Hanahan and Lewis (No 2)

[2010] FamCA 404

FAMILY COURT OF AUSTRALIA

HANAHAN & LEWIS (NO. 2) [2010] FamCA 404

FAMILY LAW – INTERLOCUTORY – Oral application by respondent to disqualify Senior Counsel from continued representation of the applicant 

APPLICANT: Ms Hanahan

RESPONDENT: Mr Lewis

INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

FILE NUMBER: SYF 4159 of 2006

DATE DELIVERED: 29 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Faulks DCJ

HEARING DATE: 29 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr R. Dunbier

SOLICITOR FOR THE RESPONDENT: Dunbiers Commercial Litigation Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms F. Reid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Reid Family Lawyers

Orders

1. The application to disqualify Mr Richardson SC from continued representation of Ms Hanahan is refused. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4159 of 2006

MS HANAHAN

Applicant

And

MR LEWIS

Respondent

REASONS FOR JUDGMENT

1. In this matter, the preliminary issue has been raised by the father that Mr Richardson SC, who represents the mother in these proceedings, should disqualify himself or should be disqualified from proceeding any further in this matter.  This is not an application which is acceded to by Mr Richardson SC. 

2. The evidence from the father, and it is not evidence at this point although he asserts that it would be evidence he would give on oath, is that he had two conversations with Mr Richardson SC, sometime in or around February 2004 and before the parties separated in April 2006.

3. The father has indicated first that he does not believe that Mr Richardson SC is being dishonest, but that he thinks that maybe at some point in the proceedings Mr Richardson SC’s failure to recall the conversation at all may cease to be a failure and he remember something that was said.  It is, therefore, important, perhaps, to consider what might have been said in the circumstances to determine the effect it may have on these proceedings.  Obviously, if there had been a disclosure to Mr Richardson SC which would impact upon the result of these proceedings then that may have an effect on the appropriateness of Mr Richardson SC’s continued representation of the mother.

4. I offered to the father the opportunity to discuss what he had spoken about with Mr Richardson SC, and having waived privilege, he has summarised the sorts of things that he says he discussed.  He conceded that at the time he was under a lot of pressure, but he says that the conversation that he had with Mr Richardson SC, whether in the more extended version, I presume, is that it was related to the mother’s violence towards the father, the mother’s verbal abuse to the father, the mother’s verbal abuse to his children from his former marriage, her physiological capacity at the time properly to care for the child, and his grave concerns that she would remove the child from him initially and from Australia.

5. The father says he also discussed his concerns about the mother’s ability properly to parent the child.  Finally, he indicated that he discussed his legal position, although the precise terms of that are not clear and it is obvious that there was no retainer formally entered in by Mr Richardson SC subsequently with him, so that there was no lawyer/client privilege attained.  Whether or not Mr Richardson SC gave advice the father has not said, and what that advice was he has not said, and whether it was contrary to what he subsequently undertook is also not said.  Mr Richardson SC has never been retained by the father in these proceedings.

6. Analysing what was said for a moment, it seems to me that none of these matters bears upon the proceedings immediately before the Court.  Whatever may have been the situation about the violence that existed between the parties at the times that I have referred to previously does not bear upon what is to happen in the immediate future to what is to happen with the child, where she is to live, what time she is to spend with each parent.  There is no situation, no circumstance, in which there is any act of violence referred to or suggested as having occurred between the parties since the proceedings in 2007, which is not all that surprising as the mother has been living in the United States of America.

7. Hence, whatever may have been the situation at that time is not relevant to these proceedings today.  Similarly, whatever verbal abuse may have been occasioned to the father or to his former children at that point is really irrelevant to what is to happen in the future.  I am also unconcerned at this point that whatever may have been the father’s worries about the mother’s psychological capacity to care for the child at that time are irrelevant to these proceedings now.  There have been subsequent reports about those conditions which have been filed and there has been no objection taken.  I concede that there has not been any formal opening of the proceedings at this point to the nature of the evidence that has been given.

8. I have no reason to suspect, either on the material filed by the father or on the material filed by the mother, that there is any serious considerations about her psychological capacity to care for the child at this time except in the context of the concerns and anxieties she may feel in relation to these proceedings.  In the same category is the question of the capacity, at that time, of the mother to undertake proper parenting for the child.  I have indicated to the father, and note he disagrees with my contention, that at no point has he sought that the child would be solely within his care based on the fact that the mother was unable properly to care for the child as a parent.  In fact, his present application to the extent that I have it before me, is that the child would only spend half the time with him.

9. I do not accept the assertion he makes that there is for these purposes a significant and relevant difference between someone’s ability to care for a child half of the time and someone to care for the child full-time.  Clearly, there are greater pressures associated with full-time but they are not relevant to the issue about whether or not the parenting of the child should be shared at this point in these proceedings in the circumstances now applicable.

10. Finally, the father has suggested he discussed with Mr Richardson SC that he had grave concerns that the mother would remove the child from his care, which he says she did, I presume, on separation, and that he was concerned that she would remove the child from Australia.  The latter is clearly an irrelevant consideration given that there was every opportunity for the mother to do this when the father, himself, had clearly and premeditatedly removed the child from her mother and from Australia.  If I were to accept the evidence of the mother, and that is a matter that is still before me, the father attempted to extort money from the mother in return for the child’s return to Australia. 

11. The mother had every opportunity to leave then and not return and she did not do so.  She returned to Australia and only left after obtaining the Court’s approval.  In those circumstances, the concern that was expressed by the father may have been a genuine concern on his part, but is not relevant to these proceedings. Whether or not, at the time, the mother removed the child without the consent of the father from the home in which they were then living is a matter that has now been overtaken by events many times over.  The matter is before the Court and there have been orders that have placed the child in her care.  All in all, there is nothing in the circumstances of the discussion that the father had, even if I were to accept all of what he says and even if I were to accept the discussion was one that Mr Richardson SC now recalls, which would cause me to make an order that directed that Mr Richardson SC be prohibited from continuing to represent the mother in these proceedings.

12. The application for disqualification of Mr Richardson SC is accordingly refused.

I certify that the preceding eleven (12) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  6 May 2010