HEMMING & BOLTON

[2018] FCCA 1186

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEMMING & BOLTON [2018] FCCA 1186

Catchwords:
FAMILY LAW – Parenting – application to restrain the Independent Children’s Lawyer from acting – where the Applicant had previously consulted the ICL on parenting matters – where the Applicant had disclosed confidential information to the ICL on a previous occasion – application allowed.  

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Osferatu & Osferatu (2015) FLC 93-666

Kallinicos v Hunt (2005) 64 NSWLR 561
McMillan  & McMillan (2000) FLC 93-048
Thevenaz v Thevenaz (1986) FLC 91-748

Applicant: MS HEMMING

Respondent: MR BOLTON

File Number: DNC 104 of 2015

Judgment of: Judge Young

Hearing date: 15 January 2018

Date of Last Submission: 15 January 2018

Delivered at: Darwin

Delivered on: 15 January 2018

REPRESENTATION

Counsel for the Applicant:	In person
Counsel for the Respondent:	Ms Kerr

Solicitors for the Respondent: De Silva Hebron

Solicitors for the Independent Children’s Lawyer: Marris & Co Solicitors & Barristers

THE COURT ORDERS:

1. That Ms Romeo is restrained from acting further for, or assisting, the Independent Children’s Lawyer in these proceedings.

2. That both parties are at liberty to file and serve any further Affidavits strictly in reply to any previous Affidavits filed within 28 days of the date of this order.

3. That the matter remains listed for trial on the 14, 15 and 16 February 2018 at 10:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 104 of 2015

MS HEMMING

Applicant

And

MR BOLTON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by Ms Hemming to have Ms Romeo restrained from continuing to act as the Independent Children’s Lawyer.  She does so on the basis that she consulted Ms Romeo about parenting issues in 2010.  It is not in doubt that she did in fact consult Ms Romeo.  The consultation was a one-off consultation, as I understand it, and pursuant to a grant of Legal Aid.

3. Ms Hemming says in her affidavit at paragraph 6 that what she said to Ms Romeo was as follows:

   I spoke in detail with Ms Orwin [Ms Romeo] about my concerns at the time of how Mr Bolton’s abusive behaviour was a concern for me, and how I believed that this was impacting on the children.  I also detailed how Mr Bolton had not coped with the relationship I was in at the time and how he had to told the children when my partner at that time visited Darwin, “Don’t listen to him.  He’s a stranger.  If you get scared, get mum’s phone to ring me.”  I also advised Ms Orwin that Mr Bolton had made derogatory and threatening remarks to my new partner about me when he picked the children up one day, and he had said, “She will rip you off like she ripped me off.” This was in response to the financial agreement we had entered into which incidentally was 52 per cent to Mr Bolton and 48 per cent to me.  I advised Ms Orwin that there were no formal orders in place.  Ms Orwin advised me that in order to relocate I would need to start court proceedings.

4. I should have added paragraph 5:

   I spoke to Ms Orwin in detail about my wishes at the time to relocate to Sydney as I was wanting to be away from Mr Bolton and his family and the ongoing issues that were happening at the time. 

5. I should have mentioned paragraph 4:

   During this meeting I discussed a number of different things with Ms Orwin which included some background in the history of my relationship and separation from Mr Bolton as well as discussing my children [X] and [Y]. 

6. I am satisfied that the material set out in paragraph 6 is confidential information, that is, it relates to particular concerns that Ms Hemming held about her parenting dispute.  Ms Romeo takes the line that she questions the credibility of Ms Hemming in being able to recall those things as this interview happened 10 years ago.  The basis of her questioning Ms Hemming’s credibility is apparently that Ms Hemming in an earlier stage of this application could not remember when she saw Ms Romeo but is allegedly able to recall specific information set out in paragraph 6. 

7. And I am satisfied that Ms Romeo’s note, which consists of 13 very brief lines, is far from a complete record of the interview.  I see no reason to doubt what Ms Hemming says and I think I should proceed on the basis that what Ms Hemming has said was said was in fact said, and I do so.  As I said, it is in my view, confidential material.  Whether it is relevant to any issue is less clear.  Ms Romeo also put on an affidavit in opposition to this application by Ms Hemming where she says as follows:

   My note clearly says Ms Hemming asked about relocation.  There is absolutely no mention of family violence.  Had she mentioned family violence, there would be FV or DV on my note, as is the usual practice.  If the client mentions family violence my practice is to record and ask more questions.

8. Why Ms Romeo felt it necessary to include that note in her affidavit is not entirely clear to me but it is clearly an assertion that Ms Hemming made no allegation of family violence or domestic violence having occurred during the relationship, separation having occurred in 2009.

9. As family violence is, in my view, between Ms Hemming and Mr Bolton, at best, a marginal issue, I am just not sure why that was included in the affidavit.  I asked Ms Hemming whether there was any allegation in her trial affidavit of family violence and while she asserted there was, once the affidavit was examined more closely, while there is a reference to her being nervous around the father or feeling that he had denigrated her, I am not satisfied that there is a frank allegation of family violence or domestic violence anywhere in her trial affidavit. 

10. So I am not persuaded that that statement in the affidavit, which would be potentially quite disadvantageous to a former client, is necessarily all that relevant.  Nevertheless, I am satisfied that there was confidential information disclosed to Ms Romeo.  I think whether or not she recalls it is neither here nor there.  I accept that confidential information was disclosed to her of the nature I have described.  The three established bases for restraining a lawyer from acting for a client are set out in Kallinicos v Hunt (2005) 64 NSWLR 561 which is referred to in Osferatu & Osferatu (2015) FLC 93-666. Kallinicos v Hunt is a reported case according to my recollection but is simply given the universal citation here.  I was not provided with the complete citation.

11. Osferatu at paragraph [20] says:

    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 to control its process.  Each category has its own principles which guide its operation.  The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different.

12. The Full Court of the Family Court is Osferatu at paragraph 20 referred to a decision of McMillan & McMillan (2000) FLC 93-048 where the Full Court set out at [41] the authorities and explained how an application based, as I understand, as is this one, on the risk of confidential information being divulged should be approached:

    Thus ‘a practitioner who wishes to cease acting for one party and to continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act.  In such a case the court will not weigh conflicting evidence as to confidence.  It will act upon the evidence of the client who swears that he has made the confidential communication.’

13. I have said as much already. McMillan went on to refer to another case, Thevenaz v Thevenaz (1986) FLC 91-748:

    It is my view that in this case the lawyer should not continue to act on behalf of the wife.  It may well be that the risks were he to do so are more theoretical than practical.  However, it is asserted and not contradicted that the material in the file does relate to confidences exchanged in the course of the former firm previously acting on behalf of both parties and would embarrass the husband.  It is of the utmost importance that justice should not only be done but should appear to be done.  In the circumstances of the present case, there is a risk which may well be merely theoretical but still exists, that justice might not appear to be done.

14. I consider that confidential information has been disclosed to Ms Romeo.  I consider it is likely to be of marginal relevance but as I have not heard the case, I am not entirely sure what might become relevant in the trial.  I think in those circumstances that some degree of caution should be exercised, and accordingly, I am satisfied that confidential information has been disclosed and, while I think it is very likely to be of theoretical significance, I think that, in the circumstances, it is not appropriate for Ms Romeo to continue to act in the case.  Accordingly, I propose to make an order restraining her.

15. In making this order I have taken into account the well established principle that a client should be able to choose the lawyer of his or her own choosing but, in making that decision, I bear in mind in particular that the Independent Children’s Lawyer, Ms Marris, is not a party and there other persons who can adequately act as counsel for her.  So I propose to make the order. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 11 May 2018