Farnsworth & Danson (No 3)
[2023] FedCFamC2F 702
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farnsworth & Danson (No 3) [2023] FedCFamC2F 702
File number(s): SYC 3458 of 2020 Judgment of: JUDGE ELDERSHAW Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – CEASING TO ACT – Where there is significant risk to the child in the substantive proceedings – Where the solicitor ceases to act on the morning of hearing without leave of the Court – Whether the solicitor’s conduct warrants a referral to the legal profession regulatory body – Where a referral is not made Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.03
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Division: Division 2 Family Law Number of paragraphs: 19 Date of hearing: 3 May 2023 Place: Sydney The Applicant: The Applicant did not appear The Respondent: The Respondent did not appear The Independent Children's Lawyer: The Independent Children’s Lawyer did not appear ORDERS
SYC 3458 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FARNSWORTH
Applicant
AND: MS DANSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE ELDERSHAW
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
Next Court Date
1.The matter with respect to the substantive proceedings remains listed for case management hearing before her Honour Judge Eldershaw on 17 July 2023 at 9.30 am to be conducted in person at the Sydney registry where an appearance will be required by and on behalf of all parties.
THE COURT NOTES THAT:
A.The issue of whether the father’s former solicitor should be referred to the Office of the NSW Legal Services Commission has been concluded.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Danson & Farnsworth (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
Proceedings
The substantive parenting proceedings concern X born in 2011 (“X”) and Y born in 2015 (“Y”). X and Y are the children of the relationship between the parties.
Context
The substantive proceedings have been before the Court for some considerable period. The Applicant father is Mr Farnsworth born in 1981 (“the father”). The Respondent mother is Ms Danson born in 1982 (“the mother”).
On 1 June 2020, the father filed an Initiating Application to which the mother joined by her Response filed on 27 July 2020.
A Single Expert Report (“the Report”) was prepared by Dr B (“the Expert”) dated 24 June 2021. The Report remains untested but nevertheless is probative evidence at this stage. What clearly arises from the Report is that the children could be at risk of harm and are suffering from considerable developmental difficulties.
This is particularly relevant for the older child X who at the time of the Report, had a questionable diagnosis of Autism Spectrum Disorder and was displaying some aggressive, if not violent, behaviours. Certain aspects of those behaviours came to the attention of his school and were of such concern that a referral was made to a part of the Department of Education dealing with children who are considered to be at high risk.
It was clear from the Report that X was likely to require significant psychological support. X’s behaviours were particularly orientated towards warfare and it was the Expert’s opinion that X may have the preponderance for developing a more serious and potentially “forensic” issue.
The opinion of the Expert at the time of his Report was that:
(a)X was holding a lot of anger towards his father;
(b)In order to protect himself emotionally, X was at risk of developing the idea that his father does not care for him; and
(c)The anger that X was displaying could be used as a pre-emptive safeguard.
The Expert reported that X’s behaviour, and particularly his obsession with warfare and overtly violent behaviour, had a worrisome flavour to it for which the Expert was concerned as to his development.
The Expert opined that X is an intelligent and gifted boy, but without appropriate treatment and support as he gets older, he will remain at risk of a poor developmental trajectory that could become increasingly difficult to treat. The Expert opined that there are opportunities to intervene early, and strongly recommended both parents to heed that warning and act in his interests. The “forensic” trajectory, as I have understood, was a matter that was hard to ignore in the Report, at least as an untested piece of evidence.
Allocation of final hearing dates with priority
Accordingly, the matter was given judicial priority with hearing dates to deal with those and other issues of risk, which also touched upon the younger child, Y. To that end, the matter was listed for final hearing to commence on 7 March 2023.
In the days leading up to that hearing, information came from the father’s solicitor to indicate there may be a difficulty with the hearing proceeding by reason of the unavailability of counsel.
Filing of the Notice of Withdrawal
Most problematically was that at 1.34 am on the day of the hearing, a Notice of Withdrawal as a Lawyer under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) was filed by the father’s then-solicitor.
Rule 9.03 of the Rules provide that such notice may not be filed less than seven days prior to the final hearing or, if such a solicitor is to withdraw, it is with leave of the Court. The solicitor did not appear on the day of the hearing to seek that leave.
The proper withdrawal as a solicitor is an important matter. It goes to the proper administration of the Court. This is a principal obligation of any legal practitioner.
The fact that clients may withdraw instructions or act in a manner that is incompatible with the solicitor remaining engaged in the proceedings is not the point. The obligation is plain. If a solicitor wishes to withdraw from proceedings within seven days of a final hearing, they must seek leave. That did not occur.
The seriousness of that matter when set against the background of risk to the child in this matter is not to be understated.
I considered whether it ought to be a matter referred to the Office of the New South Wales Legal Services Commissioner. I gave the solicitor an opportunity to file submissions, which she has done. She impresses on me certain circumstances which would, if explained, involve her breaching client-legal privilege.
I will not refer the matter because to do so could cast a long shadow over a young solicitor. I am conscious that she is a sole practitioner and not long in practice. To be a sole practitioner is permitted under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) after a solicitor has finished a period of supervised legal practice, although I understand that there is some discussion as to whether practitioners should be in sole practice at such an early stage.
It is possible the solicitor’s steps were taken through a lack of awareness and were not through any deliberate disrespect of the Court or breach of her obligations. I will afford her that doubt. I am confident this will not happen again. I wish the solicitor well and I am sure she will do well in practice from here on.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 19 June 2023
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