O’NEILL & HAYLEY (No.1)
[2015] FCCA 2197
•24 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O’NEILL & HAYLEY (No.1) | [2015] FCCA 2197 |
| Catchwords: FAMILY LAW – Practice and procedure – application by the mother’s solicitors seeking leave to withdraw – where the mother’s evidence alleges some deficiency in the preparation and conduct of her case including, the alleged omission of certain relevant material – where the mother’s solicitors sought independent legal advice and representation – solicitors duty to the court – competing duty to the court and to the client – where the application made by the mother’s solicitors is consistent with a solicitors duty to the court – leave granted to the mother’s solicitors to withdraw. |
| Rondel v Worsley [1969] 1 AC 191 Other Articles Cited: Hon. Warren AC, “The Duty Owed to the Court, Sometimes Forgotten”, presented at Judicial Conference of Australia Colloquium Melbourne, 9 October 2009 Pagone J, “Divided Loyalties? The Lawyer’s Simultaneous Duty to Clients and the Court”, 20 November 2009 A., Paterson, B., Ritchie, “Law, Practice & Conduct for Solicitors”, 2nd Edition Law Council of Australia, “Australian Solicitors’ Conduct Rules”, 2011 D. Burleigh, “John Francis Bridgwood and the Solicitors Duty to Client and Court” (1989) 26 LSG, 11 |
| Applicant: | MR O'NEILL |
| Respondent: | MS HAYLEY |
| File Number: | AYC 198 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 23, 24 July 2015 |
| Date of Last Submission: | 24 July 2015 |
| Delivered at: | Albury |
| Delivered on: | 24 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Longworth |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| Counsel for the Respondent: | Ms Wald |
| Solicitors for the Respondent: | Hume Riverina Community Legal Service |
| Counsel for the Respondent’s Solicitors: | Ms Southey |
ORDERS
Leave is granted to the solicitors for Ms Hayley to withdraw from the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym O’Neill & Hayley (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 198 of 2013
| MR O'NEILL |
Applicant
And
| MS HAYLEY |
Respondent
REASONS FOR JUDGMENT
These proceedings substantively relate to future care arrangements for twins, [X] and [Y], born [omitted] 2008. They are currently aged seven years.
The parties to the substantive proceedings are the children’s parents being their father, Mr O'Neill, who is the Applicant, and their mother, Ms Hayley, who is the Respondent.
The parties are in heated dispute regarding future parenting arrangements for their children. The father seeks that the children live predominantly with him and spend alternate weekend and school holiday and special event time with their mother. Ms Hayley seeks a reverse, mirror imaged version of arrangements, that the children live predominantly with her, and spend time with their father alternate weekends, periods during holidays and special occasions.
Two Family Reports by the same Family Report writer have been prepared in the proceedings. Those Reports each recommend an equal time arrangement. Neither parent agrees with those recommendations. The Family Report writer has not yet been cross-examined, although he was expecting to be cross-examined this morning.
The father has been cross-examined as has the other witness in his case, the paternal grandfather. The mother’s cross-examination has commenced and has reached a point near conclusion but not yet concluded.
During the course of the mother’s cross-examination a number of issues were touched upon regarding the contents of Ms Hayley’s material as filed with the Court. Answers have been given to those questions which would suggest that certain instruction has been provided or action undertaken by Ms Hayley which have either not been acted upon by her attorneys or which have been the subject of some deficient drafting of material.
Ms Hayley’s evidence alleges some deficiency in the preparation and conduct of her case including, on at least one occasion, the alleged omission of certain material, clearly of relevance had it been made known to them, and/or the presentation of evidence in a form that was far from reflective of the instructions alleged by Ms Hayley to have been provided to them.
I do not suggest that this is the only basis upon which the mother’s evidence might, in closing submissions, be suggested as contentious. However, two significant matters arise.
Firstly, and as a consequence of the mother’s evidence and during one of several regrettable interruptions, the solicitors for the mother have had cause to take independent legal advice and ultimately representation with respect to their position. That has led to an Application by the mother’s solicitors to withdraw.
In those circumstances and from the outset I make clear that the Application that is made by the solicitors for Ms Hayley is entirely appropriate.
Secondly, the conduct of the proceedings, subject to the determination of the Application to withdraw, must be addressed.
Counsel is retained on behalf of Ms Hayley. It is trite to observe that Counsel is, in fact, retained by the solicitors for Ms Hayley. Accordingly, the withdrawal of Ms Hayley’s solicitors would require Counsel to return their brief to those solicitors and, unless willing to then accept a direct brief from Ms Hayley, (which Counsel have been clear they will not) the withdrawal of Counsel.
The other alternative that has been canvassed in submissions is that the Application for leave to withdraw might be adjourned until
Ms Hayley’s cross-examination is concluded and the Application for leave to withdraw then being renewed. That poses its own difficulties, which I will address in due course.
In dealing with the matter I am aided by the submissions by Counsel for each of the parties. I acknowledge that Counsel presently retained by Ms Hayley is somewhat hampered in that role being retained by the solicitors for Ms Hayley who agitate for leave to withdraw. I have also had the benefit of well-considered and well-delivered submissions by Counsel for Ms Hayley’s present solicitor.
The Application for leave to withdraw and submissions speaking to that Application has been addressed in the absence of the parties and in closed Court. This occurred, as regards the parties, partially as
Ms Hayley was in the process of being cross-examined. I formed the view, supported by Counsel for the parties and Ms Hayley’s solicitor, that discussion of the leave application in her absence (and the father’s) was appropriate. The evidence itself was not discussed in addressing this Application.
As regards the closure of the Court I formed the view, supported by Counsel for the parties and Ms Hayley’s solicitor that a solicitor, an officer of the Court, is entitled to privacy and dignity and should not be placed in a position whereby they would potentially feel scandalised or embarrassed.
The issue that arises is one of some discomfort, no doubt, for Ms Hayley’s attorneys and also the Court. It is never a matter of delight that such issues are raised and addressed. To the extent that such discomfort arises, from the Court’s perspective it is inevitable. But it is part of the Court’s role to administer its own affairs and, accordingly, it is simply one of the aspects of the Court’s discharge of its function which must be attended to.
I make clear there is no basis for the solicitors for Ms Hayley to feel discomfort. There is no wrongdoing on their part. They have, for the reasons that I will now shortly explore, simply fulfilled their duty to the Court. They have done so in a fashion which cannot attract critical comments by reference to relevant authorities which I will touch upon.
I commence with the words of Lord Reid in Rondel v Worsley [1969] 1 AC 191:
As an officer of the court concerned in the administration of justice a legal practitioner has an overriding duty to the court, to the standards of his or her profession, and to the public, which may and often does lead to a conflict with client’s wishes or with what the client thinks are his or her personal interests.
I am also conscious that whilst the duty to the Court and the client are often described as “a conflict”, it is, in fact, no such thing. This is eruditely discussed by Justice Warren in a speech delivered by Her Honour to the Judicial Conference of Australia Colloquium, Melbourne on 9 October 2009 “The Duty Owed To The Court – Sometimes Forgotten”:
The conflict between the duty to the court and to the client has been described by Mason CJ [Giannarelli v Wraith (1988) 165 CLR 543] as the “peculiar feature of counsel’s responsibility”. The Chief Justice also observed that the duties are not merely in competition. They do not call for a balancing act. They actually come into collision and demand that, on occasion, a practitioner ‘act in a variety of ways to the possible disadvantage of his client … the duty to the court is paramount even if the client gives instructions to the contrary.”
Justice Warren, referring specifically to Re Gruzman (1968) 70 SR (NSW) 316 and Giannarelli v Wraith (1988) 165 CLR 543, has the following to say of the duties of lawyers:
The lawyer’s duty to the court is an incident of the lawyer’s duty to the proper administration of justice. This duty arises as a result of the position of the legal practitioner as an officer of the court and an integral participant in the administration of justice. The practitioner’s role is not merely to push his or her client’s interests in the adversarial process, rather the practitioner has a duty to “assist the court in doing justice according to law”.
The duty requires that lawyers act with honesty, candour and competence, exercise independent judgment in the conduct of the case, and not engage in conduct that is an abuse of process. Importantly, lawyers must not mislead the court and must be frank in their responses and disclosures to it. In short, lawyers “must do what they can to ensure that the law is applied correctly to the case”.
The lawyer’s duty to the administration of justice goes to ensuring the integrity of the rule of law. It is incumbent upon lawyers to bear in mind their role in the legal process and how the role might further the ultimate public interest in that process, that is, the proper administration of justice. As Brennan J states, “the purpose of court proceedings is to do justice according to the law. That is the foundation of a civilised society.”
When lawyers fail to ensure their duty to the court is at the forefront of their minds, they do a disservice to their client, the profession and the public as a whole.
Lest it be misconstrued, I make clear that the Application made by
Ms Hayley’s present attorneys is entirely consistent with those duties. The above passages are not referred to as criticism of Ms Hayley’s attorneys. In fact, quite the opposite. The passages are referred to so as to confirm the entirely appropriate stance that has been taken by them.
Her Honour continues at page 8 of the paper:
The conflict between the duty to the court and the client has been described by Mason CJ as the “peculiar feature of counsel’s responsibility”.
Her Honour was therein referring to the passage from Giannarelli v Wraith set out above. That passage has some particular importance, and, as is taken up in a paper by Pagone J titled “Divided Loyalties? The Lawyer’s Simultaneous Duty to Clients and the Court”, 2009 wherein, Pagone J quotes extensively from Mason CJ in Giannarelli v Wraith including, at page 9, the following:
The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court.
I make clear that there is no suggestion whatsoever that either Counsel or those by whom Counsel is instructed have misled the Court. What is perhaps germane is a consideration of what might be meant by allowing the Court to be misled that being, essentially, the basis upon which this Application is made.
In Giannarelli v Wraith Mason CJ continued:
It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary.
I pause to observe that one of the difficulties for the solicitors for
Ms Hayley is that their client is under cross‑examination. They are, thus, precluded from engaging in discussion with her regarding her evidence without the Court’s leave and without the knowledge of Counsel for the father.
Mason CJ continued:
Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice.
It is that very duty, the role of Counsel and legal practitioners generally to be responsible for the conduct of litigation, (perhaps less so in this millennium or wrested from their control by active case management), that is upheld in this case. It is all too often the case that legal practitioners shirk or perhaps are unaware of their responsibilities to the Court in ensuring that Applications that are filed seek relief that is within the Court’s jurisdiction and capable of being ordered, has a basis in fact which would arguably support its ultimate award, and to conduct cases in an efficient fashion, minimising the use of resources, especially those of the Court. In this case those duties have been observed, including, as regards this issue being raised, once the difficulty has become apparent, with due diligence.
Her Honour Pagone J, at page 13, under the heading “Duty of Independence”, has the following to say which is of some considerable assistance and guidance to me:
...the duty of candour and honesty and the duty not to mislead the court, but the duty of independence has much practical content in the day to day conduct of proceedings in a court on behalf of a client [her Honour referring therein to the decisions in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 and New South Wales Bar Association v Thomas (No.2) [1989] 18 NSWLR 193]. The lawyer is required to exercise independent judgment and is personally responsible for the conduct and presentation of a case in court.
A barrister who signs pleadings does so, in part as a voucher that the case is not a mere fiction [referring to Great Australian Goldmining Co v Martin (1877) 5 Ch D 1 and perhaps also now codified in various Uniform Civil Procedures Acts]...
A practical application of these considerations occurs every day when lawyers prepare affidavits and witness statements for court proceedings. The role of the lawyer is not to create evidence which does not exist and, therefore, must always exercise care to ensure that what is prepared to be tendered in evidence does not inadvertently become the lawyer’s “spin” rather than the witness’ actual evidence [referring specifically to Re Spedley Securities Ltd (in Liq); Reed v Harkness (1990) 2 ACSR 117].
That is perhaps the fulcrum upon which the considerations of Ms Hayley’s attorneys have been balanced. Ms Hayley has given evidence on several occasions that the wording of the Affidavit, that which is deposed to as true and correct by the witness, does not reflect her clear instructions and is, instead, the lawyers’ “spin”. The effect of this evidence by Ms Hayley is that when that evidence is demonstrated to be inaccurate she suggests that this is caused by her attorneys.
I also have some considerable assistance from chapter 14 of Paterson and Ritchie’s “Law, Practice & Conduct for Solicitors”, 2nd Edition. Whilst accepting that work applies to the Scottish jurisdiction it most eruditely canvasses and engages in discourse regarding rules of ethics and practise from various common law and particularly Commonwealth jurisdictions, including Australia. What is most instructive is that contained in Article 8 of the Code of Conduct for Scottish solicitors spoken to at some length by that chapter, “You must never knowingly give false or misleading information to the court”.
One must be conscious that when discussing the giving of false or misleading information that this might be by act or omission. It would include passively permitting that which is before the Court and which the solicitors know or reasonably suspect to be false or misleading, to stand. That is reflected in the “Australian Solicitors’ Conduct Rules” published by the Law Council of Australia in 2011. As a consequence the attorneys for Ms Hayley are caught, as it were, between a rock and a hard place of two balanced, although clearly one paramount, duties.
Chapter 3 of the “Australian Solicitor’s Conduct Rules”, headed “Paramount Duty to the Court and the Administration of Justice” states as clearly as could be possible that which binds all attorneys. The:
A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
Chapter 9 deals with confidentiality of client’s information:
A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person…
The rules go on to set out various exemptions and caveats. However, the “collision” of those duties creates the very real difficulty, the ethical dilemma, which arises in this case. If it is suggested that evidence is given by a client which the attorney would be aware is not an accurate reflection of that which in fact occurred, they are placed in a difficult situation. Legal professional privilege is the property of the client. It is not for an attorney to waive privilege. That is also entirely consistent with their duty of confidentiality as set out above.
An attorney cannot put themselves in a position of offering to be or become a witness against their client. It would involve them in disclosing confidential information and inappropriately and impermissibly waiving legal professional privilege of the client without their knowledge or consent. Nor can an attorney be party to the Court receiving evidence they know to be inaccurate. That circumstance arises as in this case.
The authors Paterson and Ritchie discuss at some length a history of case law dealing with the circumstance which would face an attorney when their client gives evidence contrary to prior instruction and thus potentially false or fabricated evidence. I make very clear that no finding is made that Ms Hayley has given false evidence.
In relation to false or fabricated evidence, adopting the language of that set out by the authors rather than it being an allegation as regards
Ms Hayley, the following is opined:
All but the most ardent supporters of zealous advocacy accept that the adversarial system does not permit lawyers to knowingly put before the court false or fabricated evidence, no matter what the kind of proceedings nor whether the deception causes harm to anyone.
The authors then refer to an English disciplinary case of Bridgwood (1989) 26 LSG, 11.[1] As is observed:
A solicitor takes part in a positive deception of the court when he puts forward to the court himself, or lets his client put forward, information which the solicitor knows to be false, with the intent of misleading the court. The defence solicitor need not correct information given to the court by the prosecution or any other party which the solicitor knows will have the effect of allowing the court to make incorrect assumptions about the client or his case, provided the solicitor does not indicate in any way his agreement with the information.
[1] D. Burleigh, “John Francis Bridgwood and the Solicitors Duty to Client and Court” (1989) 26 LSG, 11.
It goes on to refer to the English Law Society’s Criminal Law Committee who, having considered Bridgwood, add the following:
1. The solicitor should seek to persuade the client to give the court the correct name and address [information, prior to it seeking to withdraw] if the client refuses the solicitor should withdraw from acting.
2. Where the client gives the correct name but a false address or date of birth the solicitor should also withdraw, since the false information is relevant to [other matters].
There is difficulty that arises in that course being adopted in this case. The difficulty is twofold. Firstly, Ms Hayley is in the course of cross-examination. Certainly leave could be sought to confer with Ms Hayley and seek to engage in such persuasion if that is, in fact, the difficulty that has arisen. Secondly, and perhaps more importantly, that course would, by and of itself, be inappropriate and potentially represent a conflict of interest, particularly as regards the duties of the attorney to zealously represent Ms Hayley, in that the evidence that is suggested to be misleading or having the tendency to be so) is evidence which implicates the attorney.
The authors canvassing authorities from Scotland, England, Canada, the United States, New Zealand, Trinidad and Tobago and Australia with respect to the issue. The Canadian experience would appear to be somewhat at odds with our own, suggesting that a lawyer would not breach confidentiality if they were to seek to give evidence to the Court and “disclose the deceit”. That course of action would fall foul of the comments of the High Court in Giannarelli v Wraith.
With respect to the suggested approach of persuading the witness to “tell the truth” the authors offer the following:
If the lawyer has reached the conclusion that the client has decided to commit perjury or has already committed perjury, almost all of the authorities and commentators suggest that the lawyer must seek to persuade the client or witness not to commit perjury or to correct any perjured testimony that has been offered…Next, the lawyer must explain to the client what the options facing him/her are.
I am conscious that the portion of Ms Hayley’s evidence that causes discomfort for Ms Hayley’s attorneys implicates those attorneys. A conversation between Ms Hayley and those attorneys, whom she blames for the form of the evidence she has sworn to be true and which is now refuted, would be inappropriate. I am satisfied that the course of action taken by Ms Hayley’s attorneys, in seeking independent advice and representation and making the Application that they have at the earliest opportunity, is appropriate.
The piece by Paterson and Ritchie concludes:
Many authorities permit or require withdrawal but this can be problematic if the trial is part heard.
It is certainly submitted, on behalf of Mr O'Neill, that such problems arise. The difficulties are numerous.
Firstly, the attorneys’ obligation, their duty to the Court being their paramount duty, would compel them to raise the issue as soon as it could be raised, not, as it were, to sit back and allow it to continue before raising their discomfort and desire to withdraw. That would not only be contrary to their duty to the Court but also to their client.
Secondly, as is submitted by Counsel for Mr O'Neill, it would be possible for the cross-examination to conclude before this issue is dealt with. But that brings its own problems.
I have real concerns in allowing Ms Hayley’s cross-examination to continue without addressing the Application for leave to withdraw. The relationship – the degree of confidence, either of client in attorney or attorney in client – has broken down irreparably by the evidence that has been given repeatedly by Ms Hayley implicating, as it does,
Ms Hayley’s attorneys in evidence being inaccurate. If it was suggested that the evidence of a witness rather than a party was at odds with the instructions previously provided by that witness that might be a different matter. Remedies would be more readily available in seeking to treat the witness as hostile, withdrawing their Affidavit or the like.
But when the implication is directed entirely towards those now making the Application, Ms Hayley’s attorneys, and by their client, a party to the proceedings, I am concerned that it would be inappropriate for them to be silent.
Thirdly, Ms Hayley could not be satisfied that her evidence had been appropriately protected. I cannot envisage that at the conclusion of
Ms Hayley’s cross-examination, another hour or so being estimated, Ms Hayley would have any confidence that her interests had been served through her protection by Counsel and instructing attorneys during her cross-examination when they had already raised this issue.
Neither Ms Hayley’s attorneys nor Counsel retained by them would permit their ethical duties to their client and the zealous advocacy of her cause to be compromised. However, it is an issue of perception and Ms Hayley might well, when she has felt pressured – and certainly she has been vigorously and appropriately cross-examined to date – feel that the lack of intervention or objection by her legal team may have had some alternate purpose or arise through lack of interest, “tanking” as it were.
What the authors Paterson and Ritchie make clear is that the myriad of Commonwealth authorities and commentaries are sharply divided as to whether disclosure of the suggested false, perjured or less than candid evidence to the Court is permissible. I am satisfied that it should not be so particularly by reference to the High Court’s decisions referred to above. Under the heading, “Perjury, opting to continue acting”, the authors have the following to offer:
If the client agrees not to commit perjury then the lawyer should continue to act. However, what if the client gives no such undertaking or refuses to correct the perjured testimony? Some authorities consider that the lawyer can continue to act if:
(a) the lawyer does not know but only has a reasonable belief that the client will commit or has committed perjury.
For the sake of repetition I make clear that I am not suggesting, nor is any finding urged or made that Ms Hayley has perjured herself. It is purely the language of the article. In this case the controversy arising from Ms Hayley’s evidence is that which has previously passed between her and her attorneys. Ms Hayley’s attorneys would know, well beyond suspicion or reasonable belief, whether they have complied with their instructions in preparing material. They would have something approaching, if not in reality, certainty as to the conflict which they perceive:
(b) If the lawyer insists that the client does not take the witness stand.
That cannot be so. Ms Hayley is in cross-examination and will continue:
(c) The client’s testimony is restricted to the truthful elements.
The difficulty that arises (and again no finding has been made or yet urged upon me that the evidence is untruthful) is that if it were suggested to Ms Hayley by her attorneys that what she has said of them is inaccurate and she must correct it in the witness box, that would of itself, give rise to a further conflict and ethical difficulty.
I could not see how it would be appropriate for Ms Hayley’s attorneys to continue to act. Further, the testimony in relation to those events will be the subject, I apprehend, of submissions of more general and broad application than simply the absence of accuracy.
There are issues of credit attaching to the totality of Ms Hayley’s evidence. I have done my best to make clear to Ms Hayley that the course that she had taken, what has been described in questions put by Mr O’Neill’s Counsel in terms of “so you are blaming your lawyers” was something that would, in all probability, give rise to this very difficulty.
(d) the client either makes an unsworn statement or provides the untruthful parts of the testimony in a narrative format.
That could not apply in these proceedings. It might have some limited application in criminal or other jurisdictions:
(e) the perjury is already complete, the lawyer makes no subsequent reference to the false testimony.
That is simply not possible. Again, I make clear that I am not suggesting, nor am I urged at this point in time to find, that the testimony is false.
In relation to the option of seeking leave to withdraw, but not disclosing the nature of the difficulty with the client’s evidence, the following is opined by Paterson and Ritchie:
This approach is perhaps the most widely supported option where the client refuses to agree not to testify falsely or to reveal the completed falsehood to the court. It is supported in England, Canada, Australia and New Zealand.
A number of authorities for the propositions are cited by the authors. Particular reliance is placed upon Sankar v. State of Trinidad and Tobago [1995] 1 WLR 194.
The passage continues:
Unfortunately, if the withdrawal requires the permission of the court because the trial is ongoing it may be difficult to get that permission without in effect revealing that perjury has been or is likely to be committed, and thus breaching the duty of confidentiality and loyalty to the client. The use of the formula that the lawyer would be “forensically embarrassed” by continuing certainly reveals the score to the judge and the prosecution, though not necessarily to the jury, if there is one.
Whether there is such revelation or not in this case I need not find. I am satisfied that the circumstance falls within the ambit of that discussed above, particularly, that of Mason CJ, that when the two duties come into conflict, there is no balance. There is a collision and one duty is paramount. Ms Hayley’s attorneys have recognised that and acted entirely appropriately.
As regards the other courses of action as might be available I am conscious, in the Australian context, of the High Court’s decision in Tuckiar v R [1934] HCA 49. It would not be appropriate for
Ms Hayley’s attorneys to take any further or more strident action to draw the Court’s attention to the specific bases for their desire to withdraw. They have brought an Application framed delicately, precisely and appropriately.
Similarly, some issue is raised by the authors Paterson and Ritchie as to whether seeking to withdraw might give some hint or some further basis for submission, that the client or if leave is granted, former client, has been less than honest.
I am satisfied the same comments of the authors as above apply here. In all of those circumstances, I am satisfied that:
a)It would be inappropriate for Ms Hayley’s attorneys to continue to act in the circumstances in which they find themselves;
b)The Application made by Ms Hayley’s attorneys is entirely appropriate and must be granted even if, regrettably it may play mischief and bedevil the conclusion of these proceedings;
c)The conduct of Ms Hayley’s attorneys in bringing the Application demonstrates the highest calibre of compliance with their duty to the Court and to their client.
I am satisfied that the Application made by Ms Hayley’s attorneys, its prosecution, the manner in which it has been approached, through obtaining independent advice and representation, rather than seeking to bring such Application through Counsel retained on behalf of
Ms Hayley, is reflective of entirely appropriate ethical behaviour following serious consideration.
Leave to withdraw must be granted. However, I am conscious that this circumstance would require that Ms Hayley be given opportunity to be heard as to whether the proceedings continue today or whether some other course is taken to permit her to obtain further independent legal advice and if she desires, representation. I will turn to that issue shortly.
I am concerned that the matter must be concluded as promptly as possible. The proceedings have previously been marked not reached and were adjourned to this fixture with priority to be heard and concluded. The Family Report writer has certainly indicated in the second of his Family Reports that there is some urgency to the determination of these proceedings commenting at paragraph 33 of that second report:
Their “competition”, [being that between the parents] has been exacerbated by the Hearing not taking place in 2014 and them having to wait another twelve months with interim arrangements. I believe they need Final Orders as soon as possible to prevent their constant criticism of each other’s parenting in the hope that it will make them appear better than the other.
Whether there is full or partial accuracy to the comments made with respect to the parties, certainly I accept that offered by Mr Ban, that the best interests of these children warrant, deserve and require the completion of these proceedings sooner rather than later. If need be time will be made available on the next circuit to complete the matter with minimal delay if that is what is needed. However, I am also conscious of the dicta of Lord Atkin in Ras Behari Lal v The King-Emperor (1933) 50 TLR 1 that “Finality is a good thing but justice is better”
Leave will be granted to Ms Hayley’s attorneys to withdraw and I will now need to hear from Counsel for Mr O'Neill and Ms Hayley on her own behalf as to how the matter progresses.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 14 August 2015
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