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:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Needham & Shao (No 2)

Details

AGLC: Needham & Shao (No 2) [2023] FedCFamC1F 326
Case: [2023] FedCFamC1F 326
Decision Date

CaseChat Overview and Summary

Needham & Shao (No 2) [2023] FedCFamC1F 326 is a decision by Justice Altobelli of the Federal Circuit and Family Court of Australia, concerning an application by the mother to disqualify the father's counsel from representing him in family law proceedings. The substantive issues in the case relate to spousal maintenance, child custody, and other parenting orders regarding their three-year-old child. However, the court's decision, communicated ex tempore, primarily focuses on the mother's application to disqualify Mr W, the father's counsel, from representing him. The court had to determine whether there were grounds for disqualifying Mr W based on the mother's allegations of a personal relationship with him and his family, and whether such a disqualification would serve the interests of justice.

The court considered the applicable legal principles, particularly the test established by the Full Court of the Family Court in Charisteas & Charisteas, which focuses on whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires preventing a legal practitioner from acting for their client. The court found that the mother's evidence, particularly her affidavit, raised serious concerns about Mr W's potential lack of objectivity due to his close personal and professional relationship with the father. The mother detailed a history of interactions with Mr W and his family, including shared personal information, travel, and discussions about the father and the mother's relationship issues. The court concluded that these factors could impair Mr W's ability to represent the father objectively, thereby affecting the integrity of the judicial process.

Justice Altobelli ordered that Mr W not represent the father in these proceedings, emphasizing the importance of both parents being represented by counsel who are perceived as independent and whose primary duty is to the court. The court noted that while the father's financial situation was a factor, the Act provides mechanisms to ensure he has access to legal representation, including counsel, for the final hearing. The court believed that there was adequate time to arrange such representation and that no prejudice would arise from the delay. This decision underscores the court's commitment to ensuring the appearance and reality of justice in family law proceedings, particularly in cases marked by high conflict and personal relationships that could influence perceptions of bias.

Orders