LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and PAPAMIHAIL - [2009] WASAT 239

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PRACTICE ACT 2003 (WA)

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and PAPAMIHAIL [2009] WASAT 239

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR J MANSVELD (MEMBER)
MR M ODES QC (SENIOR SESSIONAL MEMBER)

HEARD: 10 AUGUST 2009

DELIVERED : 3 DECEMBER 2009

FILE NO/S: VR 5 of 2009

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
GEORGE PAPAMIHAIL
Respondent

Catchwords:

Legal practitioner - Allegation of unsatisfactory conduct or professional misconduct - Whether practitioner knowingly or recklessly misrepresented terms of court order - Weight to be given to expert evidence as to the proper construction of a court order - Whether practitioner's construction arguable

Legislation:

Legal Practice Act 2003 (WA), s 180(1)
Family Law Act 1975 (Cth), s 61B, s 61D, s 61D(2)
Family Court Act 1975 (WA)
State Administrative Tribunal Act 2004 (WA), s 32(2)(a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Dr A Dickey QC and Ms P Le Miere
Respondent: Mr R Viner AO, QC and Mr M Cuerden

Solicitors:

Applicant: Legal Practitioners Complaints Committee
Respondent: Fiocco's Lawyers

Case(s) referred to in decision(s):

Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1980) 33 ALR 251
Legal Practitioners Complaints Committee and McCormack [2009] WASAT 4
Pepsi SevenUp Bottlers Perth Pty Ltd v Federal Commissioner of Taxation (1995) 132 ALR 632

REASONS FOR DECISION OF THE TRIBUNAL

Summary of Tribunal's decision

The Legal Practitioners Complaints Committee brought proceedings alleging that a legal practitioner, Mr George Papamihail, was guilty of unsatisfactory professional conduct or professional misconduct. The allegations were that he wrote two letters in which he knowingly or recklessly misrepresented the terms and effects of family court orders. The letters were written to the school at which the practitioner's client's children attended.
During the hearing, the Tribunal ruled that the practitioner had no case to answer in relation to the first letter.
The Tribunal heard expert evidence form two experienced family lawyers whose opinions agreed that the practitioner's construction of the orders was wrong but differed as to whether is was reasonably arguable. It also heard from the practitioner who vehemently maintained that when he wrote the letters, he believed that what he wrote reflected the effect of the orders.
The Tribunal, while expressing reservations as to the value of expert opinions on questions of law, determined that it could not be said that the practitioner's construction of the orders was unarguable even though it was incorrect. On reaching that conclusion, the Tribunal had regard to the background to the proceedings against which the practitioner formed his opinion. It accepted that the practitioner did not knowingly misrepresent the order and decided that, given that the construction of the orders adopted by the practitioner was arguable, the letters could not be said to have been written recklessly. Accordingly, it dismissed the complaint.

Application and grounds

In this application, the Legal Practitioners Complaints Committee (Committee) has referred two complaints against Mr George Papamihail (practitioner) to this Tribunal under s 180(1) of the Legal Practice Act 2003 (WA).
It is alleged by the Committee that the practitioner was

Allegation 1

1.on or about 9 July 2004 guilty of unsatisfactory conduct [alternatively professional misconduct] in the course of acting for [H] by:
(a)unprofessional conduct; or
(b)conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner; or
(c)both, in that the practitioner:
(i)sent a letter dated 9 July 2004 to the [H's children's] Primary School (the school) in which he knowingly or recklessly misrepresented the terms of the orders made pursuant to the Family Law Act 1975 on 2 December 1999 by the Court of Petty Sessions, Perth, (1999 Orders) and the consequences of the 1999 Orders for the mother of the children, [W] (Mother), the school and/or Acting School Principal of the School, to advance his client's case.
and
(ii)threatened contempt proceedings against the school if it permitted the Mother to have contact with her children [A] and [L] without a proper basis for doing so, to advance his client's case.

Allegation 2

2.on or about 26 July 2004 guilty of unsatisfactory conduct the course of acting for [H] by:
(d)unprofessional conduct; or
(e)conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner; or
(f)both

in that the practitioner sent a letter dated 26 July 2004 to the school in which he knowingly or recklessly seriously misrepresented the terms of the orders made pursuant to the Family Law Act 1975 on 23 July 2004 by the Court of Petty Sessions, (2004 Orders) and the consequences of the 2004 Orders for the Mother, the school and/or Acting School Principal, to advance his client's case.

It should be noted at this stage, that while the complaints related to two letters written by the practitioner on 9 and 26 July 2004, an application to dismiss the complaints was made at the close of the Committee's case in relation to both on the basis that there was no case to answer. After hearing arguments from the legal representatives, the Tribunal upheld the application in relation to the earlier letter, but dismissed it in relation to the letter dated 26 July 2004 (the letter). Ex tempore reasons on the application were given by the Tribunal through the President and are to be found in the transcript of the proceedings.
We therefore furnish these reasons only in relation to the letter of 26 July 2004 addressed to the acting principal of the primary school where the children of H and W are pupils. The letter relevantly provides as follows:
We inform you that interim orders have been determined by the Family Court pursuant to a hearing held on 23 July 2004 in regards to [A and L].
In regard to [W] (the biological mother), she is to have contact with the children as defined. The orders are similar in nature to the previous final orders which were provided to you and made by the Family Court when both [W] and the father [H] agreed to the orders made by consent. Accordingly, subsequent to the hearing the Court has determined the degree, duration and nature of the contact. The orders do not include [W] attending at the school at any time, for any purpose to exercise any contact with [A or L]. The orders do not contain any provision for her to contact the children in any way, shape or form. That is, in person, through any agent or by telephone whilst they are at school. During this period the children are in the complete care and control of [H and his new wife] and not [W].
As stated earlier, any attempt by [W] to exercise any contact contrary to these orders while the children are at school will be in contempt of the orders. If the school assists or aids and abets her in breaching these orders, our clients will consider that you have assisted [W] in breaching the Family Court orders and thereby will be in contempt. (Emphasis added)
The orders referred to in the letter were made by the Court of Petty Sessions on 23 July 2004 (2004 Orders) allowing an application by W to amend an earlier order made on 2 December 1999 in which residence of the children was awarded to H and detailed contact provisions were spelt out for W (1999 Orders). We deal with the 1999 Orders more fully below.
The 2004 Orders made provision for contact of W with the children at certain weekends during school terms, at specified times during school and summer holidays and at Christmas. Telephone contact and liberty to liaise with their school were also spelt out.
For present purposes, we refer to those paragraphs of the 2004 Orders relevant to the argument proffered by the parties before us. Paragraphs 3 and 6 of the 2004 Orders provide as follows:
...
3.The Applicant ([W]) have reasonable telephone contact with the said children defined to include but not limited to Wednesday and Sunday evenings between 6.30 and 7 pm (Western Standard Time).
...
6.Both parties have liberty to liaise with the children's school concerning the children's education, to obtain information concerning the children's school progress and activities and to attend functions and events at the children's school that parents would ordinarily be invited or expected to participate in.
...
The Committee contends that the letter to the acting principal was written by the practitioner who 'knowingly or recklessly seriously misrepresented' the terms of the 2004 Orders. In laying that complaint, the Committee relied on the provisions of s 61B to s 61D of the Family Law Act 1975 (Cth) which relevantly provides as follows:
61BMeaning of parental responsibility
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
61CEach parent has parental responsibility (subject to court orders)
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1:This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2:This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3:Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or remarrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note:Section 111CS may affect the attribution of parental responsibility for a child.
61DParenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.
The Committee, relying on arguments to be considered below, submits, on the basis of the provisions of the 2004 Orders and the Family Court Act 1975 (WA), that the practitioner is guilty of unsatisfactory and unprofessional conduct or conduct falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner or both. In its statement of contentions, the Committee avers that in sending the letter, the practitioner deliberately, or in reckless disregard as to whether it was true or not, misrepresented to the school, inter alia, that the 2004 Orders were similar to the 1999 Orders, did not include W attending the school at any time for any purpose to exercise any contact with the children and did not contain any provision for W to contact the children in person while they were in school. The contention is further that the practitioner misrepresented to the school deliberately or in reckless disregard for the truth that the 2004 Orders meant that any attempt by W to contact the children while at school would be in contempt of those orders and that the school would be assisting W in breaching those orders and would thereby also be in contempt.
Both the Committee and the practitioner were represented by senior counsel. Each party called an expert in family law to express an opinion as to the interpretation to be given to the relevant statutory provisions and the terms of the orders. While it is clear that this Tribunal is not bound by the rules of evidence (s 32(2)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and that the legislature envisaged a greater flexibility in relation to the nature of evidence admissible before it in order to assist in arriving at its decisions, the Tribunal, constituted under s 437 of the Legal Profession Act 2008 (WA), is adequately equipped and does not generally require expert evidence to interpret statutory provisions or the contents of orders or documents. While the evidence of experts is gratefully received in esoteric matters of science, technology or issues in respect of which the Tribunal itself has no specialised knowledge, it is in as good a position as any expert in any legal area to interpret statutes and documents (see Federal Commissioner of Taxation v Hamersley Iron Pty Ltd(1980) 33 ALR 251 at 272; Pepsi SevenUp Bottlers Perth Pty Ltd v Federal Commissioner of Taxation (1995) 132 ALR 632 at 639 and the authorities there cited).
Accordingly, assuming that the evidence of the expert witnesses before us is admissible because of the wide provisions of the SAT Act, little weight can be attached to such evidence. It is, after all, the function of the Tribunal and not of experts, to interpret what a statutory provision, a court order or a document, containing ordinary, everyday and non-technical language means. That function, in such circumstances, cannot be abdicated or delegated by the Tribunal, to an expert. The fact that the parties both engaged experts to express opinions on the proper construction and effect of the orders does, however, tend to suggest that they contest that Mr Papamihail's alleged error is not immediately obvious.
Before dealing with the evidence furnished and the submissions made in relation to the complaints, it is necessary to set out the background giving rise to those complaints.

Background

The complaints arise out of a family dispute in which the practitioner represented H. The dispute was longstanding and related to a number of parenting orders made from time to time in relation to the two children of the marriage, A and L, the latter born in July 1995, soon after the parents had separated in February 1995. L was diagnosed in May 1997 as suffering from autism.
By a consent order on 2 December 1999, H was granted fulltime residence of the two children and assumed the daytoday care and responsibility for them as from 18 December 1999. W was given certain contact with the children subject to a letter from a medical practitioner certifying her capable of caring for the children. The certificate was duly provided.
The contact or access provisions of the order of December 1999 are detailed but relevantly provided that:
… the children to have contact with [W] (the Mother) to be defined as follows and subject to the Mother providing the Court a letter from a medical practitioner certifying her capable of caring for the children:
(a)For a period of 3 months commencing 2 January 2000:
(i)each alternate week form 4 pm Saturday to 5 pm the following Sunday;
(ii)on the intervening week from 3 pm Friday to 4 pm the following Saturday ...
(Emphasis added)
The further paragraphs of the 1999 Orders contained similarly detailed provisions dealing with W's access to the children during school holidays, Christmas, summer holidays, Easter, the children's birthdays, and Father's and Mother's Days.
At the commencement of the hearing, Dr Dickey QC (who appeared with Ms Le Miere for the Committee) handed in a Bundle of Documents (Exhibit 1) while Mr Viner QC (who appeared with Mr Cuerden for the practitioner) handed in an affidavit of the practitioner (Exhibit 8) which included numerous annexures. Together, Exhibit 1 and the annexures to Exhibit 8 outline in a fair amount of detail, the history of the relationship and correspondence between the parents of the children and their respective legal representatives.
The practitioner was engaged by H in June 2004 and was handed the file of the correspondence passing between the legal representatives and between H and W prior to the practitioner's engagement. The letters between H and W indicate that from February 2000 to June 2000, they informally varied the contact provisions of the 1999 Orders in a substantial manner when, for a variety of reasons, either of them was unable to comply with or meet their contact commitments or entitlements: see the five letters between the parties in Exhibit 8, Annexure D.
On 20 July 2000, H wrote to the Currambine Primary School where the children were attending complaining that W had been 'insisting on receiving information such as reports etc with regards to my sons ...'. H indicated that he had been given full custody of the boys and requested that all enquiries for such information be directed to him. The letter (Exhibit 8, Annexure E) makes reference to his then solicitor having spoken to the principal.
A memorandum sent by H to his then solicitor dated 15 August 2000 (Exhibit 8, Annexure F) suggested to her (the solicitor) that the Family Court be approached to clarify the 1999 Orders 'so that all parties to it and including schools know the parameters of it. At present it is too broad and is causing major problems both now and will in the future'. In that memorandum, H quotes the school principal as having taken legal advice and as saying that 'until the Court Order as it stands is further clarified by the Family Court, I will allow same contact and correspondence to both parties'.
The above memorandum triggered a letter from H's then solicitor to the solicitor representing W dated 28 August 2000 (Exhibit 8, Annexure G). In that letter, the solicitor indicated that her interpretation of the legal position of H in relation to the children differs from theirs. The letter relevantly expresses the following views:
To suggest that your client is 'entitled to be involved in all issues concerning the children ...' is impractical and unworkable when parties are separated, particularly when there is conflict between them. It is inevitable that the resident parent will make the majority of decisions in relation to the children.
Our client in having the major responsibility for the children's day to day care and control must be able to make decisions in relation to education, including enrolling the children, dealing with teachers, resolving problems etc with full knowledge of the facts. This is not possible if your client is dealing with the school independently of our client. Further, it makes it very difficult for the school to deal with both parents who have different ideas in relation to the children.
The solicitor offered to provide W with copies of the children's reports and details of any awards within seven days of issue as well as any school newsletters and proceeds:
Our client is concerned that your client's involvement with the children's schooling will undermine our client's role as the resident parent and will therefore have an adverse affect on the children. At the present time, your client's contact with the children is in accordance of the Orders of 2nd December 1999. There is no provision for your client to have contact with the children at school.

The letter concluded by stating that, according to H, W had requested that contact be changed six times in the past eight months and requested that there be a limit of changes to no more than four changes per year in order to achieve certainty in the arrangement. H's solicitor further stated that if a contact is missed, the next contact would be the next scheduled visit. The latter sentence is an allusion to previous correspondence between H and W in which requests were made by W to exchange contact visits for other dates where the scheduled contact in the terms of the 1999 Orders was missed.
On 7 July 2001, W wrote to H and his present wife thanking them for sending her the children's school reports and portfolios. She emphasised the importance to her of following the children's progress 'having reluctantly agreed to your request that I not have contact with the school'. There follows a detailed request to rearrange contact times, some of which are agreed, others not (Exhibit 8, Annexure I and six similarly detailed letters between the parties constituting Annexure J to Exhibit 8).
On 21 November 2002, W's solicitor wrote a letter to H (Exhibit 8, Annexure K) noting that she has relocated to Sydney and has remarried. The gravamen of the letter is that because of those changed circumstances, the contact arrangements of the 1999 Orders have become outdated and that her client wished new arrangements to be made. Detailed suggestions were made for contact with the children when W is in Sydney and when she is in Perth. One of the many suggested alterations to the existing status quo was that '[W] and/or her parents shall be able to attend school functions where either of the children are participating including sports days, presentation ceremonies and, subject to consultation with [H], parentteacher functions'.
On 5 December 2002, H responded to the above letter in great detail (Exhibit 8, Annexure L). Some of the suggestions made were agreed to; others not and in some instances, counterproposals were made. In relation to the suggestion of W attending school and parentteacher functions, H responded that that issue 'has already been discussed in years previous and my attitude to this is that by [sic] two 'mums' actively involved in the every day running of the boys' activities, I believe would be disruptive for the school teachers and lead to further discontent [sic] to the current status quo'.
The issue of W's contact with the children at school was indirectly touched upon when H requested W to pay the children's school fees. In a letter to him on 21 February 2004, W rejected the request to pay school fees 'as you have always excluded me from all decisions relating to their education, including preventing me from attending school functions and from communicating with the children's teachers' (Exhibit 8, Annexure O).
On 10 May 2004, W wrote to H indicating that there were a number of issues between them which needed to be resolved, that she had consulted a solicitor and that she had been advised that under the new family law procedures, a mediation was required in order to agree upon the issues prior to any Family Court action. She attached a draft Consent Order to her letter (Exhibit 8, Annexure P). Significantly, the only proposals she made in relation to the children and the school were that they remain in the school where they were at the time, unless the parties came to some alternate agreement in writing (para 15 of the draft) and that 'the Father is to provide to the Mother by registered mail of [sic] copies of the children's school reports, merit awards, newsletters and Term calenders [sic]' (para 29 of the draft). There was no suggestion that she be able to contact the children at school or that she communicate with their teachers.
From a letter written by H to W on 27 May 2004, it appears that she unexpectedly visited the school. H alleged that she told one of the children not to let him know that she had attended. He alleged that in attending the school, she was 'in breach of the current orders (access on alternative weekends, no arrangements made for weekdays)' but stated there was 'no reservation of her continuing to go to the school although you are in breach of the current orders … as it reaffirms to you that we are doing a brilliant job in an area of which [sic] you have not contributed'.
On or about 10 June 2004, W lodged an application to the Family Court supported by a lengthy affidavit with supporting annexures (Exhibit 8, Annexure S). In the affidavit, W set out the history and background of the matter including the informal contact arrangements made with H from time to time as well as her complaints relating to the failure to comply with such arrangements. Among those complaints is one of a failure by H to provide her with copies of the children's school reports over the previous two years despite requests therefore (para 38 of Annexure S).
In the final orders sought by her, W listed 18 orders including one compelling H to provide copies of school reports, merit awards within seven days of receipt thereof (Exhibit 1, page 25, para 14).
It was more or less at this stage that the practitioner was engaged to represent H (Exhibit 8, para 4). The response of H to W's application emanated from the practitioner's office and was dated 7 July 2004.
According to the practitioner's affidavit, which was tendered in to the Tribunal as his evidence in chief, he was handed the correspondence between the parties referred to above which set out the history of the dispute relating primarily to W's contact with the children (Exhibit 8, para 4). He was aware of the contents of the correspondence when he wrote the letters forming the subject of the two complaints.
H's response to W's application (Exhibit 1, page 27 to page 33) contained a number of counterapplications seeking orders for injunctions against W, restraining her from contacting the children or telephoning them at school, or attending the school other than as agreed between the parties (Exhibit 1, page 33, para 6 to para 8).
The first letter was written on 9 July 2004 which was prior to the hearing of the application on 23 July 2004. The practitioner did not attend the hearing of the application but briefed a barrister to do so. A clerk of the practitioner's office was in attendance at the hearing.
The hearing was relatively short (Exhibit 1, page 35 to page 49). Most of it was directed to W's requests for contact with the children during school and summer holidays, birthdays, travel arrangements for the children travelling from Perth to Sydney, where W resided and the cost of such travel and telephone contact. A brief reference was made to the injunctions sought by H. W opposed them and stated there was no justification for them; H's barrister indicated that because there was no evidence from either party on the issue, it was difficult for him to press for the injunctions sought (Exhibit 1, page 42 to page 43).
The magistrate adjourned the hearing for a short period, delivered judgment and issued temporary orders. She reminded the parties that the Court did not have the benefit of evidence by the parties or their witnesses (Exhibit 4, page 2), indicating that the orders issued 'are primarily those that I consider necessary between now and the conciliation conference and up until the trial' (ibid, page 3). (The relevant portions of the 2004 Orders for present purposes are quoted above.) The judgment of the learned magistrate (Exhibit 4) reveals that the issue of H's requested injunctions played but a small part in the proceedings. She found that the injunction 'was not pressed and perhaps there was some misunderstanding about that' (ibid, page 8) and indicated her intention to issue an order in terms of para 6 of the order actually issued.
The practitioner's clerk informed him of what transpired at the hearing. The practitioner stated he had not seen the judgment but he understood from what he had been told that the order permitted W to liaise with the school to obtain information and attend functions which parents may be expected to attend. He understood that this meant that W could not contact the children or be present in the class room during school hours (Exhibit 8, para 37).
Under instruction from his client and on the basis of his understanding, the practitioner dictated the letter to the school to his secretary over the telephone. The 2004 Orders had not at that stage been extracted and issued. In dictating the letter, he said that he had regard to the children's best interests, the history of the matter and his client's instructions that he wished to prevent W from making unexpected visits to the school which the client stated upset the children, especially L, the autistic child (Exhibit 8, para 38 to para 39).

The expert evidence

In support of its case, the Committee called one witness. Mr Robert Davis is an acknowledged expert in family law and was requested to furnish an opinion in response to one furnished by an expert consulted by the practitioner. His statement (Exhibit 5), which referred to his response (Exhibit 1, page 75 to page 76) was tendered as his evidence in chief. The burden of his evidence was basically a criticism of the practitioner's expert's opinion. He expressed the view, after stating there was no case law on the subject, that 'no competent legal practitioner practising in family law could have reasonably taken the views set out by the practitioner in his letters to the school' (Exhibit 1 page 76).
In crossexamination, Mr Davis stated that the Committee's letter of instruction to him (Exhibit 1, page 69) included a bundle of documents. A perusal of the letter of instruction reveals that the only documents referred to herein were the 1999 Orders and 2004 Orders, the application of W and the counter application by H for injunctions referred to above and the affidavits of the parties in support thereof, the transcript of the hearing and the two letters written to the school. He was not given a copy of the reasons of the magistrate, nor had he seen the practitioner's affidavit (Exhibit 8) which contained the correspondence between the parties setting out the details of the background to the dispute and referred to above.
Mr Davis was shown a letter written by the legal officer of the Committee to W dated 28 April 2005 (Exhibit 8, Annexure W) written in response to W's complaint to the Committee. The legal officer expressed the view that on her reading of the 1999 Orders, W was entitled to contact with the children 'only during the times specified in the orders' and that his earlier letter to the school did not misrepresent the terms of that order. The legal officer, dealing with the letter to the school of 26 July 2004, stated that on her reading of the interim orders:
… they could reasonably be interpreted to permit you (the wife) to have contact with the children at school in a variety of circumstances. For example, the order would permit you to be a parent assistant at the school sports carnival during school hours.
She expressed the view that it was inaccurate for the practitioner to have advised the school that the orders did not contain any provision to contact the children whilst they were at school. The legal officer expressed the view that when the school permitted W to visit the children in the classroom it was '[p]resumably because the school considered that such activity fell within the bounds of 'functions and events at the children's school that parents would ordinarily be invited or expected to participate in'' (Exhibit 8, Annexure W, page 2).
Mr Davis disputed the legal officer's views stating that her conclusions were not those which a reasonably competent family lawyer should have reached.
The opinion of the practitioner's expert, Mr Martin Bartfeld QC was put to Mr Davis, who agreed that the conclusion reached by the practitioner was a 'misunderstanding of the law'.
The practitioner's expert, unlike Mr Davis, provided a very detailed opinion setting out the statutory provisions referred to above and analysing the legal position not only of the rights of the contact parent to visit the school but also the school's legal position in relation thereto (Exhibit 1, page 56 to page 68). Mr Bartfeld concluded inter alia (page 67) that 'the 2004 Orders contains a specific issues order in relation to participation in school activities. It is a permissive order rather than a restrictive order, although this interpretation is not free of doubt'. At page 68 of Exhibit 1, Mr Bartfeld further expressed the view that is was possible for a lawyer who did not undertake the depth of research undertaken by him for the purpose of the opinion:
[T]o reach a conclusion that contact at specified times is limited to those times. With the benefit of extensive research and specialist experience, I can say that in my opinion such a conclusion represents a misunderstanding of the law, but I would not dismiss an [sic] cogently mounted argument to the contrary without careful consideration.
He further expressed the view that a court might also find 'that restricting the mother's attendance at school was necessary to give effect to the residence order and was an exception to the generality of [s] 61D'. He finally opined that the questions posed could not be answered with such precision that enabled him to say that any view the practitioner formed was completely wrong.
Moreover, Mr Bartfeld expressed the view in his evidence that it could be argued that the presence of the phrase 'to include but not limited to' in relation to telephone contact in para 3 of the 2004 Orders and the absence of that phrase in para 6 (liaising with the school) indicated that the contact times in relation to the latter were intended to be restrictive rather than permissive as clearly evident under para 3.

The practitioner's evidence

The practitioner gave evidence, his affidavit and annexures thereto (Exhibit 8) constituting his evidence in chief. This evidence need not be set out as the background detailed above is largely taken from the annexures to that affidavit. He was subjected to a fairly rigorous crossexamination. He stated - as he deposed in his affidavit - that he asked his clerk whether an order was made in the hearing allowing W to enter the classroom, to which his clerk responded in the negative. In his words '[t]hat's all I wanted to know. That was the conduct we were complaining about'. He testified that he had dictated the letter over the telephone. He did not have the letter in front of him nor did he have para 6 of the Order in front of him.
He confirmed that the was aware of the provisions of s 61D which - as indicated above - stipulated inter alia that the parenting order did not take away or diminish any aspect of parental responsibility, but he took the view that that section was being limited by the order which the Court had made.
In reexamination, he explained that when he stated in the letter that 'the orders are similar in nature to the previous final orders' he meant that those orders defined the nature of the contact which could be made with the children. They did not - so he deposed - give her the right to unhindered contact. 'She could not contact the children when she felt like it.'

Did the practitioner knowingly or recklessly misrepresent the orders?

Counsel for the Committee argued that, in writing the letter, the practitioner 'knowingly or recklessly seriously misrepresented ' the effect of the 2004 Orders.
We are unable to accept the argument that the practitioner knowingly misrepresented the 2004 Orders. He took the view throughout - rightly or wrongly - that the terms of the order defined the contact which W was entitled to make during normal school hours. He repeated that view - sometimes over robustly - in his evidence and we accept his evidence that that was a view genuinely held by him.
The issue to be decided by the Tribunal is whether the practitioner, in adopting that view, acted recklessly, seriously misrepresenting the terms of the orders to the acting school principal.
It must be stressed at the outset that the Tribunal is not required to find that the practitioner's interpretation of the 2004 Orders is correct. The fact that his interpretation may be incorrect does not establish recklessness nor even negligence. Courts themselves occasionally misinterpret statutes, but it does not follow that their decisions are reckless or negligent. The Committee bears the onus of proving that the practitioner's conduct in sending the letter was reckless and that it was sent in disregard as to whether it was true or not. As was stated by this Tribunal in Legal Practitioners Complaints Committee and McCormack [2009] WASAT 4 at [97]:
... The Tribunal, must, in accordance with the so-called Briginshaw standard, feel an actual persuasion of the occurrence or existence of a relevant fact in determining whether or not the case has been made out ... (Emphasis added)
The Committee must therefore establish that the practitioner's interpretation was so wrong that no reasonably competent practitioner could have adopted it and that he was indifferent as to whether it was true or not.
In examining the practitioner's conduct, it is not sufficient to look at the relevant provisions of the statute and the 2004 Orders alone. One must also examine the background against which that order was made. It is clear from that background that one of the central issues in the contact dispute between the parties was the right of W to contact the school or to contact the children during school hours. There was nothing in the 1999 Orders which touched on that topic at all, but by consent over time, the parties agreed that H would allow copies of school reports to be furnished to W. She attempted to visit the children during ordinary school hours which gave rise to objections by H and his then solicitor, who also took a view similar to that taken by the practitioner in the letter to W's solicitor dated 28 August 2000 (Exhibit 8, Annexure G dealt with more fully at [25] above). W in fact accepted the position that she should have no contact with the school (Exhibit 8, Annexure I). Indeed W, accepting that she was not entitled to visit the children at school, used that as a justification for not agreeing to bear portion of the cost of their education (Exhibit 8, Annexure O).
When W made her application in 2004 for a new order, the proposals which she made in her draft consent order were confined to a receipt of the school reports, merit awards and school calendars: see [32] above. Although she had attempted to have direct contact with the school previously, which was denied her, she made no attempt, in launching the 2004 application, to include the right to visit the children at school or even contact their teachers at school during normal hours.
That was the mindset of the parties - rightly or wrongly - when the practitioner was first briefed with the earlier correspondence.
The practitioner stated that he was aware of the provisions of s 61D(2) outlined above. He formed the view that the exceptions referred to in that subsection limited the provision that a parenting order does not diminish or take away any aspect of the parental responsibility. That subsection provides for the limitation 'except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order'.
It is, in our view, at least arguable upon examination of the 2004 Orders, especially in para 3 and para 6, that the inclusion in para 3 of the phrase 'to include but not limited to Wednesday and Sunday evenings' in relation to telephone contact and the absence of that phrase in para 6 dealing with contact at school, manifested an intention that, in regard to telephone contact W was permitted to phone the children at other times (that is, it was permissive) whereas the school contact provision was restrictive.

We have previously stated that we derive limited assistance from the experts. To the extent that some weight can be given to their evidence, it should be noted that Mr Bartfeld's view coincides with ours in stating that the interpretation of the 2004 Orders is not free from doubt. He also agreed that the view expressed in the immediately preceding paragraph was arguable. While Mr Davis was more adamant about the only conclusion he stated a reasonably competent solicitor practising family law should have come to, he was not aware of the background material, nor did he deal with the issues in the same detail as Mr Bartfeld.
It should also be noted - as has been adverted to above - that both the practitioner's predecessor and the Committee's own legal advisor adopted an interpretation of the order similar to that of the practitioner. In all the circumstances, we cannot agree that the practitioner's view is unarguable nor that it was reckless in the sense contended by the Committee.
Dr Dickey also submitted in the alternative that the practitioner misrepresented the terms of the order in that para 6 expressly permitted the mother 'to attend functions and events at the children's school that parents would ordinarily be invited or expected to participate in' and that her attendance at the school during an ordinary school day fell within the ambit of that provision. We cannot agree with that construction. In our view, the attendance of parents during an ordinary school day is not 'a function' or 'event' nor is it something that parents would ordinarily be invited to or expected to participate in. There is no suggestion that W was invited to the school. The evidence before us is that she arrived unexpectedly. What the paragraph envisages are special functions or events such as prize givings, sporting events, parentteacher meetings or open days.
Counsel for the Committee levelled criticism at the practitioner for stating in the letter that 'the orders do not include [W] attending in school at any time, for any purpose to exercise any contact with [A and L]. The orders do not contain any provision for her to contact the children in any way, shape or form' and that that statement was reckless and clearly misrepresented the content of the orders. We agree that he may well have overstated the position but it was clear from the whole context of the letter that he was referring to contact with them at school during ordinary school hours. That had been a longstanding issue of which the school was aware. The school could not have been misled by that statement. While we agree that the letter was badly worded, we are of the view that there was no intention to misrepresent the position nor that, in the circumstances of the background well known to the school, it was reckless. It may well have been careless of him to have used terminology which was inaccurate, but carelessness is insufficient to sustain the allegations made.
Further criticism levelled at the practitioner by counsel was that he was precipitate in dictating and sending the letter without seeing the contents of the order or the magistrate's judgment. There is much to be said for such criticism but that conduct did not form the subject of any complaint and calls for no further examination or comment.
We therefore come to the conclusion that the Committee has failed to establish the allegations made against the practitioner. The complaint in relation to the letter is accordingly dismissed.

Orders

The application is dismissed.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT