was not related to any of the parties and was not involved. I said it was my view that I was entitled to act against his client for other clients.
6.Mr Michaelson said that I might be in receipt of information that could somehow be used against the Mother. I said that any information I received was not received whilst I was acting for his client but against her and that I was not in conflict.
7.Mr Michaelson said that the matter should be stood down and he would seek a ruling from the Ethics Committee.
8.I then advised Mr Michaelson that I would withdraw from the Child Protection proceedings. I did this because I did not want to get caught up in a dispute about conflict. I did not acknowledge at any time that I believed that I was in conflict as I have never purported to act in the interests of his client and in those circumstances could not have received any information which I could use against his client whilst acting for his client.
9.I asked Mr Michaelson if he wanted me out of the proceedings “there and then” or at the end of the day. He said the end of the day was fine. At that stage it was apparent that the Child Protection proceedings would be adjourned.
10.I advised Mr Michaelson that he could tell his client that I would take no further part in the Child Protection proceedings.
11.The respondent’s claims that I am now in conflict in the family law matters are denied. I say I have never been in conflict. I am regularly in receipt of information obtained by acting against a particular person for more than one client. This includes acting against a particular person for a first, second and sometimes a third spouse and acting against a debtor for multiple creditors.
12.Our firm wishes to continue to act against [the mother]. To remove our firm would be to place [the father] at a significant disadvantage and extend the potential exclusions using the conflict rule thereby favouring opportunistic litigants.
The mother does not take issue with the contents of Ms Curtis’s affidavit save for at what point in the day Ms Curtis decided to retire from the proceedings. However, counsel for the mother concedes that nothing turns on that fact.
I should note at this juncture that counsel for the mother also conceded in her submissions that the mother’s case does not involve any allegation that Ms Curtis acted dishonestly or with malicious intent in her acceptance of the brief from the Department of Human Services (hereinafter “the Department”). She conceded that the connection between the child protection matter and the parenting case would not have been readily apparent from the face of the brief, involving, as it did, a different child and a different father. I accept counsel for the mother’s concession in this regard and am satisfied that Ms Curtis’s actions were the result of an innocent and honest mistake.
Relevant law
The substantive proceedings are brought under Part VII of the Act and pursuant to s 60CA. the child’s best interests will be the paramount consideration in a determination of those proceedings. However, for the matter which I am now required to decide the best interests of the child is a relevant consideration but not the paramount consideration (see Northern Territory of Australia v GPAO & JAW & Separate Representative (1998) 196 CLR 553). Counsel for the father agreed that the relief sought is entirely discretionary and that my discretion is largely unfettered save to the extent that matters are extraneous or irrelevant.
At paragraph [52-260], the Family Law and Practice Commentary (CCH) states:
One of the main features of the solicitor/client relationship is the privileged confidentiality of the communications, verbal or written, between the parties. The client has a substantial interest in the preservation of that confidence and a solicitor has a continuing duty to serve and protect that interest (see the New South Wales Solicitors Manual at para 2081).
The confidentiality between a client and his or her solicitor, in a family law context, can be threatened in a number of ways, for example:
·a solicitor acts for both a husband and wife who have adverse interests in the proceedings
·a solicitor who has acted for a husband and wife in a ``non-matrimonial'' matter is later approached by one of the parties of the marriage to act for them in a ``matrimonial'' matter
·a solicitor who acts for one party to the marriage and whose services are dispensed with by that party then takes up employment with a firm who is acting for the other party to the marriage
·a solicitor is related to one party of the marriage and so is related by marriage to the other party of the marriage.”
Further, r 8.03 of the Family Law Rules 2004 (Cth) states that:
A lawyer acting for a party in a case must not act in the case for any other party who has a conflicting interest.
Note: This rule does not purport to set out all the situations in which a lawyer may not act for a party.
It is immediately apparent that this case does not involve a ‘traditional’ conflict of interest problem as described above. Ms Curtis has not previously acted for the mother in any proceedings and neither has her law firm. In fact, she has acted against the mother in both sets of proceedings.
However, Halsbury’s Laws of Australia states the following:
[250-535] General duties to clients. The duties of a lawyer to his or her client may arise from contract law, tort law or the lawyer’s fiduciary relationship with the client. A lawyer has a duty to exercise skill and care in acting for a client and must act in good faith and with absolute fairness and openness towards the client. The client must be informed of everything which the lawyer knows will be of assistance to the client in relation to matters within the lawyer’s retainer. A lawyer has an obligation to avoid conflicts of duties and must not disclose confidential information furnished to the lawyer by his or her client. There is now general acceptance of the principle that a solicitor owes a duty of loyalty to the solicitor’s client or former client.
[250-540] Conflicts of duties. A conflict of duties may arise where a lawyer who owes a duty to one client undertakes a similar duty towards another client either in the same transaction or in a different or successive transaction. Where a lawyer has acted for one client in a particular transaction, the lawyer may be restrained from acting for another client against the lawyer’s former client in the same or in a related matter…a lawyer may act for different parties notwithstanding that a conflict of interests may arise, provided the lawyer has obtained the informed consent of each of the parties. Nevertheless, a lawyer should not appear as counsel for two clients whose interest in the matter before the court may conflict.
At the outset then I do note that whilst Ms Curtis may not be facing a traditional ‘conflict of interest’ problem, she may have placed herself in difficulty in terms of fulfilling her professional duties towards both her clients (the Department and the father). This is because, in accordance with the principles stated in Halsbury’s above, she owes a duty to the father to inform him of everything which she knows will be of assistance to him within her retainer; but she owes a (possibly conflicting) duty to the Department not to disclose confidential information furnished by them to her in the course of that retainer. It may well be impossible to reconcile these two duties.
The most recent case of the Full Court of the Family Court of Australia on the issue of a lawyer’s conflict of interest is the decision of Bransdon and Davis and Gilbert (2007) FLC 93-328. This was a property settlement case in which the trial court found in favour of the husband that land registered in the wife’s parents’ name was held subject to an equitable charge in favour of the husband and wife. The case of the wife and her parents was that the husband and wife held no interest in the property and all financial contributions were made by way of rental payments. The wife and her parents were represented by the same solicitors and counsel at trial. Counsel specifically told the court on the first day of trial that he held consistent instructions from the wife and her parents and was not in a position of conflict. On the third day of trial the wife’s father gave evidence that was inconsistent with the evidence given the previous day by the wife. Counsel subsequently withdrew and the trial continued with the evidence of the remaining witnesses. The wife and her parents were then given an opportunity to file written submissions through new and separate lawyers. The wife’s parents appealed on a number of grounds. The most important ground for these purposes was that the trial judge had erred in allowing the trial to proceed with the same counsel appearing for the wife and the wife’s parents i.e. because there was a prospective conflict issue between the wife and her parents.
The Full Court (Faulks DCJ, Coleman and Boland JJ) examined the relevant legal principles regarding this issue of the conflict of interest at paragraphs 46 – 62 of their judgment. The court drew a distinction between cases where the application was to restrain a legal representative who had acted for a client and obtained confidential information in the course of the retainer and who was now seeking to act for another party in circumstances where the confidential information obtained could potentially create a conflict of interest and the case at hand. The court held that “those cases [involving confidential information] do not have direct relevance to the principal issue raised on this appeal, that is, the ‘prospective’ conflict issue.” (paragraph 50).
In terms of the ‘prospective conflict issue’ the court focused on the possible breach of the lawyer’s duty to the court and examined the content of that duty:
51. The types of conflict of interest which may arise between a client and a legal representative are subject of exhaustive analysis by Austin J in Oceanic Life Ltd v HIH Casualty & General Insurance Ltd (supra). In discussing the law, his Honour noted that “[w]here it is alleged that a solicitor has acted improperly in representing more than one client in litigation, a surprisingly large number of principles may be brought into play”. His Honour noted these include the law of contract, the law of fiduciary duty, the law protecting confidential information, the law in respect of legal professional privilege, the law with respect to the solicitor’s duty to the court and a court’s discretion to supervise the conduct of its officers as well as “ethical principles developed and applied by a professional disciplinary body.” He also referred to principles which may be invoked if the solicitor receives gifts and the like which are not relevant to the issues to be determined in this appeal.
52. In discussing the duty to the court his Honour said:
“In addition to fiduciary duties and the duty not to misuse confidential information, a solicitor who acts in litigation owes a relevant legal duty to the court, as well as an ethical duty. The duty to the court arises from the court’s concern that it should have the assistance of independent legal representation for the litigating parties: see D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 LQR 63, 93. In the realm of conflicts of interest and conflicts of duty, the solicitor’s duty to the court may not be much different from his or her fiduciary duties to former and present clients. However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court’s practical approach to its supervisory discretions…”
The court went on to consider the judgment of Heenan J in Holborow v Macdonald Rudder [2002] WASC 265 and stated:
59. His Honour then went on to examine circumstances where an order was sought to restrain a legal practitioner from acting in proceedings, when there was no risk of disclosure of confidential information, and to identify what obligation was owed to a former client or to the court. Having recorded the fiduciary nature of the relationship between solicitor and client, his Honour referred to the legal practitioner’s “overriding” duty to the court.
60. Having referred to the principles enunciated by Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 his Honour then said:
“30. A feature which emerges from the decision of this Court in Afkos Industries Pty Ltd v Pullinger Stewart (supra), is that while a properly informed and advised client, not under any disability, may waive or ratify any breach of duty due to it by the legal practitioner, the practitioner’s duty to the court cannot be waived, so that if the particular disqualifying feature involves a conflict between the interests of the practitioner and his duty to the court which could give rise to a situation where the independent administration of justice may be put in jeopardy, the court will restrain the practitioner notwithstanding the wishes or interests of the client. However, it by no means follows that every conflict of interest between the legal practitioner and a client will give rise to a concurrent conflict of interest between the legal practitioner and his duty to the court, or, even where it does, that there is a risk that the practitioner will disregard his overriding duty to the court in favour of his client’s interest. It seems to me that if it can be demonstrated that there is a risk that a practitioner will disregard his overriding duty to the court that this will usually, if not always, require action by the court to avoid such a risk by preventing the practitioner from acting even if the relief is sought by an opposing party in the litigation. But these principles do not render counsel or solicitors generally examinable at the suit of their client’s opponents. The duty of the legal practitioner is not to his client’s opponent and he is not answerable to his client’s opponent. His duty is to the court and he is certainly answerable to the court and to his or her professional and disciplinary bodies.
31. Consequently, if an opposing party asserts that a legal practitioner should be restrained from acting for his opponent it is necessary for a clear case to be made that the practitioner concerned is in a position where he is fixed with an interest which conflicts with his duty to the court and that that interest is one of such a nature that the solicitor or counsel may fail in his overriding duty to the court…”
At paragraph 70 the Full Court therefore concluded:
We agree with the discussion and findings of Heenan J in Holborow v Rudder [2002] WASC 265 and adopt, with respect, his Honour’s view 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. We are not satisfied this case, for the reasons set out above, was a “clear” case.
It is apparent therefore that the ratio in Holborow’s case is applicable when one is dealing with cases which involve a situation where a practitioner is fixed with an interest which conflicts with their ‘overriding duty to the court’. In such a situation it is necessary for an applicant seeking to restrain a practitioner to establish a ‘clear case’ that:
a)the practitioner concerned is in a position where he is fixed with an interest which conflicts with his duty to the court; and
b)that interest is of such a nature that the solicitor or counsel may fail in his overriding duty to the court.
In the situation at hand, it is arguable that Ms Curtis is fixed with an interest which conflicts with a duty owed to the court. Her interest is in maintaining her two clients. However, if her duties to the court arise from the “court’s concern that it should have the assistance of independent legal representation for the litigating parties” (see above), it is arguable that the independence of Ms Curtis (or at least the appearance of her independence) is compromised by her ‘dual role’. Put in the language of Bransdon, the “independent administration of justice” may be put in “jeopardy” by the perception that the independence of counsel has been compromised. Furthermore, on a practical level, Ms Curtis may be placed in some difficulty as regards her ‘overriding duty’ not to mislead the court if judicial enquiries of her warrant a reply which would disclose confidential information passed to her as part of her retainer with the Department.
In relation to cases involving a conflict of interest arising from the possibility of a disclosure of confidential information, the leading authority appears to be the Full Court decision of In the marriage of L P and K D McMillan [2000] FamCA 1046 (Finn, Kay and Moore JJ). In this case, the wife appealed a decision of Wilczek J which restrained her solicitors from acting on her behalf in property and parenting proceedings. The restraint had been imposed because a non-legally qualified law clerk who had previously been employed by the solicitors acting for the husband and who had worked on his case, had moved to work as a secretary to the wife’s solicitor. At paragraphs 41 to 56 the Full Court traverses in some detail the authority on the law concerning restraints on legal practitioners. The following points in the judgment are of particular interest in this case:
a)Paragraph 41: the court quotes the decision of Frederico J in In the marriage of Thevenaz (1986) 11 Fam LR 95 (which it later approves), where he states:
“The problem, however, is that it is the practitioner’s duty to put at his client’s disposal, not only his skill but also his relevant knowledge, and if he is not prepared to make that knowledge available, he should not act.”
Also, “It is of the utmost importance that justice should not only be done but should appear to be done.”
This supports the point made above that Ms Curtis has placed herself in some difficulty because she should put at the father’s disposal all her relevant knowledge and she is unable to do so if she complies with the duty of confidentiality owed to the Department.
The court also goes on to state that Frederico J endorses the approach that, for a client to succeed in restraining a solicitor from acting there must be some evidence that confidential communications have been made to him by the party and there must be at least a theoretical possibility that it could be used against him/her.
b)Paragraph 43: the court quotes (with approval) Bryson J in the case of D&J Constructions Pty Ltd v. Head (1987) 9 NSWLR 118 where he stated that a stricter approach to restraint of practitioners (such as that laid down in Thevenaz) could be justified in the context of family law litigation:
“A more rigid rule than that stated in Rakusen’s case has been applied at other times…It would seem that in deciding the degree of control which it should adopt each court must to some extent interpret its own times and manners and the conduct which it should expect from or even fear from its practitioners. Some ages and some classes of business could well require a more ready apprehension of mischief than the Court of Appeal of England thought appropriate in 1912 or than I think appropriate here and now.
There was recent consideration of the circumstances in which a solicitor would be restrained from acting for a former client by the Family Court of Australia in In the Marriage of Thevenaz (1986) 11 Fam LR 95; FLC 91-748. That Court took the view that restraint is justified if there is a risk that confidential communications on relevant matters have been made by the party for whom the solicitor has ceased to act, even if the risk may be more theoretical than practical. 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; the 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 also that it is apparent that it is done, an appearance which would not survive any general impression that lawyers can readily change sides.”
c)Paragraph 54: the court concludes that:
“[w]e would support the application in this jurisdiction of the approach of Frederico J in Thevenaz (following Mills) which was adopted by Mullane J in Griffis and in Kossatz…We would do so for the reasons related to the sensitive nature of the jurisdiction which were referred to by Bryson J in D&J Constructions and by Rourke J in Magro and indeed also by Wilczek J in the present case.”
It is therefore apparent that the Full Court adopted a strict test regarding restraint of a solicitor in ‘conflict of interest’ cases in the family jurisdiction such that to restrain a practitioner an applicant only need establish:
a) a “prima facie” case as to the disclosure of confidential material; and
b) a “theoretical possibility” of use of that confidential information.
It appears that the strict test was justified solely by reference to the sensitive nature of the family jurisdiction.
A case which has specifically considered the removal of a practitioner in circumstances outside the traditional ‘conflict of interest’ scenario is T v L (2000) 160 FLR 63, a decision of Chisholm J. In T v L (supra) a father applied for the removal of the children’s representative appointed in respect of his two children. He did so on the ground that a former judge of the Family Court who had made adverse findings against him in custody proceedings in 1993 was associated with the children’s representative’s firm of solicitors as “special counsel”.
Chisholm J considered the authorities on the traditional concept of a ‘conflict of interest’ (those which are discussed in the case of McMillan (supra)) and stated:
The authorities contain an interesting discussion of the extent to which the subject matter of family law makes it appropriate to take a particularly cautious approach. Arguably the Thevenaz line of authority is appropriate in family law matters, even if it is not followed in other areas. The features of family law that are said to be distinctive seem to me to be three. First, in the context of confidential information, because many aspects of the parties’ lives must be taken into account by the court, especially in children’s cases, a great deal of factual material could be possibly relevant…Thus there may be a greater potential for the disclosure of relevant confidential information in these cases than in cases where the relevant factual material is more limited. Secondly, it is also suggested that in family law matters emotions typically run high and the decisions can have profound consequences for the lives of the parties and their children. While this is true, it is not immediately obvious that this characteristic should affect the courts’ approach to lawyers’ conflict of interests. Thirdly, determinations that have to be made often necessarily involve forming and articulating views about peoples’ personal qualities. The second and third of these features of family law certainly arise in the present case.
The judge stated at paragraph 97 that adapting the authorities on conflicts of interest to the present case:
I think I should consider whether a person in the position of the applicant father would have a reasonable apprehension that the child representative might be influenced by the former judge, whether deliberately or unwittingly, in the child’s representative’s conduct of the matter on behalf of the children.
The judge went on to consider this issue under the heading of ‘whether child representative should be removed on account of bias’. In examining this issue the judge looked at the issue of the children’s interest. He had already enunciated that whilst the children’s interests were not paramount in deciding the father’s application, “the best interests of the child will normally be a matter of great and probably overwhelming importance in such decisions” (paragraph 52). Whilst the children would be disadvantaged by any delay, he stated, at paragraph 118:
on the other hand, their interests would not be promoted by a hearing that could be reasonably perceived as unjust. It is in their long-term interests, in my view, that any orders made should be according to justice. Otherwise, there would be less likelihood that the orders would be respected, and a greater likelihood that the dispute would fester. On balance, I do not think that the children’s interests would be promoted by refusing to make the order sought by the father.
At paragraphs 119 and 120 he stated his conclusion:
[119] It is necessary to balance all these matters. I consider that a reasonable person in the father’s position, learning that the child representative, a partner in a small family law firm, has as “special counsel” to the firm a judge who had made an adverse finding against the father in earlier proceedings, a finding on the very matter in issue in the proceedings, might reasonably feel that the cards were stacked against him. That is, he might reasonably feel that the child’s representative would be biased against him. In those circumstances, independence being essential to the role of the child’s representative, he might reasonably feel that justice would not be done. I have taken into account the unfortunate consequences that would be entailed if the child’s representative is to be removed.
[120] In the end, having weighed up the matters to which I have referred, including the interests of the children, I have concluded that the principle that justice must be seen to be done is of such importance that in this case it is necessary that the child’s representative be removed.
If one applied the test adopted by Chisholm J to the case at hand, it could be argued that the mother has a “reasonable apprehension” that Ms Curtis may be influenced by the information obtained (which would not be available to her ordinarily) in the child protection proceedings. The parenting proceedings would then be perceived to be unjust by the mother (rightly or wrongly) which would not be in the child’s long-term interests.
Counsel for the father, referred me to the decision of Nettle J in Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429, and in particular, to the following passage at paragraphs 111 to 114:-
111.I turn finally to the question of public policy and the third way in which the application was put.
112.In Grimwade v. Meagher, Mandie J held that the court has inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and, as part of that jurisdiction, to prevent a member of counsel appearing for a particular party in order that the jurisdiction should not only be done but be seen to be done.
113.The objective test to be applied, his Honour held, is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that counsel be prevented from acting; giving due weight to the public interest that litigants should not be deprived of their choice of counsel without good cause.
114.The decision has been followed and applied by other judges of this court, by judges of the Federal Court, and by a judge of the Western Australian District court. If it were necessary in order to decide this application, I would, with respect, also follow the decision.
I, with respect, agree with Nettle J’s statement of the law and I apply it in this case. It differs from the position described by Chisolm J in T vL (supra) which looked to the reasonable person in the position of the party seeking to enjoin a person from ongoing participation in a proceeding.
Conclusion
This is a difficult case. On the one hand, if I accede to the mother’s application the father will be required to change solicitors through no fault of his own. I am satisfied that this will have financial consequences for him. He will also have to establish a rapport with and acquire confidence in a new firm of lawyers mid-way through proceedings. It is a common enough occurrence but not something undertaken by the father before and he is likely to feel disadvantaged. Indeed, it may be that there are no further solicitors or lawyers available to act for him in Kyabram (although it was not submitted on the father’s behalf that it would be impossible for him to obtain alternative lawyers). He may well have to retain solicitors outside Kyabram. Of course parties must not be permitted to obtain the disqualification of solicitors, or judges for that matter, lightly and otherwise than when the interests of justice require it to occur. On the other hand, viewed objectively it is easy to see how the mother feels aggrieved and, I am satisfied, that she has no prospect of recovering from that grievance. However, it is not a subjective test insofar as it is the perception of a reasonable person observing the proceedings which I must take into account, not the actual feelings of the mother.
For me, the most distinguishing feature in this case is that the lawyers’ other client was a body constituted under State legislation responsible for the protection of children in Victoria. The lawyer with which this application is concerned was retained to prosecute the case for the Department of Human Services against the mother. With the onerous obligations of the Department come sources of information and corporate knowledge which is not in the public domain, not accessible to the mother nor readily accessible by anyone else for that matter. Furthermore, it is put, and accepted by counsel for the father, that in the course of Ms Curtis taking instructions from the Department, it is to be expected that she would have had candid and frank discussions with protective workers about matters which could be proved or not proved, which may or may not be put in evidence including, but not limited to, the details of the notifier. It is in respect of taking instructions for the Department that the mother perceives that Ms Curtis has had access to information not accessible to the public or even to herself.
It is submitted by counsel for the father that there is no ‘clear’ or ‘concrete’ evidence in this case of the mother suffering real or unequivocal prejudice as a result of any information obtained by Ms Curtis in the course of her retainer with the Department. The mother, counsel says, cannot point to anything specific which Ms Curtis may know which could be passed on to the father and give him an unfair advantage. I am left, he says, with only inferences as to what may or may not have been imparted to Ms Curtis. In my view, whilst this submission may be correct, in this particular case I consider it appropriate and necessary to act upon the inferences which I can legitimately draw as to what might have been imparted to Ms Curtis in the course of that retainer. It is a corollary of the type of proceedings that we are dealing with that the mother cannot point to any ‘clear’ evidence about what may or may not have been imparted to Ms Curtis. As I have stated above, such information, by virtue of the nature of child protection proceedings, is not available to the mother. To apply a test therefore, whereby the mother would have to point to concrete evidence of prejudice would, in my view, fail to promote the principle that justice must not only be done but be seen to be done in some of the most sensitive of cases heard within the family law courts. This mother would be placed at an unacceptable disadvantage in being required to point to evidence which she simply does not have access to. For these reasons I decline to accede to counsel for the father’s submission that I cannot act upon inferences of prejudice in this case. I can, and in my view must, in order to protect the integrity of the judicial process in this particular case.
Ultimately therefore, I decide the matter consistently with the concept of justice being seen to be done and the responsibility of this court to maintain the confidence of the public, including litigants. I am satisfied that a reasonable person observing the proceedings (as opposed to a person in the position of the mother) would apprehend the father has an unfair advantage by virtue of which, in the language of Chisolm J,[8] the cards are stacked against her.
[8] T v L (2000) 160 FLR 63
Whilst the father’s advantage may be more apparent than real, I am satisfied that to refuse the mother’s application would offend the public interest in preserving confidence in the administration of justice by this court, particularly having regard to the sensitive nature of parenting proceedings. So, notwithstanding the recognised hardship to the father, I will enjoin Morrison and Sawers from continuing to act for him.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 13 August 2008
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