Dwyer & Brent & Anor - [2010] FMCAfam 1224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DWYER & BRENT & ANOR

[2010] FMCAfam 1224

FAMILY LAW – Family law and child welfare – the Family Law Act 1975 (Cth) and related legislation – costs – costs against solicitor.

Family Law Act 1975, ss.11F, 117(2A)
Federal Magistrates Court Rules 2001, rr.4.03(2), 4.05(1), 21.07.

Cassidy v Murray [1995] FamCA 91; (1995) FLC ¶92-633; (1995) 124 FLR 267; (1995) 19 Fam LR 492

Applicant:

MR DWYER

Respondent:

MS BRENT

Third Party:

GLENN THEXTON

File Number:

MLC 7793 of 2010

Judgment of:

Riethmuller FM

Hearing date:

10 September 2010

Date of Last Submission:

10 September 2010

Delivered at:

Melbourne

Delivered on:

10 September 2010

REPRESENTATION

Counsel for the Applicant:

Ms Rajak appearing as Duty Lawyer.

Solicitors for the Applicant:

Mr Pavone of Counsel

Counsel for the Respondent:

Ms Rajak appearing as Duty Lawyer.

Counsel for the Third Party:

Mr Thexton appearing in person.

ORDERS

I order that Mr Thexton pay the applicant’s costs fixed at $3300.
I order that the operation of the order be stayed for 30 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7793 of 2010

MR DWYER

Applicant

and

MS BRENT

Respondent

and

GLENN THEXTON

Third Party

REASONS FOR JUDGMENT

(As Revised from Transcript)

This is an application with respect to costs. The applicant seeks costs against the former solicitor of the respondent, Mr Thexton of Thexton Lawyers.
The matter has had a difficult history. The parties are the parents of a young child. There are issues between them which, it seems, relate largely to physical discipline of the child. It had been an issue that had not been resolved between them, as between themselves, and time with the child had been denied by the mother of the father. Correspondence had been provided to her on 19 July and 9 August, with respect to these issues, which correspondence had not been answered. It seems that she had had attendances upon a Legal Aid lawyer and another solicitor other than Mr Thexton, prior to last week, and at best had not had sufficient advice and direction to be able to have a lawyer in place on Legal Aid in a timely manner. I do not wish to dwell on that aspect of the matter because I do not know all of the detailed facts and circumstances.
However, the respondent did attend upon Mr Thexton last week. On Friday of last week, he filed a notice of address for service, placing himself on the record as the solicitor for the mother. At that stage, no response had been prepared, no affidavit had been prepared. The father sought interim orders to see the child and long term orders. It was clear from the father’s material that there had been correspondence and the case was succinctly set out in his affidavit. Mr Thexton said that he had sent home the Legal Aid form with his client. He said it had not been fully completed and had not yet been lodged, and therefore he was not in funds. At that point, he did not prepare material and came before the Court, he says, as a friend of the Court to assist in the matter as his client was concerned about attending in person.
It seems to me that once a solicitor is on the record and acting for a party, they are obliged to conduct themselves and the litigation in the manner ordinarily required of a reasonable and competent solicitor. If a solicitor is in a position where they are acting for a party and on the record and they do not have funds (and so do not wish to carry out the work), or are not placed in a position where they can carry out the obligations of a reasonable and competent solicitor, then the answer is clear and that is to cease acting.
In this case, the client had provided a bundle of notes answering the Applicant’s affidavit. I have not seen the content of those notes. It is said that they do not address all of the father’s affidavit but clearly (from what has been said) they do address at least part of the father’s affidavit. The bundle was not merely one or two pages: this was apparent from seeing it at the bar table when it was passed back to the client during the course of yesterday’s hearing.
The solicitor did prepare a Notice of Risk of Family Violence. Importantly, it contains an allegation that:
The applicant father physically beats and verbally abuses the child to the extent that the child is returned to the respondent mother, having spent time with the applicant father, with bruising. And these incidents had been reported to Child Protection by the child’s treating medical practitioners.
It also sets out that:
The applicant father has a history of abusing alcohol and he is a daily user of cannabis. He does not have regard for the presence of the child when drinking alcohol or using cannabis.
And:
The applicant father physically beats and verbally abuses the child –
at part G.
The nature of the allegations set out in the Notice of Risk of Family Violence are very concerning, particularly for such a young child (the child was only born [in] 2006). They give rise, on a reasonable reading of them, to questions as to whether or not this is a child who has been significantly beaten and abused and would be suffering very real danger even to be placed in the presence of the father. That is: psychological danger and certainly physical danger if in his care at all.
It transpired that the instructions upon which this were based were that the father smacks the child and that the mother believes that this physical discipline is not appropriate. To my mind, this is a completely different order of magnitude from the nature of the allegations as put in the Notice of Risk of Family Violence. Had it been a case about whether or not parents should smack their children, on the first Court date, I doubt that I would have ordered an urgent intervention by a family consultant to interview the parents and the child in order to determine the extent of the fears of the child towards the father, pursuant to s.11F. Given the terms of the Notice of Risk of Family Violence, it seemed that there was little option but to have such an urgent report or, alternatively, deny the father time absolutely with the child until a proper report could be placed before the Court.
Sadly, this Court sees too many cases where such allegations are not only made but, it turns out, are entirely true and children suffer severe psychological and physical injuries, as a result of behaviour of the type that is encompassed by allegations of beating a child. I do not accept the submission that describing an allegation of “smacking” as being synonymous with “physically beats” and I do not accept that any reasonable legal practitioner would see it as being synonymous. I note that the Notice of Risk of Family Violence was signed by the client but it was prepared by the lawyer.
It is not suggested that the client has a good grasp of legal proceedings. The family report writer observed the child with the parents and, importantly, observed that the child clearly wished to have a relationship with the father, hugged the father and appeared, in many respects, to have a loving relationship with the father, entirely inconsistent with a father who would ‘physically beat’, and ‘verbally abuse’, a child. The mother advised the family report writer that she had been concerned about smacking and it became clear that her instructions were not that beatings had occurred.
On the first Court date, there were difficult exchanges between the solicitor for the mother and myself. I have reflected upon those and, particularly, whether or not they were simply very forthright, perhaps garrulous, submissions on behalf of the mother. My memory of them is, to my mind, that they went further than that and certainly displayed a lack of direct and frank responsiveness to questions from the bench. Indeed, at one point I had to turn away and wait until the solicitor was prepared to answer a question that I had asked. This is difficult to reconcile with the solicitor’s submissions that he came along as a ‘friend of the Court’, an amicus in a difficult situation, and difficult to reconcile with the Notice of Risk of Family Violence that was filed and has subsequently been withdrawn, now that the mother has a new solicitor.
No affidavit was filed by the mother, despite rr.4.03(2) and 4.05(1). It was not suggested that the mother’s instructions could be put to the Court, with an undertaking to file material at a later time. Attempts were simply made to have the matter put off. It must have been clear from the draft response, that was ultimately filed, that no proposal was put for the father to have time with the child and the severe allegations of child abuse and beating were such that, in the absence of some further inquiry, a Court would have felt obliged to adjourn the matter without the father seeing the child. Whilst this may well have achieved the primary desire of the mother at that time, it was a long way from justice and certainly would have thwarted the father having a hearing on the first return date, to which he was entitled and would have achieved, in default, had it not been a matter involving a child. By saying that, I refer to other jurisdictions in the Court of a more commercial and monetary basis, where a failure to provide more material at the first date would not have stopped the Court proceeding.
However, cases concerning children are in a very different category and the significant obligations on the Court to protect children in the orders that the Court makes leads to a much more conservative approach. This, likewise, means that reasonable and competent practitioners before the Court must do all reasonable things to ensure that cases are run properly and reasonably so that delays are not imposed in circumstances of high conflict. Similarly, it is very important for practitioners to ensure that the material put before the Court is a frank and reasonable representation of the client’s instructions and not cast in a manner that is likely to further inflame what are inevitably very emotive and difficult proceedings for parents concerning the people they love most in the world, their children.
The solicitor in this case did not have time to see his client although the seriousness of the case must have been apparent on the first court date. He had a paying client that afternoon and he did not want to cancel that client. He said he was then working on other matters that night. He says the family consultant took longer to spend with the client than he had expected, that is, most of the morning, using time he had hoped to spend with the mother. It is ordinarily the case that on a s.11F report, the clients are required to be available most of the morning, if not all of the morning, as the report writer moves through all of the interviews and processes necessary to provide an urgent report to the Court. It was not realistic to think that any significant time would be available in the morning.
The interactions between the solicitor and his client, when the matter was finally adjourned yesterday, were also matters that caused the Court real concerns.
I accept, for the purpose of this application, that the client did not make her way to the bar table of her own volition and that she was prompted by the solicitor seeking to have her come forward to speak to her. She came forward though, all the way to the bar table, past the place where clients would ordinarily sit in the practice of the Courts in Melbourne. Having heard the solicitor, I accept that he was attempting to have her return to a place where clients would ordinarily sit and not, at that point, simply intending to stop her from speaking to the Court. It became apparent to me, however, from her demeanour at that point, that she was distressed and desirous of speaking to me directly. I not only allowed that but directed the solicitor not to interfere with that, so as to allow the client that opportunity. It was apparent to me, at that point, that there was a very real risk that the client was deeply concerned as to the manner in which the case had been running and whether or not she had been receiving a fair hearing. She did feel that way. She had provided material to the solicitor prior to the appearance on that day. At that point, I directed that she be allowed to see the duty lawyer. That could not be achieved late yesterday afternoon but could be achieved this morning. The duty lawyer had obtained instructions. It is a case that has collapsed down to one primarily about discipline alone, and a case that has settled without the need for Court time on the substantive issue. On the material now before me a case that, it seems to me, would not have necessitated the application of such valuable family report resources as to order an urgent s.11F report, if the mother’s concerns were reasonably or frankly put at the outset.
In reality, the s.11F report was ordered urgently because of the lack of material and the strength of the allegations in the Notice of Risk of Family Violence. Section 11F reports are a precious resource of the Court. There are less than four available to me in a duty list of over

60 matters. They are not a resource that is generally available to all matters and therefore not a resource that clients would ordinarily expect to have access to in more straightforward matters.
The result of the way the case has been conducted has been that the counsel for the father has now had to attend on three separate days. His fees are $1650 per day. Having regard to the scale, and the seniority of counsel, this appears to me to be a very reasonable fee in the circumstances. The applicant seek costs in the sum of $3300, being two days’ fees on the basis that properly managed, this was a one-day interim matter with directions and that that is what has ultimately occurred today. Instead, it has taken three days.
I have regard to the legislation and the rules (see Cassidy v Murray [1995] FamCA 91; (1995) FLC ¶92-633; (1995) 124 FLR 267; (1995) 19 Fam LR 492 per Fogarty, Kay and Hase JJ).
Section 117(2) and (2A) of the Family Law Act 1975 states
117(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Rule 21.07 of the Federal Magistrates Court Rules 2001 states:
(1)   The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a)    to be incurred by a party or another person; or
(b)    to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2)   A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a)    to attend, or send another person to attend, the hearing; or
(b)    to file, lodge or deliver a document as required; or
(c)    to prepare any proper evidence or information; or
(d)    to do any other act necessary for the hearing to proceed.
(3)   An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4)   The order may provide:
(a)    that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b)    that the lawyer pay the costs, or part of the costs incurred by the other person; or
(c)    that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5)   Before making an order for costs, the Court or Registrar:
(a)    must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b)    may order that notice of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.
This is not an ordinary case, it is exceptional. The conduct of the solicitor, in my view, has not been proper. It falls within r.21.07 in a number of respects. Most significantly, the solicitor not being in a position to at least put a proper summary of his client’s response and filing a Notice of Risk of Family Violence that inflamed rather than clarified the issues are default and misconduct.
In the circumstances of the case, I am persuaded that the conduct of the solicitor is such that I ought to order the solicitor to pay two of the three days of costs of the applicant. I therefore order that Mr Thexton pay the applicant’s costs fixed at $3300, the operation of which will be stayed for 30 days.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 8 November 2010