GILBERTSON & MILL
[2017] FCCA 881
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILBERTSON & MILL | [2017] FCCA 881 |
| Catchwords: FAMILY LAW – Injunction – application to restrain mother’s solicitors from continuing to act. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r.10 |
| Cases cited: Dalton & Dalton [2017] FamCAFC 78 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR GILBERTSON |
| Respondent: | MS MILL |
| File Number: | DUC 439 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 15 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Guest |
| Solicitors for the Applicant: | Kelly Hardie Solicitors |
| Appearing for the Respondent: | Ms Clarke |
| Solicitors for the Respondent: | Austen Brown Boog |
ORDERS
The parties shall have equal shared parental responsibility for the child X born (omitted) 2015.
X shall live with the mother.
X shall spend time with the father as agreed in writing, and in default of agreement as follows:
(a)During the school term, each weekend from 9am Friday until 5.30pm Sunday;
(b)If X is not otherwise with the father, on Father’s Day weekend, from 12pm the Friday before Father’s Day until 12pm the Monday following Father’s Day;
(c)During the NSW gazetted school holiday period for terms 1, 2 and 3 the first week of the school holiday period from 9am the last Friday of the school term until 9am on the Friday the first week of the school holiday period.
(d)During term 4 NSW gazetted school holiday period, in odd years from 12pm 23 December until 12pm 13 January and in even years from 12pm 6 January until 27 January.
The party who does not have care of X be permitted to contact X by telephone/skype/Facetime as agreed, and in default of agreement:
(a)Each Sunday between 7pm and 8pm;
(b)X’s birthday between either 9am and 10am or 7pm and 8pm; and
(c)Christmas Day between either 9am and 10am or 7pm and 8pm.
For the purpose of this order, the party who has care of X will make him available to receive such calls from the other party and will facilitate any other calls that X may wish to make to the other party and ensure X has privacy for the calls.
Changeover unless otherwise agreed in writing shall occur at McDonald’s, (omitted).
Neither party shall denigrate the other party, or a member of that party’s family or household in the presence or hearing of X, or via any social media platform including but not limited to Facebook, nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.
The parties shall:
(a)Notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by X whilst in the care of that party.
(b)Notify the other party within 24 hours of changing telephone number and each party shall keep the other informed of their respective Skype/Facetime details, telephone numbers and emergency contact telephone numbers.
(c)Notify the other party not less than 14 days before changing that party’s residential address.
(d)Authorise the day care or preschool attended by X from time to time to release to the other party all information sought by them relating to X’s welfare and progress at day care or preschool, details of upcoming functions or activities and any other information provided by the day care or preschool to parents of children attending the day care or preschool.
(e)Be at liberty to attend day care or preschool functions to which parents are invited.
The mother is restrained from relocating the child’s residence to an area located outside of an 80 kilometre radius of (omitted).
The parties shall attend mediation with an accredited Family Dispute Resolution Practitioner:
(a)as agreed between the parties or failing agreement within 42 days of this Order as nominated by the Law Society of New South Wales Solicitors Settlement Service;
(b)absent agreement within 28 days of today’s date as nominated, on the application of either party, by the President or other office bearer of one of the following:
§ LEADR;
§ Australian Mediation Association;
§ Australian Institute of Arbitrators and Mediators;
§ Law Society of NSW Mediation Unit;
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the mediator not less than 7 days prior to the Mediation.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b)Pay one half of all fees charged by the practitioner;
(c)Attend at such times, dates and places necessary to complete mediation.
The Application in a Case filed 14 March 2017 is dismissed.
List the matter for directions at 11.30am on 26 July 2017.
IT IS NOTED that publication of this judgment under the pseudonym Gilbertson & Mill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DUBBO |
DUC 439 of 2016
| MR GILBERTSON |
Applicant
And
| MS MILL |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 March 2017, the Court heard an interim parenting application as well as an application by the father to have the mother’s solicitors restrained from continuing to act for her.
The interim parenting application concerns the only child of the parties, X who was born on (omitted) 2015. At the time of the interim hearing, X was two years and two months old.
Competing Proposals
The mother seeks an order permitting her to relocate X’s residence from (omitted) to (omitted). This is a distance of some 600 kilometres.
If she is permitted to relocate X’s residence, the mother then seeks that the child spend time with the father one week each calendar month, and during December/January for a block period of three weeks.
If she not permitted to relocate X’s residence, the mother seeks that the child spends time with the father from 9am on Friday until 5.30pm on Sunday each weekend and for half of the school holidays.
The father’s application on an interim basis is for the child to remain living in (omitted) with the mother, and for X to spend time with the father from 9am on Friday to 5.30pm on Monday.
Both parents seek an order for equal shared parental responsibility.
There were additional specific issue orders sought by each of the parents.
Relevant legal principles
The central enquiry for the Court is to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
Documents Relied Upon at Interim Hearing in respect of Parenting
The mother relied upon the following documents:
a)Response filed 24 February 2017;
b)Affidavit of Ms Mill sworn 23 February 2017 and filed on 24 February 2017;
c)Notice of Risk filed 24 February 2017; and
d)Case outline document.
The father relied upon the following documents:
a)Initiating Application filed 29 November 2016;
b)Affidavit of Mr Gilbertson filed 29 November 2016; and
c)Case outline document.
Issues in Dispute
The main issue in dispute at this early interim stage is whether the mother should be permitted to relocate X’s residence some 600 kilometres away from where he currently resides with her. This will have a consequential effect on how much time the child will spend with his father.
If the mother and child are to remain living in (omitted), then the only significant issue is whether the child spends from 9am Friday to 5.30pm Sunday or to 5.30pm on Monday with the father, that is a difference of one night per fortnight.
Like many of the interim matters which come before this Court there is significant dispute about many facts. However, neither party raises any issue of unacceptable risk of harm to the child, nor indeed significant risk to the child in the other parent’s household.
Both parties agree that the child should live with the mother and have a relationship with the father.
Uncontested Evidence
The father was born on (omitted) 1993.
The mother was born on (omitted) 1995.
The parties commenced a relationship in either May 2012 or May 2013.
In October 2013 an Apprehended Violence Order was made at Dubbo Local Court for a period of 12 months with the mother named as the protected person and the father named as the defendant.
In about October 2013, the parties separated and the mother moved in with her sister.
In about January 2014 the parties recommenced their relationship.
On (omitted) 2015, the parties’ only child X was born.
The parties separated in February 2016. Two months later, in April 2016 the mother moved with the child to Brisbane. The mother and child returned to (omitted) in July 2016.
In October 2016 the mother moved with the child to (omitted). At the time the mother was in a relationship with Mr T.
The father commenced proceedings on 29 November 2016. When the matter was first before the Court on 14 December 2016 orders were made by consent for the mother to return and live with the child in the (omitted) area. This was to occur by 21 January 2017.
Since the mother and child returned to (omitted) in January 2017 the child has been spending time with the father each Friday from 9am to 5.30pm on Sunday.
On 24 February 2017, the mother filed her Response, Affidavit and Notice of Risk. On the second return date, 2 March 2017, the matter was set down for interim hearing. The interim hearing occurred on 15 March 2017.
Section 60CC Factors
Views of the child
X’s views, even if they were known, would not be given any weight noting his very young age.
Nature of the child’s relationship with the parents and significant others
The child appears to have a close and loving bond with his mother, who has been his primary carer since birth.
The child also appears to have a close and loving bond with his father, despite the interruptions due to the child’s changes of residence since the parties’ separation.
Parent’s involvement with decision making, spending time and communicating with the child and maintenance of the child
There is some dispute between the parties in relation to the changes in the child’s residences since the parties’ separation. The mother’s evidence is that she understood the father was not opposed to the mother and child moving away from (omitted) after separation, as long as there were arrangements in place for the child to spend time with the father. The father’s evidence is that the mother unilaterally relocated the child’s residence twice.
In any event, it seems that both parties agree that it was the mother’s decision to move with the child post separation – whether such decision was communicated to the father before or after it was made, and whether or not it was opposed by the father. While the child had been living away from (omitted) the child’s time with the father was somewhat limited given the physical distance between the parties’ residences.
The parties are in agreement that the mother is the primary care giver of the child. There is no evidence about the amount of maintenance which the father pays towards the child, and this in all of the circumstances, would be a matter which would be given very limited weight.
Likely effect of change and practical difficulty of spending time
The orders which the father seeks would not see a significant change in the child’s circumstance since the interim orders were made by consent, except perhaps insofar as he would be spending an extra night a week with the child.
The orders proposed by the mother would see significant change in the child’s routine and circumstance compared to the present arrangement.
Given the child’s young age it may be that the orders which the mother seeks would have an impact upon the child’s relationship with the father. This would arise out of a practical difficulty for the child to spend frequent time with the father.
There was no practical difficulty raised by either parent in respect of the child spending time with the father if the mother remains living with the child in the (omitted) area.
The father’s evidence is that when the mother and child had moved with the child to Brisbane he was able to spend alternate weekends with the child. While the father says that the drive was a long exhausting trip for everyone, he does not give any evidence about his ability to travel to (omitted) on a similar basis. The distance between (omitted) and (omitted) is less than the distance between (omitted) and Brisbane by about 250 kilometres or three hours. However, the Court accepts that there would be considerable practical difficulty for the child to spend regular weekly time with the father if the mother was permitted to relocate with the child to (omitted).
Capacity to provide for the child’s needs and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Given X’s young age and his already disrupted relationship with the father as a result of the two previous moves by the mother and child from (omitted), there is a benefit to him spending more frequent time with the father.
The Court finds that it is frequent weekly time which will give the child the opportunity of developing and growing his relationship with his father further.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents; if the child is an Aboriginal
Both parties have exhibited levels of immaturity since their separation.
The father is working in full-time paid employment. He has re-partnered and has recently become engaged to marry. His partner has a daughter who will have just turned five years old before the delivery of this Judgment.
The mother is not in paid employment. She is reliant on Centrelink for financial support. Her intentions are not to find work (at least at this stage) but to remain looking after X on a full-time basis.
The mother did have a further live-in relationship after separation, this commencing in about July 2016. She moved with her then boyfriend to (omitted), but now deposes to deciding to ‘slow down’ that relationship. She states “we have remained close, but not in a committed relationship.” The mother states that it is her hope, if she is permitted to relocate, to resume a committed relationship with Mr T.
The mother states that she does not have stable accommodation in (omitted). She is currently living in Mr T’s father’s home. The mother’s ongoing accommodation in (omitted) may be problematic, however, the mother does not depose to any inability to obtain appropriate rental accommodation in (omitted) if she were to stay living there.
Family Violence
The mother makes a number of allegations of family violence against the father.
Many of the facts alleged are disputed and they otherwise have not been tested. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where the child is to live, and what time, if any, they are to spend with the other parent.[9]
[9] M & M (1988) 166 CLR 69 at 77
The Court does not find that there is an unacceptable risk of harm to the child arising out of any family violence allegations (in so far as the Court assesses the likely impact of those matters occurring[10]).
[10] Keats & Keats [2016] FamCAFC 156 at [9]
Institution of further proceedings and other relevant matters
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of his parents against the mother’s wish to relocate her residence.
The mother submits that if she is not permitted to relocate on an interim basis she is likely to seek to relocate on a final basis. Such an application on a final basis will be able to be assessed after the evidence is tested and after there has been some stability in the child’s relationship with the father.
Primary Considerations
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. However, in the circumstances of this case neither party raises significant concerns about the other’s ability to care for the child or any allegations of significant or unacceptable risk of harm to the child.
Both parties agree that the child will benefit from a meaningful relationship with the other parent.
Parental Responsibility
The parties both submit that an order for equal shared parental responsibility is appropriate. Such an order will be made. The Court does not consider that there is any evidence which would rebut the presumption contained in s61DA in any event.
Section 65DAA enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons, equal time is not supported by the facts in this matter, but significant and substantial time is[11].
[11] within the meaning of s65DAA(3)
To have the child spend from Friday 9am to Monday 5.30pm with the father is getting close to an equal shared arrangement, and the Court does not consider this to be in the child’s best interest, not only because the parental conflict is contra-indicative of equal shared care but also because the child’s primary carer has always been the mother.
Conclusion
The Court finds that overall the child’s best interests are served by an order for frequent weekly time with the father, rather than monthly time.
The Court also finds that the mother does not have any particular ties to (omitted) – she is not in a committed relationship nor is she proposing to move due to better work opportunities. Indeed, the mother states “I do not have any paid employment as I wish to maintain my role as primary carer of X.”
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
Application to restrain solicitors from continuing to act
On 14 March 2017, the father filed an Application in a Case seeking an order restraining the mother’s solicitors from continuing to act.
There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a Court over its officers and to control its process: Osferatu & Osferatu.[12] The basis for the exercise of the jurisdiction in each category is different.[13]
[12] [2015] FLC 93-048 at [20]
[13] Kallinicos v Hunt [2005] NSWSC 1181
It was submitted on behalf of the father that there was a conflict of interest in that those solicitors had previously acted for the father. The Court also understood, although perhaps not articulated as well as it could have been, that a further submission was made that the interests of justice required the restraint to be made.[14]
[14] Namely the third identified category of the Court’s inherent jurisdiction
In respect of the conflict of interest ground, recently in Dalton & Dalton[15], the Full Court has stated:
It is well settled that the jurisdiction to restrain a solicitor from acting for a client is exceptional and to be exercised with caution, having regard to the totality of the evidence (Billington & Billington (No 2) [2008] FamCA 409). Due weight is to be given to the public interest in a client not being deprived of their lawyer of choice without due cause. The public interest is also predicated on a client knowing that confidential information imparted to a lawyer will not be given to an opposing party unless the law requires its production. These public interests lie at the heart of the system of justice (Asia Pacific Telecommunications Ltd v Optus Networks Pty Limited [2007] NSWSC 350 at [42]).
[15] [2017] FamCAFC 78
It is a matter for the Applicant to discharge his burden of proof by adducing cogent and persuasive evidence.[16]
[16] Osferatu supra n.12 at [26]
When an application is made to restrain a legal practitioner from acting in a cause for reasons other than the risk of disclosure or misuse of information provided to the practitioner in confidence by the former client, it is of importance to identify precisely what obligation towards the former client or to the Court may be breached or imperilled by the practitioner acting in the cause or against the former client.[17]
[17] Holborow v Rudder [2002] WASC 265 as referred to by Justice Brereton in Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 at [63]
As Justice Brereton stated in Kallinicos[18]:
·During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests
·Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure)
·After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer.
·However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.
·The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
·The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
·Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
·The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
[18] Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 at [73]
The father’s evidence is that Austen Brown Boog, the solicitors now on record for the mother, “assisted” the father “in a drink driving incident at the Dubbo Local Court in July 2011.” The father goes on to say “In my drink driving matter I had provided Austen Brown Boog with personal confidential information. I believe that this should ultimately prevent them from acting for Ms Mill.”
The father also relied upon an Affidavit of his own father, the paternal grandfather, Mr S Gilbertson. The paternal grandfather asserts that Austen Brown Boog are “privy to confidential information relating to” the father and himself. They are said to have acted on ‘various matters’ such as purchase and sale of properties, drawing up and witnessing Mr Gilbertson's Will and Probate in relation to the estates of Mr Gilbertson’s late parents.
Ms Clark, the solicitor on record from Austen Brown Boog Solicitors has herself sworn an Affidavit which has been filed in the mother’s case in response to the restraint application. Ms Clark deposes to the firm acting for the father “in July 2011 in a PCA matter” and for the paternal grandfather in one property sale in 2012 and his late father’s estate in 2010. Ms Clark further states that:
a)All of these matters arose before the parties commenced a relationship in 2012;
b)There are not allegations in the mother’s material going to the father’s capacity as a parent arising from his conduct prior to the relationship;
c)There are no allegations in the mother’s material going to the paternal grandfather’s capacity as a grandparent arising from his conduct prior to the relationship;
d)She has reviewed the matter with her Principal upon the objection being raised by the father; and
e)She does not believe that either she or the firm are in conflict with their duty of confidentiality as set out in in Rule 10 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
As noted earlier, the burden is of course on the father to establish by cogent and persuasive evidence that a conflict arises. The solicitors have certainly not acted for the father in relation to any family law matters, and particularly in relation to the matters currently before the Court.
The questions[19] to be answered are:
a)Whether the firm is in possession of information which is confidential to the father;
b)Whether that information is, or may be, relevant to a matter in which the firm is proposing to act for the mother with an interest adverse to the father; and
c)Whether there is any risk that the information will come into the possession of those persons in the firm working for the mother.
[19] Dalton & Dalton at [7] referring to Osferatu
Where there is a real risk of disclosure, the law will ordinarily intervene.[20]
[20] Ibid at [9]
The Court accepts that the father does not have to divulge the content of the confidential information.[21] However, it is not possible to address in any clear way and come to a decision on the protection of any alleged confidential information without identifying what the confidential information is in a specific way to enable it to be identified. Without specificity a claim for protection was said, by the Full Court, not to be capable of being defended or decided on any fair procedural basis.[22] While the father asserts that the solicitors are in possession of “confidential information” he does not state with any particularity what that confidential information is or how it may be relevant to the parenting issues.
[21] See for example Osferatu at [87]
[22] Osferatu at [27] citing with approval the comments of Bryson J in Mancini & Mancini [1999] NSWSC 800 at [7]
The Court finds that the father has not established on the evidence that a conflict of interest arises. The fact of the solicitors acting for the father previously in a drink driving incident and for the paternal grandfather in relation to a conveyance and an estate, does not establish that the solicitors hold any confidential information which may be pertinent to the parenting issues currently before the Court.
In respect of the second limb of the argument, the Court is again not satisfied that the jurisdiction[23], which ought only be exercised with caution and which is exceptional, should be exercised in all of the circumstances of this case. The Court finds that a fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice requires that Austen Brown Boog should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
[23] The argument of whether this Court has any inherent jurisdiction in the manner which the Supreme Court of New South Wales for example does, is not something which was addressed by the lawyer for the father in developing this submission.
For all of these reasons, the application to restrain the mother’s solicitors from continuing to act is dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 3 May 2017
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