Needham & Shao (No 2)

[2023] FedCFamC1F 326

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Needham & Shao (No 2) [2023] FedCFamC1F 326

File number(s):

SYC 5643 of 2020

Judgment of:

ALTOBELLI J

Date of judgment:

24 April 2023

Catchwords:

FAMILY LAW – LEGAL PRACTITIONERS – Discharge – Where the mother sought for the father’s counsel to be disqualified from appearing for the father – Where the mother has a personal relationship with the father’s counsel and his family – Where the father has a close personal and professional relationship with his counsel and his family – Where the Court finds it is in the interests of the administration of justice that the father’s counsel be restrained from representing him.

Legislation:

Family Law Act1975 (Cth)s 120NA

Cases cited:

Charisteas & Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160

Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181

Division:

Division 1 First Instance

Number of paragraphs:

20

Date of hearing:

24 April 2023

Place:

Sydney

Solicitor for the Applicant:

Swifte Law

Counsel for the Respondent:

Mr W

Solicitor for the Respondent:

O’Brien Solicitors

ORDERS

SYC 5643 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SHAO

Applicant

AND:

MR NEEDHAM

Respondent

order made by:	ALTOBELLI J
DATE OF ORDER:	24 APRIL 2023

THE COURT ORDERS THAT:

1.The interim defended hearing in this matter is adjourned to 8 May 2023 at 9am.

2.Mr W, barrister, not represent the Respondent father in these proceedings.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Needham & Shao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)

ALTOBELLI J:

1. In this matter I provide the following ex-tempore reasons.  By way of the mother’s (“the mother”) Application in a Proceeding that was filed on 10 March 2023, the mother seeks an order that Mr W of counsel be disqualified from appearing for the father (“the father”) at the hearing of this matter.  The application is opposed by the father.  The matter is listed before me to determine a range of fairly significant interlocutory matters apart from this issue, for example, the mother is seeking a number of orders in the form of spousal maintenance and in her case outline she did raise parenting orders, but that is not in her application and therefore it is not before the Court, and in any event it would be most unwise to deal with this in the absence of the Independent Children’s Lawyer. 

2. The matter is part heard to 31 July 2023.  The substantive proceedings relate to a child, X, who is three years old (“the child”).  He currently lives with the mother and spends time with the father.  The present reasons, however, simply deal with the application in relation to the father’s counsel.  I want to acknowledge up front that we are talking about perceptions and we are not talking about realities here. 

3. The evidence relied on by the mother is referred to in her case outline document, including: 

   (a)Response to Final Orders filed 1 September 2020;

   (b)Application in a Proceeding filed 10 March 2023;

   (c)Notice of Child Abuse, Family Violence or Risk filed 10 March 2023;

   (d)Financial Statement filed 10 March 2023;

   (e)Her affidavit filed 10 March 2023 (“M1”) – Disqualification of Counsel, Spouse Maintenance and Y Health Insurance issues;

   (f)Her affidavit filed 10 March 2023 (“M2”) – Parenting issues; and

   (g)Expert Report of Mr S dated 7 April 2021.

4. The evidence relied on by the father was outlined in an email received on 21 April 2023, including:

   (a)His affidavit filed 17 April 2023;

   (b)Written submissions filed 17 April 2023; and

   (c)Response to an Application in a Proceeding filed 17 April 2023.

5. The father was represented by Mr W and the mother by her solicitor, Ms Swifte. 

6. The applicable law was extensively discussed in the written submissions of Mr W and for that I am grateful. Those submissions are dated 16 April 2023.  The Court is comfortably satisfied that the first basis for disqualification is not established on the facts before the Court.  The mother has not been able to establish that there was a legal relationship between her and Mr W that involved confidentiality.  This means that if the mother is to succeed, it must be on the alternative basis, that is, what has been referred to as the “administration of justice basis”, or in other words, that it is in the interests of the administration of justice that Mr W be restrained from representing the father. 

7. The applicable law on this point has been recently stated by the Full Court of the Family Court in a decision called Charisteas & Charisteas [2022] FedCFamC1A 160 (“Charisteas”), which was delivered 7 October 2022.  This is a decision of the Full Court consisting of the Chief Justice, the Deputy Chief Justice and Aldridge J.  The relevant paragraphs are found in [36]–[39] of the judgment:

   36Regrettably, it appears that the primary judge was led into error by the parties in these proceedings, who contended that the relevant principle to be applied in determining whether a legal practitioner should be prevented from acting for a party, in the interests of the protection of the integrity of the judicial process, is the principle set out above.

   37The correct test that should have been applied by the primary judge, in determining whether a legal practitioner should be restrained from acting on behalf of a party, is that which is adumbrated by the Full Court of the Federal Court of Australia (Besanko, Lee and Abraham JJ) in Porter v Dyer (2022) 402 ALR 659 who applied, with approval, the following statement of principle by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475:

   39.The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:

   (a)The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).

   (b)The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

   …

   (Emphasis added)

   38Additionally, we refer to and adopt that which was said by Thomas J in a New Zealand case, Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590 where, in commenting on the role of legal practitioners as officers of the Court, his Honour stated:

   In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent. Independence is a function of counsel. The Court is entitled to assume that solicitors and counsel appearing before it possess that independence. Solicitors not only owe a duty to their clients to do the best for them but also owe an overriding duty to the Court. The same overriding duty is owed by counsel who have been granted a right of audience to appear in this Court. As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called in question.

   39Significantly, that conflict of interest can arise where the personal or reputational interest of the legal practitioner is at stake in the proceedings. In that respect, in Mitchell v Burell [2008] NSWSC 772, Brereton J stated that:

   20.      … [The] line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act.

8. However, I note that certainly for the purposes of the family law jurisdiction, the Full Court has made it very clear that the test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting for their client, in the interests of the protection of the integrity of the judicial process and the appearance of justice. 

9. There is no doubt from the Full Court’s decision that the same principles apply to counsel and, indeed, the Full Court’s decision did relate to counsel.  The Full Court refers to a number of other cases, but there is no need for me to specifically refer to them.  However, this Court does accept the written submissions on behalf of the father in which he adopts a number of points made by Brereton J in the Supreme Court of New South Wales in Kallinicos v Hunt (2005) 64 NSWLR 561 at [76] (“Kallinicos v Hunt”).  And, the Court believes that the principles that I am about to enunciate are not inconsistent with the Full Court’s decision in Charisteas.  In Kallinicos v Hunt, his Honour stated that:

   [76]The jurisdiction to exercise the power must be regarded as exceptional and should be exercised with caution.  Due weight needs to be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without undue cause. 

   …

10. And then lastly:

    [76]The timing of the application may be relevant in that the cost, inconvenience or impracticality of requiring a lawyer to cease to act may provide a reason for refusing to grant the application. 

11. Mr W very helpfully referred to a number of cases in his submissions.  And doing the best I can in the very short period of time I have had to consider the matter, all of them seemed to involve a pre-existing legal relationship between the parties.  This is not such a case.  However, I am satisfied that the principles referred to in Charisteas at [36]–[39] are of general application and should not, and, in any event, do not need to be limited to cases where there was a pre-existing relationship of lawyer and client between the applicant and the lawyer sought to be excluded. It seems to me that the underlying rationale of the principle is not whether a relationship at law existed between the applicant and the lawyer sought to be excluded. The underlying rationale is protecting the integrity of the judicial process and the appearance of justice irrespective of the existence of a relationship. All of this must be assessed in a particular context and the class of cases is not closed.

12. The mother’s evidence on this issue is found in her affidavit of 7 March 2023, commencing from paragraph 32, and I will summarise her evidence as best I can.  On becoming aware of the possibility that Mr W would represent the father, she raised concerns as early as December 2022.  She describes Mr W as a barrister who is the father’s mentor, both in his professional and personal life.  The father does not dispute this in his affidavit of 17 April 2023.  The mother met Mr W and his partner and they became friends.  They travelled to New Zealand and stayed in the same home for several days.  The mother spent time at the business of Mr W’s partner.  Mr W shared information about himself, his wife, his ex-wife, children and grandchildren with the mother.

13. He disclosed personal information about his separation.  The father told her that Mr W is a thrillseeker.  Again, this is not denied by the father in his affidavit.  Mr W purchased the father’s motor vehicle.  The father described Mr W as a “[…] law gun who isn't scared of anyone”.  Again, the father did not deny this.  Mr W and his partner visited the family home of the mother and the father in this case and discussed personal matters.  The father told the mother that he reached out to Mr W for advice about their marriage and it was Mr W who made recommendations about therapy.  Mr W and his partner worked on legal documents in relation to the mother’s sister’s daughter, AA. 

14. They dined together at Mr W’s home.  The mother alleges that Mr W and his partner had discussions with her about the father and the relationship issues that the mother was having with him.  Importantly, at paragraph 53 of her affidavit the mother deposes that Mr W said to her, “I can’t go against [Mr Needham] as he has been my friend for many years”.  At paragraph 54 the mother describes her emotional reaction on 27 January 2023 when she first saw Mr W appear for the father.  She describes it as “paralysing” for her.  She deposes at paragraph 54: “I could not accept that a man who knew so much about me, my marriage, our difficulties and had advised [Mr Needham] about it could represent him and question me”.

15. At paragraph 55 of her affidavit the mother describes the fear, anxiety and sense of panic that she would have if she was being cross-examined by Mr W.  Now, Mr W, of course, could give no evidence.  The test is not whether a fair-minded, reasonably informed member of the public would conclude, but rather, might conclude that the proper administration of justice requires that a barrister, in this case, be prevented from acting for their client in the interests of the protection of the integrity of the judicial process and the appearance of justice.

16. The context of this case must not be overlooked.  It is a part-heard, finely-balanced, complex case.  The matter has a very long history. The parents are engaged in intractable, escalating and often uncontrolled conflict about their son, who is caught in the metaphorical crossfire of that conflict.  It is akin to a power struggle between the parents.  There is a pervasive mistrust between them.  They each make very serious allegations against the other, including family violence, in the broadest sense, which includes control, all of which are denied.  Indeed, this Court observes that there is almost a measure of desperation in each case, particularly as the final hearing on 31 July 2023 approaches.  The intensity and the high levels of emotion in this case would not be unobserved by the fair-minded, reasonably-informed member of the public.

17. The need for sensitivity and child focus would, I believe, also be apparent.  Mr W contends, in effect, that the evidential basis of the mother’s claim has not been established in that, for example, adverse findings of credit are not only available from the material before the Court, but should be made, for example, casting serious doubt about her claims to be in fear and anxiety at the prospect of being cross-examined by Mr W.  The Court disagrees.  The matters alleged should be taken at their highest.  As this matter is part-heard, to enter into credit findings runs the risk of derailing the final hearing of this matter. 

18. The fair-minded, reasonably-informed member of the public would not be oblivious or insensitive to the wife’s perception of the experience of being cross-examined, not by counsel whose professional independence cannot be called into question because of the distance and objectivity of being a stranger, but rather by counsel who, as a matter of perception, by virtue of a previous relationship with the mother, has a much more nuanced and personal insight not just into the issues in dispute but the personality and character of the mother.  Moreover, a fair-minded, reasonably-informed member of the public cognisant of the overriding duty owed by counsel to the Court might be concerned that Mr W, by reason of his long and close relationship with the father, might lack the requisite objectivity to give evidence devoid of any conscious or unconscious bias arising out of that long, close personal and professional relationship.

19. The proper administration of justice in this case is served by both parents being represented by legal representatives and counsel who are observably independent and whose first overriding duty is to the Court. The Court is satisfied that the fair-minded, reasonably-informed member of the public might not conclude that this could be achieved in this case if Mr W represents the father. The alleged impecuniosity of the father is one factor that the Court considers, but places no great weight as a relevant consideration. Section 102NA of the Family Law Act1975 (Cth) (“the Act”) would otherwise operate to prevent the father cross-examining the mother if he were unrepresented, that is to say, if he were representing himself.

20. But a scheme is established under the Act by the Legal Aid Commission of New South Wales that would ensure that he had access to legal representation, including counsel for the purposes of cross-examining the mother at the final hearing. There is still adequate time for such representation to be arranged. There is no prejudice to the father arising out of any delay, as it was raised by the mother promptly and the matter was listed as soon as the Court could allocate time. Having regard to those reasons, the Court orders that Mr W, barrister, not represent the father in these proceedings.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Altobelli.

Associate:

Dated:       24 April 2023