El v De and the Secretary, Department of Family and Community Services

[2015] NSWDC 59

District Court

New South Wales

Medium Neutral Citation:	In the matter of a referral of a solicitor to the Law Society of NSW; EL v DE and the Secretary, Department of Family and Community Services [2015] NSWDC 59
Hearing dates:	30 March; 2 April 2015
Date of orders:	13 April 2015
Decision date:	13 April 2015
Jurisdiction:	Civil
Before:	Knox SC DCJ
Decision:	Confirm the orders made approving the memorandum of consent orders on the substantive proceedings. Order that the solicitor for the Plaintiff, George Potkonyak pay the costs of the paternal grandmother of and incidental to the proceedings commenced upon the filing of the Summons Commencing an Appeal by the Plaintiff mother on 3 November 2014 in the usual way, such costs to be as assessed or agreed. Direct that the Registrar forward a copy of the following documents to the Law Society of NSW: (1) a copy of these remarks; (2) a copy of the mother’s affidavit sworn 27 March 2015; (3) a copy of the written submissions of Mr Potkonyak; (4) a copy of the transcript of the proceedings in this matter of 30 March 2015; and (5) a copy of the District Court file in these proceedings.
Catchwords:	CHILDREN – referral of solicitor to Law Society of NSW in care and protection proceedings – failure to provide relevant material – filing of selective material creating misleading impression to Court – costs in care proceedings – costs against solicitor personally
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 ss 88, 90, 91 Civil Procedure Act 2005 s 99 Family Law Act 1975 s 117 Legal Profession Act 2004 s 347
Cases Cited:	Campbell [2011] NSWSC 761 Law Society of NSW v Foreman (1994) 34 NSWLR 408 SP v Department of Community Services [2006] NSWDC 168 Wentworth v Rogers [1999] NSWCA 403
Texts Cited:	G E Dal Pont, Law of Costs (3rd ed, LexisNexis Butterworths, 2013)
Category:	Principal judgment
Parties:	Plaintiff Mother – EL First Defendant Paternal Grandmother – DE Second Defendant – DoFACS Independent Legal Representative for the child S
Representation:	Plaintiff – Mr Potkonyak of Capellia Legal First Defendant - Ms Mowbray of Verekers Wollongong Lawyers Second Defendant, Secretary DoFACS – Ms Neville of counsel instructed by the Crown Solicitor’s office Independent Legal Representative – Ms Saw of counsel instructed by Legal Aid Commission of NSW
File Number(s):	2014/323331
Publication restriction:	None. Parties and children have been anonymised.

Judgment

Issues

1. The issue in the substantive case concerns the parenting and care arrangements to be made for the child SL (“S”), born 10 October 2009 (currently aged 5½).

2. As a result of documents filed during the hearing and the submissions made, the conduct of the solicitor for the mother, Mr Potkonyak, became a further issue, in particular, to determine whether his overall conduct should be referred to the Law Society of NSW.

History

3. The mother, EL (“the mother”) is from Southeast Asia and is aged 37. She is currently an invalid pensioner. She came to Australia having met the father on an internet dating site. Shortly after she arrived in Australia, she became pregnant with S. The mother and the father separated in circumstances where AVO proceedings were involved, after which the mother went to a refuge. After S’s birth, the mother suffered depression and appeared to have a breakdown. After being discharged from hospital, she again went to a women’s refuge, accompanied by S.

Prior proceedings

4. The mother and child received intensive family support for a period, following which the Department of Family and Community Services (“DoFACS”) considered that S was at risk of physical and emotional harm requiring alternative interim care arrangements. S was placed in foster care for a short period. Proceedings were instituted in the Children’s Court at Sutherland. On 6 November 2009, the Children’s Court found that S was in need of care and protection. On 20 November 2009, S was placed with the parental grandmother and thereafter there were contact arrangements put in place between S and the mother.

5. On 28 May 2010, final orders were made allocating parental responsibility for S to the paternal grandparents, DE and TE, until S attained the age of 18 years. For all effective purposes the full-time carer of S is the paternal grandmother, Ms DE (‘the paternal grandmother”). Ms DE is aged 58 and is a retired nurse who now lives with her husband in the Illawarra region.

6. In November 2011, the mother filed a s.90 leave application in the Children’s Court seeking restoration of the child to her care. That application was dismissed on 4 May 2012. At that time, the interim arrangements were confirmed in final orders made in the Children’s Court on 4 May 2012.

7. Orders were also made for the mother to have contact with S for a minimum of 3 hours per week, with contact to occur in the mother’s home and to be unsupervised, with such orders to remain in force until S attained the age of 5 years. Orders made on 4 May 2012 note that after S turned 5, the mother and paternal grandmother were to negotiate contact time, and, failing this, to participate in mediation.

8. There were various incidents between the mother and the paternal grandparents. In March 2014, the paternal grandmother sought to make arrangements for contact. To that end, Ms DE organised a mediation with the mother at the family dispute centre which the mother did not attend. Although the mother was due to resume contact at a play centre, again she did not attend.

9. On 3 June 2014, the mother filed a further s.90 leave application seeking rescission of the previous orders. That application came on for hearing on 22 October 2014, when leave was refused and the application was dismissed.

10. On 3 November 2014, the mother filed a summons seeking leave to appeal against the dismissal of that application. Leave is required under s.90 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”).

Evidence

11. The transcript of the prior Children’s Court proceedings was admitted into evidence pursuant to s. 91(3) of the Act. That transcript is contained within the tender bundle.

Current contact arrangements

12. The father lives in the Illawarra area and has supervised time with the child each weekend from Saturday to Sunday. No issues are raised in relation to his current contact. Contact did not take place for a year but has resumed in recent months.

13. Here, S, the child subject to the application, had been living with her paternal grandmother for over five years and almost since her birth. S now attends school. There was no evidence other than that the child is properly looked after and cared for in her current circumstances with her paternal grandparents. There was little or no evidence to support a finding of “a significant change in any relevant circumstance since the care order was made or was varied” as is required under s.90(2A) of the Act. DoFACS and the current carer, the paternal grandmother, as well as the Independent Legal Representative for S, all submit that, given the absence of evidence as to any substantive change in circumstances, the mother had little or no chance of succeeding in this application.

14. The court file indicates that at a case management mention on 18 February 2015 (at which Mr Potkonyak was present), Judge Olsson indicated that there was no evidence filed on behalf of the mother.

15. All these matters become relevant as to costs (see paras 48 to 53 herein).

Consent orders in substantive proceedings

16. After the first day of the hearing, consent orders were made, effectively allowing the appeal insofar as orders for contact had been made.

17. That interim arrangement envisaged under the consent terms provided for an ongoing contact regime between the mother and the child. Submissions were made in relation to the decision of Slattery J in Campbell [2011] NSWSC 761 in particular paras [38] – [59] as to the legislative policy behind the leave requirement specified under s.90(1) of the Act. As re-drafted, the terms proposed a variation to the Children’s Court orders to enable the parties to have independent supervision of that contact through the Catholic Care Supervised Contact Centre. The orders were approved at the end of the first day of the hearing. Declarations were also made in relation to the matters taken into account under s.90 (2) of the Act and the change of circumstances constituted by the cessation of contact to enable the supervision arrangements to be altered.

18. Having observed the parties in the courtroom during the hearing and having read the affidavits earlier filed, I think it important that any supervision of the mother’s contact with the child take place in an independent setting.

Involvement of mother’s solicitor, Mr Potkonyak

19. Mr Potkonyak appeared for the mother in these proceedings and at the earlier proceedings in November 2014. At the outset of the hearing, Mr Potkonyak indicated that the mother’s application was for leave to be granted pursuant to s.90 of the Act, namely, to permit an application for leave to apply to vary or rescind orders previously made.

Allegations against mother’s former solicitor, Mr D

20. Mr Potkonyak filed and read an affidavit of the mother sworn 27 March 2015 (exhibit 7). That affidavit raised serious questions about the conduct of the mother’s previous solicitor, Mr D. Mr D’s file had been subpoenaed at Mr Potkonyak’s instigation.

21. The file had been provided to the District Court Registry on 18 March 2015 and made available to Mr Potkonyak prior to the commencement of the hearing. Those file notes were available to Mr Potkonyak when he prepared the affidavit of the mother sworn 27 March 2015.

Submissions

22. Mr Potkonyak had clearly read Mr D’s file as is indicated by his, Mr Potkonyak’s, written submissions which he handed up at the outset of the proceedings.

23. He was critical of what he regarded as the established practice in the Children’s Court and the first stages of the proceedings for a care order - which he called “establishment proceedings” as constituting “an unlawful practice” and (later) as an “illegitimate practice” (transcript page 16). His complaint, as I understand it, was that where a parent consents in proceedings that a child is in need of care and protection, but without admitting any facts, then the parent has to prove or address issues relating to the original removal when nothing has been proven in the earlier and original proceedings (transcript page 8).

Criticism of mother’s previous solicitor

24. Mr Potkonyak then went on to submit that the original Children’s Court finding in this case was on a purported “consent without admission” basis following the appearance by Mr D on behalf of the mother. Mr Potkonyak said that Mr D was effectively without instructions from the mother when he had acted previously.

25. Mr Potkonyak developed his argument on the basis that the mother never appeared in Court and that nobody had ever explained to her what was taking place in the Children’s Court at that time (see transcript page 7).The submissions go on to detail further problems with the mother and her lack of understanding of the proceedings and conflicting instructions given to her by the staff – presumably of the hospital or refuge where she was recovering after the birth of S.

26. The submissions include the following paragraph:

“12.   Documents subpoenaed from the solicitor who represented the mother in 2009/2010 and annexed to the mother’s affidavit, have no record of the solicitor visiting the mother in hospital in order to take instructions or to explain the Children’s Court proceedings. However at page 4 of the mother’s affidavit is a letter from the solicitor to Legal Aid informing them of his purported meetings with the mother and the hospital staff.”

Other criticisms contained within written submissions

27. In addition to the allegations made against the mother’s former solicitor, Mr D, Mr Potkonyak’s written submissions make a series of accusations against other individuals, government bodies and Courts, as follows:-

1. At par 8 on page 2, he states that the “Secretary is … spending government money by taking sides in a clearly family dispute.”

2. At par 13 on page 3, he states that the Children’s Court “… handed to the secretary, on a platter, the finding that S was a child in need of care and protection”.

3. At par 14 on page 3, he states that the staff at the refuge were “… more interested in getting evidence of the mother’s inexperience in baby care rather than genuinely trying to help and teach her”.

4. At par 24 on page 5, he states that “… the grandmother appears to be determined to break the bond between S and her mother.”

Submissions to Court by Mr Potkonyak

28. The argument was then developed that, pursuant to s.90 (6) of the Act, the mother had an arguable case on her leave application in that the mother claimed she had not been consulted at all. Mr Potkonyak said there was “credibility in her claim that she was not consulted at all...”

29. Counsel for DoFACS summarised in Court the essence of the assertions made by Mr Potkonyak at page 7 of the transcript, that “the mother made some allegations that she was not advised, that the solicitor acted without instruction and consented…”

30. Following these remarks by counsel for DoFACS in Court, Mr Potkonyak asserted (transcript page 8) that the mother’s case was “not about (the) lawyer. He may have made notes, he may not have made notes about it. We didn’t find any in his material…”

Allegations against former solicitor

31. Counsel for DoFACS, Ms Neville, raised the concern that if the matter did involve the criticisms of Mr D’s conduct, then he, Mr D, ought to be offered the opportunity to comment given the seriousness of the alleged conduct. Thereafter there was an exchange with the Court querying what the effect of the situation was if the mother was right in her case, namely, that there had either been no proper legal representation of her by the then solicitor Mr D or the absence of proper legal representation in any effective manner by virtue of the fact that: –

1. it was not explained to her what was happening; and

2. her rights to participate were not explained to her.

32. The Court emphasised (in Mr Potkonyak’s presence): –

“if those are right, and I emphasise and underline the if, because I haven’t seen the mother’s affidavit and nor have I seen any response in the subpoenaed material from Mr D’s file let alone anything from Mr D in reply. But is there not an issue which needs to be considered under the arguable case provisions of ss.90(2)(a) and 90(6) as to whether the original proceedings were in fact vitiated or invalidated?” (transcript page 10)

33. After those submissions, I was asked to read various documents to give background to the application and the evidence. I asked the parties whether I should read the documents produced by Mr D (transcript page 24) and the following exchange occurred:

“His Honour:      … is everybody content with me reading that?

Mr Potkonyak:      No your Honour.

His Honour:       Sorry?

Mr Potkonyak:   Yes I have attached most of these documents to the mother’s affidavit.

His Honour:       Okay well I will read these as well.”

Absence of relevant documentation: selectivity

34. Counsel for DoFACS, Ms Neville, then referred to Mr D’s subpoenaed file and a file note record created by Mr D on 27 May 2010, in which was a record of a personal attendance by him on a person called Gabby Pilkington, a worker at the refuge where the mother was living at the time the proceedings were on foot. Counsel correctly pointed out that that file note record clearly indicated that there was a discussion with the mother in the presence of a support person about the fact the child was with the grandmother; further, that the Children’s Court proceedings were on foot. Counsel went on to submit that it was significant and concerning that that file note record was not put before the Court as an annexure to the mother’s affidavit where she contends that she was not advised of the proceedings.

35. References were also made to the relevant doctor’s opinions as to whether the mother was too unwell to be taking care of the child, and the mother accepted that according to the solicitor’s records. It was also noted that the mother did not agree that the child should be with the paternal grandmother but accepted that the solicitor explained to the mother her entitlement to make a s.90 application.

Response and explanation by Mr Potkonyak

36. When I returned to Court after reading the material, I raised with Mr Potkonyak the issue of Mr D’s file note of 27 May 2010, and the absence of any reference to it in the mother’s affidavit. He said that he had been photocopying material from the subpoenaed material and that some of them “…hadn’t come through. But the intent of that affidavit was not to prove any wrongdoing by any lawyer but rather to establish how the establishment case was reached on a consent without admission basis”.

37. He reiterated his view that this process of obtaining consent without admission was not a legitimate practice in the Children’s Court (transcript page 29). He also said (transcript page 30) “I’m looking for an opportunity to take such one matter to this court and to the Court of Appeal.”

38. I then reminded Mr Potkonyak that the mother’s affidavit he had prepared said “I have no recollection whatsoever of my solicitor JD (nor) seeing him once when I was hospitalised”. That appeared totally contrary to the essential thrust of his case which was embodied in the affidavit which had been filed on the mother’s behalf. That was to the effect that the mother did not have proper legal representation, nor that the process was properly explained to her. I also pointed out to Mr Potkonyak that notwithstanding all the discussions which had proceeded in his presence earlier that morning in Court, he had not informed the Court of Mr D’s file note (transcript page 31).

39. Mr Potkonyak then said :

“Your Honour, I can apologise and crawl on the ground but the thing will not change because I really do not know how that happened. I mean I would have been an idiot so to speak to deliberately withhold a piece of paper. If I wanted to do that I could have stolen it from there not leave it in the file did I attach to the affidavit so the other parties can see what was in the subpoenaed material.”

Contents of previous solicitor’s file notes

40. It is clear from the file note records that the previous solicitor Mr D had in fact attended on the mother. She had the benefit of a support person with her who was familiar with her; further, that the solicitor had explained to her the various processes and obtained her instructions in respect of the proceedings; that occurred the day before the final orders were made by the Court and that in those circumstances, the advice given provided the necessary background to the making of the final order.

41. Mr Potkonyak was also reminded that he had let the Court proceed to consider the matter on the basis that there was an allegation of an error or negligence against a senior practitioner - who is an accredited specialist in the family law/childcare area - when there were documents which directly contradicted his position. Again, Mr Potkonyak repeated his complaint about the practice in Children’s Court proceedings in this area proceeding on a consent without admission basis.

42. Mr Potkonyak was informed that, regardless of what his intention was, it seemed that he had proceeded on the basis of providing what was effectively highly selective evidence to ensure his argument could be raised in the District Court or a higher court when that erroneous evidence was incomplete, misleading in its overall effect, and detrimental to another practitioner. Further, that his submissions left the Court with a completely erroneous view notwithstanding his ethical duties to the Court, in circumstances where he must have known about the documents evidencing the proper actions that Mr D had taken.

Costs

43. After the consent memorandum of orders on the substantive proceedings had been approved, I raised the question of costs with the parties. Mr Potkonyak said that his client was not legally aided and that he had been appearing for her on a pro bono basis. The Independent Legal Representative of the child did not make any application for costs nor did DoFACS.

44. In those circumstances - and in the circumstances of the very limited scope for a costs order in any event in proceedings under the Act - there is no effective costs sanction which can be imposed by the Court to prevent unnecessary costs being incurred by those agencies.

45. The paternal grandmother, Ms DE, being the carer of the child and the respondent to the mother’s summons was, and is, privately funded in these proceedings. She, through her solicitor Ms Mowbray, has now made an application for costs.

46. Ms Mowbray also informed the court that she had made an offer about contact on 28 November 2014. That offer was more favourable to the mother than was agreed on 30 March 2015. It essentially proposed a six month regime of supervised contact. That was rejected on 5 December 2015 by Mr Potkonyak, who asserted then that the proposal was an “outrageous proposition” (exhibit 6).

47. No other evidence was filed by Mr Potkonyak on behalf of the mother to support that assertion nor to submit why supervision was unnecessary. The relevant material in the mother’s affidavit of 27 March 2015 was at [9], being a brief reference to the current situation. There was nothing further to advance the mother’s case as to a relevant change in circumstances.

Costs provisions

48. S.88 of the Act prevents costs orders being made in care proceedings other than in exceptional circumstances. This provision has been examined in SP v Department of Community Services [2006] NSWDC 168, per Rein DCJ, in particular at [36]. Those circumstances include misconduct or wrongful conduct.

49. I also note that in his judgment, his Honour referred to Dal Pont’s book, “Law of Costs” published by LexisNexis Butterworths, 2003, where the fact of acting capriciously or deliberately would be sufficient to warrant a finding of exceptional circumstances, such that a costs order would be appropriate.

50. Mr Potkonyak submitted that even if the Court was misled, it was not on a material matter. I do not accept that submission.

51. Here, I consider that exceptional circumstances have been constituted by:

1. The failure to file evidence addressing the change of circumstances necessary to establish the mother's case. The summons filed by Mr Potkonyak is unclear as to the orders sought other than for leave under s. 90(1) of the Act. Paragraph 1(a) of the summons refers to the limitation that evidence should be limited to"... the application for rescission/variation of the orders of 4 May 2012."

2. The failure to disclose the file note of Mr D either as a relevant annexure to the affidavit of the mother or in Mr Potkonyak's written submissions.

52. On the hearing of the appeal, the District Court has under s. 91(4) all the powers of the Children's Court in addition to any functions and discretions the District Court ordinarily has.

53. Those include the powers under the Civil Procedure Act 2005 which should govern costs matters in the District Court, subject to any overriding or contrary provisions of the Act.

Costs against solicitor

54. In my view, the making of a costs order against a solicitor is not contrary to the provisions of the Act where exceptional circumstances are found - as they are here.

55. There is also the consideration that any order for costs made against the mother on the application of the paternal grandmother would have the consequence of raising pressures and tensions between them in circumstances where the mother is effectively without resources and, as I understand the position, exists on a disability pension. It is precisely because of that kind of circumstance that the policy behind the care and related family law legislation (Children and Young Persons (Care and Protection) Act 1998, section 88; Family Law Act 1975: section 117) is to limit the circumstances in which costs orders can be made.

56. However, those policy reasons do not apply where there has been misconduct by a practitioner. S.99(21)(b)(ii) of the Civil Procedure Act 2005 sets out the procedure to be followed in relation to an order for costs against a solicitor. Having regard to the factors specified in Wentworth v Rogers [1999] NSWCA 403 at [26] - [41], it is appropriate that those costs of Ms DE be met by Mr Potkonyak personally, and I will so order.

Referral to the Law Society of NSW

57. After I raised these matters with Mr Potkonyak, I adjourned the matter to enable him to consider his position in the light of my indication that his conduct should be the subject of a referral to the Law Society of NSW.

58. When the matter returned to Court on 2 April 2015, Mr Potkonyak filed further written submissions. In those, he said that he did not deliberately exclude the missing document nor did he mislead the Court in this regard. He further reiterated that he was withdrawing the mother’s affidavit of 27 March 2015 and his earlier written submissions.

59. Ms Mowbray then informed the Court that Mr D said that, on receipt of the subpoena, he had specifically informed Mr Potkonyak that he, Mr D, had seen the mother in hospital; further, that there was a detailed file note to that effect in the subpoenaed material on or about 11 March 2015.

60. Mr Potkonyak said he did recall being told by Mr D. He did not recall whether he kept a file note of his conversation with Mr D. He regarded that to be “totally irrelevant” (transcript page 17).

Consideration: referral of solicitor

61. Care proceedings involve one of the most important jurisdictions exercised by the Court, involving often the most vulnerable people as well as children. Here, the solicitor, Mr Potkonyak, was appearing for a party, namely the mother, who has a history of what appears to be postnatal depression and other issues. She is a national of a country in Southeast Asia with limited understanding of English and the different legal system and culture in which her contact with her child needs to be considered. Such a party needs to be able to rely on a practitioner to represent her interests and without pushing other agendas or interests. Mr Potkonyak’s obsessive desire to promote and litigate his view on what he perceives to be an incorrect procedure has clearly obscured his obligation to his client to provide evidence of any relevant change in circumstances on the leave application he commenced on her behalf let alone to the court in terms of promoting the best interests of the child the subject of these proceedings.

62. S.347(1) of the Legal Profession Act 2004 (“LPA”) specifically provides that the provision of legal services in civil claims where there is no reasonable prospect of success is specifically capable of constituting professional misconduct or unsatisfactory professional conduct.

63. In terms of the annexures to the mother’s affidavit, and the submissions made by Mr Potkonyak, and the subsequent evidence to the effect that Mr D did in fact contact Mr Potkonyak, there is an apposite comment made by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408:

“If such assumptions cannot be made in the ordinary course of dealing between solicitors and each is required in prudence to check the truth of what the other has suggested, the administration of justice would be seriously impeded.”

64. That authority also makes clear that there is a clear public interest that extends beyond the particular case to ensure that the community is protected against such default, per Mahoney JA at 441:

“It extends also to the protection of the public against similar defaults by other solicitors, and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.”

65. I hesitate in taking this step in relation to any practitioner and should indicate for these purposes that I have not found it necessary to do so in over 10 years in this position. Solicitors in the children’s care and protection jurisdiction can operate in a fraught area of human relationships. However, they have a duty to both the Court and their client as a primary and essential part of their obligations. 

Orders and Directions

66. I confirm the orders made approving the memorandum of consent orders on the substantive proceedings.

67. I order that the solicitor for the Plaintiff, George Potkonyak pay the costs of the paternal grandmother of and incidental to the proceedings commenced upon the filing of the Summons Commencing an Appeal by the Plaintiff mother on 3 November 2014 in the usual way, such costs to be as assessed or agreed.

68. I direct that the Registrar forward a copy of the following documents to the Law Society of NSW:

1. a copy of these remarks;

2. a copy of the mother’s affidavit sworn 27 March 2015;

3. a copy of the written submissions of Mr Potkonyak;

4. a copy of the transcript of the proceedings in this matter of 30 March 2015; and

5. a copy of the District Court file in these proceedings.

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Decision last updated: 11 May 2015