Hiroma and Anor and Hiroma and Anor

[2008] FamCA 901

FAMILY COURT OF AUSTRALIA

HIROMA AND ANOR & HIROMA AND ANOR [2008] FamCA 901

FAMILY LAW – LEGAL PRACTITIONERS - Conflict of interest

1st APPLICANT: Mr Hiroma (Snr)

2nd APPLICANT: Mrs Hiroma (Snr)

1st RESPONDENT: Mr Hiroma

2nd RESPONDENT: Ms Cho

FILE NUMBER: SYF 3591 of 2006

DATE DELIVERED: 24 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 24 September 2008

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Ms Black

SOLICITOR FOR THE 1ST APPLICANT:

COUNSEL FOR THE 2ND APPLICANT: Mr Watkins

SOLICTOR FOR THE 2ND APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT: Ms Gibbons

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT: Ms Gibbons

SOLICITOR FOR THE 2ND RESPONDENT:

Orders

1. The application is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3591/2006

MR AND MRS HIROMA (SNR)

Applicants

And

MR HIROMA

First Respondent

MS CHO

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. In these proceedings, at the end of the second day of the hearing, Ms Black, on behalf of the father, made an oral application that I should restrain the mother's Counsel and instructing solicitor from further acting for the mother in these proceedings.  She told me that the reason for this application is that originally, the solicitor and barrister had acted for the father in these proceedings.  That is certainly the case.  In fact, what had happened is that the mother brought proceedings and the father joined her in bringing those proceedings for children's orders against the paternal grandparents.

2. Originally, the mother and father regarded themselves as having the same interest, and consulted the current lawyers for the mother together.  The father became a party as the first respondent, the mother being the second respondent.  When the case was first mentioned before me it was on the basis that the mother and father were seeking the same orders in relation to the child, as against the grandparents.

3. However, by the time the final hearing commenced, the father had changed his attitude.  He was no longer represented by the mother's present lawyers.  He had his own representative and had changed sides to the extent that he was now supporting the applicants; that is, his parents’, case against the mother. 

4. I have been told that Ms Black, although she understood that the father had previously been represented by the mother's lawyers, did not appreciate the full extent of the information that the lawyers had obtained from him, and therefore brought the application for the restraints fairly late, but at the earliest opportunity, once she understood the full extent of the lawyers for the mother's involvement with the father. 

5. I have been informed that the lawyers took instructions from him and obtained instructions and drafted and filed affidavits on his behalf. 

6. I am quite unconvinced that the mother's lawyers ought to be restrained.  My reasons are not very complicated.

7. There is no doubt that where a lawyer obtains confidential information from a client, the lawyer acts improperly if that information is conveyed to anybody against that client's interest.  There is a fiduciary duty of confidentiality.  However, there seems, in these proceedings, to have been a failure by those acting for the father currently to carefully consider the implications of that situation. There seems to be an assumption that because a solicitor acted for a client, that the information the solicitor obtained and also provided to counsel acting for the client, is confidential.  There are circumstances, however, where information is not confidential. 

8. Here, what really happened is that the mother and father consulted a solicitor and counsel for the purpose of jointly pursuing their claims in relation to children's orders against the grandparents.  In doing so, there is little doubt that each parent intended that the other parent get the benefit of all of the information he or she conveyed.  That information, so far as the father conveyed it to the solicitor, was intended to be conveyed to and used by the mother and was simply not confidential as between himself and the mother.  It was, in fact, the opposite.  The father intended the mother to know all of the material; all of the facts, which he could put forward in these proceedings at that time.  Anything that the barrister and solicitor acting for him discovered from him, either orally or simply by their observations of him, for example, was not intended to be confidential.  It was intended to be part of the pool of material that the mother and father could provide to their lawyers to help them each succeed in a case against the applicant grandparents, being the father's parents.

9. Before the father changed sides, he ceased using the same solicitors.  It ill behoves him to claim now that the material that suited him to provide the mother with at the time should be confidential as against the mother and, in fact, to make this claim on the second day of the hearing, a claim which is intended to prevent the mother from continuing with the same legal advisers, something which would be grossly unfair to the mother, apart from the fact that it is a claim based upon confidentiality when there is none. 

10. This is an entirely unmeritorious application, and I shall dismiss it.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: 2 October 2008