Fontes & Bernik
[2022] FedCFamC1F 991
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fontes & Bernik [2022] FedCFamC1F 991
File number(s): PAC 535 of 2019 Judgment of: SMITH J Date of judgment: 28 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – withdrawal of a solicitor at the commencement of a final hearing – just cause – reasonable notice in the circumstance – solicitor may withdraw – procedural fairness – final hearing adjourned by consent. Legislation: Federal Circuit and Family Court Of Australia (Family Law) Rules 2021 (Cth) r 3.10
Uniform Solicitors’ Rules 2015 (NSW) rr 13.1
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 28 November 2022 Place: Newcastle Solicitor for the Applicant: Ark Law Lawyers Counsel for the Respondent: Mr J Trost Solicitor for the Respondent: Genuine Legal Counsel for the Independent Children's Lawyer: Ms G Edwards Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
PAC 535 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTES
Applicant
AND: MR BERNIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
28 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Stand the matter in the list to 4:00 p.m. 28 November 2022.
2.Leave be granted to the Applicant mother’s solicitor to withdraw from these proceedings forthwith.
IT IS NOTED THAT:
A.The matter has been stood down in the list to determine whether the mother can obtain alternate legal representation for the matter to proceed tomorrow or Wednesday, 30 November 2022.
B.Counsel for the father has proposed that were the matter not to proceed to final hearing this week, that there be an interim hearing on Wednesday, 30 November 2022, with cross examination. The father seeks an order for a change of residence of the children on an interim basis.
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 Fontes & Bernik has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTSmith J:
This matter comes before me today for a three day final hearing on parenting. The matter is reasonably old, and it was hoped to be able to conclude the matter on this occasion.
This matter has an unfortunate history in that on the prior occasion on which it was listed, counsel for a party came down with COVID, and the matter was not able to proceed. That is nobody’s fault. It was listed again. However, unfortunately, I required reasonably urgent surgery, and, again, the matter was not able to proceed.
The mother’s solicitors today have appeared and sought leave to withdraw. The usual obligation, pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), rule 3.10, lawyer ceasing to act, would involve the giving of certain notices or, otherwise, the Court’s permission is required.
I am told today that the other parties were informed about last Thursday. The mother’s solicitor seeks to withdraw by reason of the principles in rule 13 of the Uniform Solicitors’ Rules 2015 (NSW), which form part of the law of New South Wales. rule 13.1.3 says that:
A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter unless the law practice terminates the engagement for just cause and on reasonable notice.
As is often the case, the solicitor in this matter, Ms Rutkowska, who I note is a very experienced solicitor who has appeared in this jurisdiction for many years, appearing both for parties, and, on numerous occasion as the independent children's lawyer, is in the difficult position of balancing her obligations to the Court, to her client, and, of course, her legitimate interest in protecting her own, and her firm’s position. In those circumstances, she has not been in a position to indicate with great precision the basis upon which she says she has ‘just cause’ to terminate the retainer.
I note that she is acting under a grant of Legal Aid, and it is not a question of a lack of funds in trust.
In those circumstances, I provided the mother’s solicitor with a list of the matters which, at law, constitute just cause. When asked whether one or more of the listed indicia were present, the mother’s solicitor, as an officer of the Court, told me that one or more of these factors were indeed present.
Where an experienced practitioner, for one or more of those reasons, has formed the view that she cannot continue to act, I accept that. On the question of timing, I was also told that Ms Rutkowska had sought to do what she could to allow the trial to continue but did not consider that she was able to.
On the question of reasonable notice, Ms Rutkowska states that she had done what she could. Significantly, she says, that whilst it may have been possible for the trial to start, she thought the likelihood of the trial finishing without her having to withdraw was so small that it was appropriate to withdraw prior to trial commencing. I accept that, as an officer of the Court, she has informed me of what she could.
In those circumstances, noting, as I understand that whilst the other parties are disappointed they do not suggest that I do not allow the withdrawal – I will allow the mother’s solicitors to withdraw forthwith. I make that order.
The question, then, arises as to what should happen now. Counsel for the ICL has taken the position, which I think is correct, that it would constitute a procedural unfairness to require the mother to act for herself in these circumstances. Particularly where she makes allegations of sexual abuse. The father and denies these, and seeks a change of residence.
I agree that requiring her to act for herself would be procedurally unfair, and therefore nullify the result of any trial. In those circumstances, the matter needs to be adjourned. The question that arises as to how long it should be adjourned for, both the ICL and the father have indicated that they’re ready, willing and able to wait to see if the mother can get alternate legal representation by tomorrow, or Wednesday.
Even though it seems extraordinarily unlikely, I think we should try, since the Court is here, and I do not presently have another matter before me, and the legal representatives of the ICL and the father are ready to wait.
If that cannot happen, then I will list the matter as soon as I can. As I have indicated, though, since the father is self-funded, I will give priority to meeting his counsel’s convenience, so that the father does not have to pay to have a new barrister read and become familiar with all the material.
I should note, I have been asked to have an interim hearing on Wednesday. The father wants me to consider switching residence on an interim basis, and to allow cross-examination to consider doing that. At the moment, I must say, having read the material, that my inclination is against that. I will not formally rule on that and we will see what happens.
Those are my reasons.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 28 November 2022
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