Pencious & Pencious
[2012] FamCA 74
•28 February 2012
FAMILY COURT OF AUSTRALIA
| PENCIOUS & PENCIOUS | [2012] FamCA 74 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to have legal practitioner and his firm restrained from acting for the wife - dismissed |
| Family Law Act 1975 (Cth) Legal Profession Act (2005) (Vic) |
| D and J Constructions Pty Ltd v Head and Ors [1987] 9 NSW LR 118 Johnson v Johnson [2000] HCA48; 201 CLR 466 |
| APPLICANT: | Mr Pencious |
| RESPONDENT: | Ms Pencious |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 11069 | of | 2008 |
| DATE DELIVERED: | 28 February 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 8, 9 February 2011; 7, 8 September 2011; 6, 7, 8 & 9 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Nikou SC |
| SOLICITOR FOR THE APPLICANT: | Hardys |
| COUNSEL FOR THE RESPONDENT: | Mr Wood |
| SOLICITOR FOR THE RESPONDENT: | Adrian Abrahams Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
Orders
That the application of the husband filed 3 December 2009 is dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 9 March 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 23 March 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Pencious has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11069 of 2008
| Mr Pencious |
Applicant
And
| Ms Pencious |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
This is a case about legal practitioners. It is about the responsibility of this Court to protect its processes to ensure that justice to its litigants is provided and that extends to a supervisory role over legal practitioners who appear before it and practice in it.
The proceedings
This is a case in which the husband seeks an order from the Court restraining Adrian Abrahams and his legal firm from further acting in property and parenting proceedings on behalf of the wife. The proceedings have been protracted and bitter. There have been a number of interlocutory hearings because of continual disputes. The substantive disputes remain unresolved.
The thrust of the husband’s case was that in isolation, his complaints about his wife’s lawyers might appear innocuous but added together, they amount to a conclusion that he could not obtain a just outcome in relation to the parenting issue because the wife and her lawyers (by association and by conduct) have manipulated the judicial process so that his daughters are alienated from him. In the property proceedings, his view is that the lawyers through an employee secretary, improperly came upon a confidential conversation between he and his lawyers and the Court’s process is tainted. In his view, only a removal of the wife’s lawyer will fix that problem.
In her succinct opening, Ms Nikou of Senior Counsel described the case as one involving public and private law. She described the prejudice to the husband in relation to the substantive proceedings about property and parenting as follows:
[It] arises from a long history of improper conduct by the wife’s solicitor and the wife in blurring the lines of responsibility and contaminating or potentially contaminating or appearing to contaminate the judicial process.
The allegations in opening are extremely serious because of the assertion of improper conduct leading to a contamination of the evidence precluding the husband from obtaining a fair hearing.
There are therefore three discrete issues to be examined upon which findings are to be made.
The three areas of dispute here are as follows:
(a)did Mr Abrahams fail a professional standard or duty by acting for, or giving the appearance of acting for, the party’s daughter in family violence proceedings in the Children’s Court of Victoria or by his actions, has he involved that daughter in the family law proceedings? Has he exacerbated the wife’s alienation of both children by his conduct?
(b)did an employee solicitor of Mr Abrahams (Ms E) fail that same professional standard or duty by:
(i)attending upon and taking instructions from the daughter in Mr Abraham’s office relating to the revocation of a family violence order in which she (rather than the wife) was the protected person?; and
(ii)acting for or giving the appearance of acting for the daughter by her conduct at the Children’s Court of Victoria upon the revocation of the family violence order?
(c)did an employee secretary of Mr Abrahams (Ms D) by her conduct in being present in court when the husband and his legal practitioners were discussing confidential information and by her response to the husband’s legal practitioner’s questions, create a situation where the wife’s practitioners were possessed or potentially possessed of information that they should not have?
The material relied upon by all parties is set out in the attached schedule. Some of the affidavit material was old and had been filed for interlocutory applications. Despite that being contrary to the Family Law Rules 2004, both sides wanted the proceeding so conducted. The reliance on that process meant the other party’s responding material was necessarily dragged in. It was most unsatisfactory but I have taken all of it into account.
Outcome
After considering all of the matters set out below, I am satisfied that a fictional observer to whom I shall refer, would not feel any degree of discomfort about the continued involvement in these proceedings of the current solicitor for the wife.
Any allegation of impropriety against a legal practitioner must be treated seriously and one involving the contamination of the process of justice needs to be carefully examined. I shall address the issue of the objective analysis by a fictional observer but I am also very conscious that the Court sets a high standard for its practitioners.
It is proper to look at the facts in this case in the light of the allegations to which I have referred and see whether the conduct would not only trouble the fictional observer but also a judge of this Court. For the reasons which follow, the husband’s application must fail.
The hearing
The disputed incidents occurred mainly in 2009 but the hearing was delayed. These discrete proceedings began before me in February 2011 at a time when the expected duration was but two days. It had been listed earlier before Brown J but the husband fell ill. A subsequent listing before Mushin J was not reached in a list. The subsequent difficulties in getting agreement as to availability also caused significant delays.
It was during the hearing in 2011 that the third of the three issues above arose.
Despite the delay, I am confident the findings I have made below, particularly relating to credit, are based on a sound recollection of what was canvassed in evidence. I have also had the benefit of the submissions of all parties. All practitioners focussed their submissions on the issues of credit. The parties also had access to transcript.
Background
The husband was the applicant and was represented by senior counsel. The wife was the respondent and both she and the Independent Children’s Lawyer were represented by experienced counsel.
The parties had married and had two children. C is now 18 years of age and K is 15 years. Neither child has an ongoing relationship with the husband. According to the husband, that sad dilemma has been the result of the wife’s alienation of the children. According to the wife, the cause has been the husband’s violence.
The parties have had significant and unsuccessful involvement with psychologist Mr P. He has provided written reports. It will not be lost on the reader that when the parenting proceedings began, C was under 18 years of age and now, K is rapidly approaching the end of her childhood years.
In addition, it must be said that the substantive proceedings had traversed the Court’s listing processes and stalled because of this dispute. I have indicated that the case should not be given priority given the demands the parties have made already on the Court’s resources.
The uncontroversial facts can be simply set out.
Whilst there had been constant conflictual disputes between the husband and the wife until early 2009, the husband had not taken any exception to Mr Abrahams acting for the wife.
In the parenting proceedings, a family report had been ordered and released. Whilst that was not comprehensively canvassed before me, it was my impression from hearing from the parties that the family consultant was concerned about the wife’s conduct in the dispute by having involved the children.
The report of Ms G was referred to and witnesses were cross-examined upon it. Ms G was not called to give evidence. Parts of the report were selectively quoted. The report was attached to a submission by the husband’s counsel who submitted that it was in evidence. It was not consented to as such by other counsel but without demur, I was asked to give it whatever weight I thought appropriate.
Not much weight has been given to this report because the opinions of Ms G were not accepted by the wife and Ms G was not called to defend them. In addition, I have subsequent “reports” of another expert (but not an affidavit) about which there was agreement as to the admission in evidence. This is not a matter governed by Division 12A of the Family Law Act 1975 (Cth) (“the Act”).
Suffice to say there was asserted to be a recognisable difficulty involving the husband’s relationship with his daughters in all “reports”. That had resulted in orders for the husband’s time with the children being made by the Court.
Psychologist Mr P became involved in what appears as a therapeutic approach, to try and resolve the dispute. Orders were made by consent of the parties about their attendance upon Mr P and for a report to be prepared by him but only if certain conditions were met.
It was evident that there was some confusion about what role Mr P was to play and the point at which any report was to be prepared. Whilst I have a very clear understanding of what the order meant and have seen the authority document signed by the parties that was given to Mr P, I have also heard the evidence of the husband which does not sit comfortably with many of the things that happened about any report of Mr P.
The incident that provoked the family violence order
On 16 May 2009, the husband attended the wife’s home for the purposes of collecting the children. At that time, the relevant order was that of Senior Registrar FitzGibbon made on 1 April 2009. The husband was to have specific time with both K and C on that weekend. The order provided that save where changeover took place at school or the M train station, the husband was to collect the children from and return the children to the mother “at the front gate of the mother’s residence”.
On the evidence, it is clear that the husband went well beyond the front gate of the residence. At the wife’s home, an altercation occurred between the husband and the older daughter C. Although the husband said in evidence that he disputed the allegations against him about what occurred, the evidence showed that C was physically hurt and required medical attention. The husband’s counsel did not challenge the evidence of the witness who said as much.
Upon the conclusion of the debacle, C and the wife went to the local police station. There, the police officer (Senior Constable H) was sufficiently satisfied about what occurred to seek a family violence order in the local Magistrates’ Court. I am satisfied that although ultimately the wife was content for such an order to be made, it was C who knew about that procedure through her school and that she was the instigator to obtain the order. That was despite the fact that Senior Constable H was the applicant.
In the Family Court proceedings to that date, both children had had their interests represented by an Independent Children’s Lawyer. That Independent Children’s Lawyer was not involved in the family violence proceedings in the State court nor should she have been.
Senior Constable H issued the application on behalf of C in the local Magistrates’ Court. On 18 May 2009, the first return date of the Senior Constable’s application occurred. The husband appeared and was represented by counsel Mr N. According to Senior Constable H, as the magistrate was told the proceedings would be defended, the application was transferred to the Children’s Court for a hearing on 20 May 2009.
It was the wife’s evidence which I accept, that having spoken to Mr Abrahams, she was confused about the family violence order process and instructed him to attend on 20 May 2009 at the Children’s Court.
Mr Abrahams attended the Children’s Court and there met a police prosecutor and Mr N of counsel for the husband. Mr N was instructed by Mr B, the husband’s solicitor. At some point in the morning, C was introduced to the duty solicitor Ms Z.
A discussion subsequently occurred in front of the Children’s Court magistrate and the existing interim family violence order was extended pending the proposed defended final hearing. For the reasons set out below, I accept that nothing Mr Abrahams did would concern the independent observer earlier referred to. I could find nothing in his conduct which was unprofessional or improper.
Subsequent to the Children’s Court proceedings, the parties were back before this Court and orders were made by consent on 12 June 2009 as follows:
That wife forthwith (sic) do all acts and things within her power to cause the proceedings in the children’s (sic) court (sic) relating to the child [C] to be withdrawn.
The earlier orders relating to the husband’s time with both children was suspended under that same order.
It was the husband’s evidence that he did not believe the wife would carry out her obligations under that order and there was some evidence of a dispute about the correspondence that followed. In my view, it does not affect the outcome at all. That correspondence included the husband’s solicitor sending to the wife’s solicitor an application for the wife to sign which would have enabled the revocation of the family violence order in the State court relating to C.
I am satisfied that the husband’s solicitor who sent the application was oblivious to two problems. First, it was Senior Constable H who had been the applicant and who should have been approached about the revocation. Secondly, as the wife was not a party, it was C who had to sign the application. On the other hand, I am satisfied that the wife’s solicitor was conscious of both of those issues and she dealt with them appropriately.
The wife attended upon an employee solicitor Ms E at the offices of Mr Abrahams. There, both the wife and C signed forms for revocation. C attended in the waiting room and the only discussion that there took place was about whether she understood what she was doing. C signed what appears to be an affidavit.
I find nothing that occurred on that day could cause an independent observer any concern. I find nothing in Ms E’s conduct that would cause this Court concern.
On 22 July 2009, the revocation application came before the Children’s Court. This time, the husband attended with his solicitor Mr B. The wife attended with her sister and C. The wife was represented by the employee solicitor Ms E. The previous duty solicitor, Ms Z, was not apprised of the application. Senior Constable H also attended because she had been told by Ms E of the impending application by C. As the evidence showed, Ms E had negotiated the agreement of the police officer to the revocation.
When the case was called to the court room, Ms E was recorded on the transcript as telling the Children’s Court magistrate that she appeared for “the protected person” who in that case was C. Mr B appeared for the husband. The family violence order was then discharged.
Outside the Children’s Court after the hearing, Mr B approached Ms E and expressed his concern about her announcement to the magistrate of having appeared for C.
He said he “queried” her “appearance on behalf of the child” and went on to tell her that it was his opinion that as she had then acted on behalf of “the child” she “may be conflicted” in the overall proceedings. In cross-examination, Mr B told me he was “shocked” by Ms E’s announcement in court. I have difficulty understanding why that was so having regard to his silence before the Magistrate. His explanation for his silence was that it was a “quick hearing”.
When Ms E gave evidence, she was cross-examined about the incident after the court hearing. To the husband’s counsel, she said that she had not realised she had said what the transcript recorded and she was embarrassed when made aware. She was asked why she did not go back to correct the record and she conceded she should have. My view is that that was unnecessary but to the extent that Mr B was “shocked” he could have led both practitioners back. Ms E was later reported to the Ethics Committee by Mr B. The Committee found no ethical breach. I agree.
I am quite satisfied that it was an innocent error by an inexperienced practitioner in making that announcement to the Children’s Court but more importantly, nothing untoward could be said to have occurred in the conduct of Ms E that would have concerned the fictional independent observer. Although that independent observer was not watching Mr B in this process, his behaviour that day causes me some concern because he adopted an unnecessary and inflammatory approach. I have concluded that he took the action and subsequently reported Ms E to the Ethics Committee on instructions from the husband. He too might consider the requirement of objectivity that comes with experience.
Some months later, the husband, having unsuccessfully demanded that Mr Abrahams cease acting for the wife, commenced these proceedings.
I turn then to the subtleties of the evidence of the parties and their witnesses.
The evidence and the witnesses
This is an unusual case. The husband proposed an order be made that was directed to the wife’s lawyer. The witnesses who supported that were the husband’s former solicitor and a Victorian barrister who appeared for the husband in the Children’s Court. The wife, in opposing the husband’s application, challenged the accuracy of the evidence of those professionals. The wife called her two solicitors and a member of their staff but she also called, and relied upon, the Children’s Court duty lawyer who appeared for C. She also called evidence from Senior Constable H who thought that in 2009 it was appropriate to seek an order against the husband in the Children’s Court for the protection of C.
One underlying theme emerged in these proceedings. Each side attacked the reliability and accuracy of the witnesses of the other. Each side put the credit of the other’s witnesses on trial. This was not just a case where it was suggested that memories were faulty because of time. The husband through his counsel, approached the cross-examination of the wife’s solicitors and one of their employees not only on the basis that they were not truthful but also that their memories were flawed.
The wife through her counsel, conducted the cross-examination of the witnesses on the husband’s side on the basis that their memories were faulty. To the extent that it needs to be said, each witness has been treated in these reasons in the same way as any other witness. In respect of the lawyers as witnesses, rank, experience, seniority or class of lawyer, carries no weight but truthfulness does.
Some events recalled by witnesses were dimmed by time whilst others were recalled with a vivid recollection because of surrounding incidents. In more than one instance here, the evidence of two opposing persons about a discrete issue appeared plausible making the task difficult. It is in those situations that I have resorted to the surrounding circumstances to see which evidence was, overall, the more probable.
The standard of proof for a finding in respect of these events is the balance of probabilities; that is, what is it that the Court can say probably happened?
The husband
The husband was an unreliable witness. His evidence was vague and I found him evasive. When questioned about financial matters and his current income, he was unresponsive. In re-examination by his own counsel, he said that he had no income. All of those questions were put to his lack of credit. He was questioned about an incident relating to a motor car and how he had pursued the return of a key. He made clear that he was not pursuing the return of the motor car in any property settlement but felt constrained to take the action that he did because of some legal right. His evidence about that showed his focus was on control of the wife. His behaviour had been unnecessary and he did not seem to understand the significance of it. In relation to the evidence of the critical events at the Children’s Court, he was adamant about what he saw. He was offended by the fact that Mr Abrahams and later Ms E had anything to do with C. His view was that the removal of the solicitors acting for the wife would go some way to bringing the wife “to account” for the fact that she, in his eyes, had alienated his children from him. He had no serious explanation of how the alienation problem would be resolved even if Mr Abrahams was removed. He could not tell the Court what parenting orders he was seeking.
The husband’s evidence was ultimately read from five affidavits. That was not the way the case was opened but no real objection was taken by other counsel. All of the affidavit material upon which the husband ultimately relied was not really drawn to my attention until final submission. Some of it, not having been referred to, was not cross-examined upon.
Over four months after the second appearance in the Children’s Court, the husband filed the application in this Court seeking the removal of Mr Abrahams.
In the first affidavit which supported the application, the husband said that C was represented by the duty lawyer. Curiously, Mr N did not seem to be of that view.
The husband said he saw Mr Abrahams discussing matters with C and “her duty lawyer”. That evidence was emphatically denied by duty lawyer Ms Z. Having heard Ms Z and her background, the husband’s position was untenable.
The husband had witnessed all of the activities of Mr Abrahams and later Ms E but when asked whether he had instructed his solicitor to complain at the time of the activities, he said the discussion was about the fact that what Mr Abrahams was doing was inappropriate. As to why nothing was done that day in May 2009, his answer was that the discussion ultimately revolved about the fact that the appropriate forum was this Court. No evidence was given by either Mr B or Mr N about that.
In the fourth of five affidavits, the husband swore in January 2011 that Mr Abrahams sat with the wife and C at the Children’s Court and that Mr Abrahams spoke to C. He described what he saw in the courtroom and concluded that Mr Abrahams gave instructions to the duty solicitor without conferring with C. From that action, he concluded that Mr Abrahams was instructing the duty solicitor on behalf of C. It is clear from the evidence that Mr Abrahams was correcting an error of Mr N.
As for what Mr N told the Children’s Court, the husband denied giving instructions to the effect that Mr P supported his case but in subsequent cross-examination, he confirmed that Mr N was entitled to make the statement about Mr P supporting him because that is what Mr P had told him. That clear-cut view is certainly not evident from any of the notes of Mr P. What was clear however was that the husband confirmed that it was he who told Mr N that a report was being prepared by Mr P. To the extent that I might infer that a report was “on the way”, that was clearly misleading. The husband had no right to say that. When asked about what Mr N was telling the Children’s Court about the report, the husband’s reaction was to say that Mr N was simply “flagging” such a report. No reasonable reading of the transcript could support that proposition. Mr N also used the words “under construction” relating to the report and that too was not right. When the husband was questioned about whether he had had a discussion with Mr N about the existence or preparation of the Mr P report, the husband was unresponsive.
The husband’s evidence was that Mr Abrahams, the duty solicitor and C were in a room together for at least twenty minutes and he had no doubt about that. I find that that just did not happen.
The husband turned his attention to the Children’s Court hearing in July 2009. He said he saw Ms E speaking to C and the wife. His position was clear that he viewed Mr Abrahams as having acted on behalf of C as well as the wife. He saw that attention by Mr Abrahams as being “the wife’s agenda and interest” conflicting with the needs and best interests of C. His conclusion was that that was a conflict of interest. When trying to indicate what the dilemma was, the husband said that Mr Abrahams’ conduct had compromised the proceedings and that he had damaged his relationship with his children. He expanded on this to mean that his daughter was involved in the proceedings because she was familiar with material and there had been an exchange of that material through Mr Abrahams. There is no evidence that I could find to suggest that that occurred. Counsel for the husband had the opportunity to carefully cross-examine both Mr Abrahams and Ms E as well as the wife on that issue.
The husband also acknowledged that at the Children’s Court, the wife’s sister Ms A was present but his response was that she was only there at various times. Having regard to the evidence I heard from Ms A who maintained that C had never been let out of her sight including when they went to the toilet, the husband’s evidence must be rejected. Ms A was cross-examined about her movements and I am satisfied that the husband was simply wrong.
In relation to the hearing in July 2009, the husband said that he was surprised and so was Mr B when Ms E announced that she appeared for C. He said that Mr B uttered “Oh” but as will become apparent, Mr B made no move to correct any error nor did he in fact indicate in his evidence that such a surprise was manifested in the way that the husband said it occurred.
In his fifth affidavit, the husband related the events of March 2011 involving Ms D. He said his counsel asked Ms D “Are you involved in the proceedings?” and she replied “No”. He said his counsel then asked “Are you here merely to observe?” to which he said that Ms D responded with “Yes”. He said that privileged issues were then discussed. He said that Mr N was present and he and his other lawyers conducting the case before me then discussed that case. No-one has raised any concerns about the fact that Mr N was present during those discussions despite being a witness soon to be called.
Below, I shall deal with the other witnesses involved in the incident concerning Ms D. I have little confidence in the evidence of the husband because of his views about what happened involving C and Mr Abrahams at the first Children’s Court hearing. Much was made of the seating arrangements and the proximity of Mr Abrahams to C. The husband’s evidence was that not only did Mr Abrahams show C documents but that he was also present in a room with her. That evidence is not supported by any other witness. Mr B initially referred to two incidents between C and Mr Abrahams but having resiled from that position, I am not entirely sure what was being suggested.
It was also the husband’s view that subsequent to the first Children’s Court hearing and after orders were made by this Court, Mr Abrahams or his office had suggested to the police that the intervention order not be withdrawn. There was no evidence from any witness that that was the case. That suggestion was not put to Senior Constable H. Ms E who was then responsible for the attempt to revoke the family violence order was tested about her dealings with Senior Constable H and I am quite satisfied that at no stage did she suggest that the police ought not agree to the revocation of the family violence order. The wife had consented to an order in this Court that she would do all things within her power to effect that revocation. It would fly in the face of the wife’s consent for such an approach to be made to the police by Ms E.
The cross-examination of the husband otherwise about the injunction concerning Mr Abrahams was also directed to the husband’s motivation. Whilst his motivation was expressed to be the pursuit of justice and the reunification of his relationship with his children, I do not accept that that was really his intent. His observation about bringing the wife “to account” in this proceeding is a good example of his motivation.
Much was made in the proceedings of how the wife had been said by the report writer Ms G to have alienated the children by having enmeshed them in her dispute with the husband. Whilst there was certainly commentary about that, there can be little doubt that these children were caught in a conflict which did no credit to the husband. His very conduct which brought about the proceedings in the Children’s Court could hardly be said to have been responsible parenting. In his case before me, much of that incident was simply evaded. Even if the wife had alienated the child C, the circumstances that gave rise to the family violence order did no credit to the husband.
I was not confident that I could accept anything he told me.
The wife
The wife is a healthcare professional by occupation. There is little doubt in this case that the Ms G report was critical of her for having enmeshed her problems with those of the children. That was not something she accepted. Much time was spent by senior counsel for the husband in putting to the wife that her alienation of the children was the cause of the problem before the Court. That was far too simplistic having regard to the evidence of Mr P.
In respect of the particular evidence that the wife gave, when various matters were put to her, I found her responsive and thoughtful. For example, it was the husband’s case that the wife had contributed to the alienation by ringing C as late as midnight in a number of telephone calls. That material was obtained from the wife’s telephone records. When that was put to her, the wife’s response was that she was responding to the child’s calls. Senior counsel for the husband said that that was an implausible explanation but I am left with no other explanation. The fact that there were a “cluster” of calls could not entitle me to draw an inference that the wife was destablising the relationship between the husband and C. I was left perplexed about that issue particularly having regard to the fact that the specific details of the calls and the timing of them were never put to the wife in cross-examination. It was submitted that I should infer from the clusters of calls that the wife was not only destabilising the children’s relationship with the husband but that her evidence was inherently unbelievable. I reject that. The wife’s evidence was that her daughter was not sleeping and was contacting her and in response. I fail to see the implausibility of that.
Another matter put to the wife as to credit related to an incident in which she sent a text message to K asking her to take a photograph of the husband and then delete the message. The wife did not dispute that that had occurred. Her explanation as to why she did it was that she did not normally look at the husband and therefore did not recall what he looked like. His looks had been the subject of some discussion between family members. That explanation was completely implausible. The difficulty I have is that I am not sure how I could conclude that such evidence has anything to do with the dispute between the husband and the wife’s lawyers. Critical though I may be of the wife in relation to that incident, the bizarre evidence that followed by that expose was that the husband had ascertained from K what she had done and physically manhandled her. The husband led no evidence about that but clearly saw it of significance because he instructed his counsel to cross-examine about it. It was not something new because it occurred before the case before me began and sadly, became the terminating event for K’s relationship with her father. Both parents no doubt contributed to whatever the problem was and it is now obvious why Mr P was so exasperated that his therapeutic work was unsuccessful.
The wife was cross-examined about a number of incidents. One of them related to a private investigator. It was put to the wife that she had deliberately lied in giving instructions to her solicitor to respond to a request by the husband’s solicitors for details of the private investigator. This incident also took on a life of its own in these proceedings.
The husband’s solicitors had requested the wife’s solicitors to confirm the wife’s involvement with the private investigator. The husband and his lawyers knew of that investigation because it had been apparent from the Ms Y report which apparently was already in their hands. The wife gave instructions to her solicitor to respond to the letter denying what the husband’s solicitor had asserted. On any view of the interpretation of the request and the response, the solicitor for the wife was simply denying the assertion in the precise words that had been used by the husband’s solicitor.
In discussion in final address, I referred to the wife’s solicitor’s approach as being “cute” because he was criticised by the husband’s counsel for not having given a fulsome explanation. Albeit that the response was written on instruction, I would certainly not criticise the solicitor for having done what he did and I fail to see how it reflects poorly on the wife in circumstances where the solicitor for the husband was already aware of the problem.
This particular incident also gave rise to criticism of the Independent Children’s Lawyer by senior counsel for the husband. The Independent Children’s Lawyer had not followed up on her expressed concern about the private investigator issue. Neither had the solicitor for the husband. In regard to the issue of the solicitor therefore, the whole issue was a red herring.
The wife was also cross-examined about what was said to have been stated by her in records of C’s school to show manipulation by her. The issue concerned a statement recording that whether C saw her father was the child’s choice. In isolation, the statement might have meant something but in context, it was irrelevant to the issue before the Court. The documents were then tendered purporting to be records of teachers. Little weight can be given to statements that were isolated and untested not only by cross-examination but also as evidence-in-chief. This was unhelpful to my determination.
There can be no doubt that the wife has an intense dislike of the husband. She impressed as firmly believing that her children were at physical risk from the husband. It is hard for me to conclude otherwise having regard to the fact that at least C was injured in an altercation with the husband and there appears some evidence that K was involved in an altercation which terminated her association with the husband. Thus, albeit that the wife was accused of alienating the children, I would not draw an adverse inference against her in relation to her credit. In a testing cross-examination, she answered appropriately and responsively. In those circumstances, wherever there was a clash between the evidence of the husband and the wife, I accept the evidence of the wife.
Mr B
Mr B was the solicitor for the husband but for reasons which were not explained in evidence, his retainer was terminated. He relied upon three affidavits, the second of which was affirmed on 21 January 2011 and filed the same day. This particular affidavit described what happened at the Children’s Court on 20 May 2009. Despite that evidence having been affirmed on 21 January 2011, Mr B commenced his oral evidence by indicating that he wanted to alter what he had said only a fortnight before. He said that he no longer accepted that he had recalled an incident which he had clearly set out in the affidavit. How that was possible was perplexing. The particular incident was critical to the husband’s case bearing in mind that the husband had maintained that Mr Abrahams had crossed the boundaries by being with C and giving all of the appearances of acting for her. In his evidence in February 2011, Mr B said he could not recall whether C was in the room at the time he asserted. He did however say that there was one incident where he saw Mr Abrahams and C in a room together.
In another piece of evidence, Mr B was asked about his instructions to counsel concerning what the magistrate at the Children’s Court was told about a family report. In evidence, about his own knowledge of a report, he said his recollection was that there “may be” a report being prepared by Mr P. Mr B knew the details of the order of this Court about when Mr P could do a report. He must have known that no such report was under construction because he had not commissioned it nor was he aware of any action of the Independent Children’s Lawyer that would have commissioned it. To the extent that it might be said that such a report would eventually be done, the transcript before the Children’s Court magistrate shows that the husband was indicating through his counsel Mr N that it was going to be used as part of his case in the disputed family violence order.
The cross-examination of Mr B, the husband and also Mr N did not shed any clear light on who gave what instructions and who, if anyone, was misleading the Court. Mr N said he was acting on instructions. Mr B had a responsibility to correct any error. Sadly, it was left to Mr Abrahams to do so and ironically, he was criticised for so doing.
In the second of the three incidents referred to earlier, Mr B appeared at the bar table in the Children’s Court in July 2009 upon the revocation of the family violence order. Much of the focus of the application before me related to the conduct of Ms E at that hearing in which she announced an appearance on behalf of C. Mr B sat at the bar table on behalf of the husband and did not endeavour to dissuade Ms E that she was wrong nor correct any impression that the Children’s Court magistrate may have had.
In relation to his evidence generally, like most witnesses, Mr B’s recollection was vague as one would expect having regard to the time that had elapsed. Wherever there is a conflict however between the evidence of Mr B and Mr Abrahams or Ms E, I have no hesitation in accepting the evidence of Mr Abraham and Ms E.
Mr N
Mr N is a member of the Victorian Bar. He was briefed by Mr B in the family violence proceedings in the Children’s Court on 18 May 2009 and subsequently at the Children’s Court on 20 May 2009.
Mr N was called before me by the husband for two purposes. The first related to what had occurred at the Children’s Court on 20 May 2009 and the second related to an incident that occurred in my courtroom on 9 February 2011 during a break in these proceedings.
Mr N conceded that he had little recollection of the events but was confident that when he signed the affidavit that he relied upon, the events were within his recollection and true. He set out the details of what occurred in the Children’s Court and in particular his contact with Mr Abrahams. When asked by senior counsel for the husband whether he confirmed the contents of his two affidavits, he said that there was a change that he wanted to make. In the last sentence of a paragraph in the affidavit, Mr N referred to the fact that he saw Mr Abrahams return to “his client”. When asked who he was referring to, he said C. This comment came in circumstances where he made it clear that in discussion between he and the relevant police prosecutor, he viewed Mr Abrahams as interfering and having no right to participate because he was not acting for a party to the proceedings. That is completely inconsistent with the alteration that he made to his affidavit where he referred to Mr Abrahams as returning to his client C. If Mr Abrahams had been acting for C, he would have had every right to participate in the proceedings. When this anomaly was brought to the attention of Mr N, he said that in the early discussions with Mr Abrahams, he was still trying to ascertain his standing in the proceedings. I do not accept that evidence.
Mr N appeared before the Children’s Court magistrate. The Court was told the husband intended to defend the proceedings and wanted to call for and rely upon a report by Mr P. In cross-examination, Mr N said that he could have only got those instructions from either his instructor or the husband. That evidence did not sit comfortably with evidence of Mr B but I accept memories had dimmed.
Part of the evidence before me was the transcript of the proceedings before the Children’s Court. Mr N is recorded as saying that the defence to the family violence order included that C had been placed in a position where she was “overstating” the case and had been thoroughly compromised by the wife’s involvement in the proceedings. He went further and said that that was thoroughly borne out by the observations of Mr P. How he knew that is hard to know having regard to the fact that the report was not available. The husband had certainly taken that view but I am not at all confident that the husband was a reliable reporter or that he had told Mr N that having regard to some of the notes that I have now been given in evidence by consent of all parties from the Mr P file. They do not support that contention. If the husband told Mr N that, it was not a true representation of what Mr P was saying.
The transcript also recorded that the duty lawyer told the magistrate that her understanding was that Mr P had not written his report and Mr N responded by saying that it was still under construction. That was incorrect with hindsight and I suspect, was a guess.
Confusingly, in his affidavit, Mr N swore on 9 February 2011 that he had a memory of seeing Mr Abrahams in a conference room with other people including a person he understood to be C. When it was put to him in cross-examination that Mr Abrahams was never in a conference room with the child, he said he could not really remember. I am prepared to accept that his recollection had sufficiently faded in the twelve months between when he swore the affidavit and he gave his evidence. However, his first affidavit was sworn on 23 February 2010 which was the best part of nine months after the event. In that affidavit, the detail was extremely vague.
Mr N as a barrister could not be expected to remember the precise details of a hearing which was routine. He was doing his job. However, when it comes to a conflict between his evidence and some other person there are a number of people who have given very clear evidence that justify me in accepting that their versions are more probable than that of Mr N. Mr N’s recollection has to be contrasted with a number of unusual events for other people. Mr Abrahams, Ms A and Ms Z each had a reason for this particular day to be considered unusual.
Adrian Abrahams
Mr Abrahams has been a lawyer and is an accredited family law specialist. He employed Ms E. He conducts a practice in which he has and oversees a total of about 100 clients. It was put to him by senior counsel for the husband that his memory could not be considered clear and accurate having regard to the busy practice that he ran. His response was enlightening. He said that in all his years in practice, the incident in the Children’s Court on 20 May 2009 stood out because he had never been so rudely treated by a member of counsel. The evidence of Mr N shows that there was a terse conversation between he and Mr Abrahams about his desire to be involved in the discussions with the police. Although rudeness and terseness may be two different things, there is a consistency in the evidence of Mr Abrahams that makes me think his version is more probable.
The evidence of Mr Abrahams was that he was specifically at the Children’s Court for the purposes of observing and taking notes. That evidence was consistent with the evidence of the wife. Mr Abrahams was adamant that he did not act for C and the only conversation he had with her was to exchange pleasantries with her upon his arrival at the court when he greeted his client.
Much was made by senior counsel for the husband about the fact that the evidence of Mr Abrahams was not believable because he had said that he did not sit with the wife and C. Questions were put about the closeness of the seating arrangements and a sketch was done by the husband which was altered by the duty lawyer Ms Z whose evidence I shall turn to. It was clearly suggested that the seating arrangements were such that parties would sit opposite each other about a metre apart. Much time was taken up with this cross-examination but it mystifies me as to its relevance having regard to the fact that at no stage was it put to Mr Abrahams that he actually conversed with his client about matters associated with her proceedings in this Court nor about the proceedings in relation to the Children’s Court. The only evidence that Mr Abrahams was tested about was his involvement with Mr N.
There is consistency between the evidence of Mr Abrahams and the duty lawyer Ms Z about what happened in the courtroom. The transcript clearly shows that Ms Z disputed a statement by Mr N to the Children’s Court magistrate about the existence of the Mr P report. It seems common ground on the evidence that at that point, Mr Abrahams spoke to Ms Z who corrected the position. If anyone would have known about the existence of the Mr P report, Mr Abrahams like Mr B, would have. The evidence of Mr Abrahams was that he was simply trying to rectify what was clearly an error. If Mr Abrahams was sitting in the body of the court and giving instructions to the duty lawyer Ms Z who had announced the parents on behalf of C, then the appearance to Mr N of Mr Abrahams acting for C must be wrong. If Mr Abrahams was acting for C, why was C represented by the duty lawyer?
A number of matters were put to Mr Abrahams about his conduct in the proceedings including the drafting of correspondence and affidavits. I found him blunt but responsive. He was not prepared to make concessions but I would not criticise him for that. That is clearly the way that he conducts his practice. All of his answers were succinct to the questions that were put to him. It was not suggested to him that he had otherwise spoken to, or acted for, C.
The husband, Mr N and Mr B (in one way or another) said that Mr Abrahams was in a room with C. There is no evidence other than that and I am not prepared to accept that evidence against the absolute denial of Mr Abrahams. His evidence is corroborated by the wife’s sister Ms A. Whilst there was an attack made on the credit of Ms A, her evidence on this point was that she was watching C like a hawk. She said that C was not with Mr Abrahams and certainly not in any room with him.
There was no reason then for me not to accept Mr Abrahams’ evidence.
Ms E
Since the proceedings began in the Children’s Court, Ms E changed her name so she appeared in the Children’s Court as Ms … .
Two issues that I earlier set out involving Ms E appear to me to be completely innocuous.
The first issue relates to the involvement of Ms E in attending upon C and having her swear an affidavit which would enable her to seek a revocation of the intervention order. Ms E was cross-examined about the steps she had undertaken and she gave all the impressions of a diligent young lawyer. She contacted the registrar of the Children’s Court to ascertain that the wife could not apply for the revocation of the order and the child had to sign the document. She spoke to the police officer Senior Constable H to get her agreement to the order being revoked. She spoke to the wife to get her to bring C to sign the necessary document. She was criticised for that by senior counsel for the husband on the basis that her correspondence with the then solicitor for the husband was along the lines that the wife should sign the document that the husband’s solicitor had prepared. As earlier mentioned, Ms E obviously did her homework well.
The attendance of C in the offices of the solicitor for the husband was clearly for the purposes only of signing the document. Ms E quite properly asked the child whether she understood what she was signing particularly having regard to the fact that it was an affidavit and the child replied that she did. Ms E was searchingly cross-examined about what other things were discussed. There is no evidence to indicate that the child was in any way involved in any discussion between the solicitor and the wife.
I found the suggestion of impropriety put by the husband against Ms E not only unwarranted but more indicative of the husband’s obsession with having the wife’s lawyers removed from the proceedings. Nothing that Ms E said to me in relation to that incident caused me any reason to doubt her truthfulness. Most importantly, it was not suggested that her memory was inaccurate.
The second incident in relation to Ms E concerned her attendance in July 2009 at the Children’s Court. She was cross-examined about what she had said and done. Ms E told me of her relative inexperience in relation to the Children’s Court and she confessed that she was quite flustered on the day. She attended the court to await the matter being called. At that same hearing, Mr B appeared on behalf of the husband. At no stage was it suggested in the proceedings before me that Mr B complained about the fact that the wife had attended with C and that Ms E was present. The irony of that is of course that Ms E was doing much the same as what Mr Abrahams had been doing but probably more so and yet no criticism was made of her conduct. The criticism of Ms E was that when the case was called over the public address system, she approached the bar table and announced that she appeared for C.
That evidence is not inconsistent with the evidence of Senior Constable H who said it was certainly not her who told Ms E to sit at the bar table when the parties were in the courtroom. The relevance of all of this escapes me. Ms E told the court that she appeared for “the protected person” and that was clearly an error. Outside of the court afterwards, Mr B approached her and told her of what she had done and she said that she was embarrassed. I am satisfied that her announcement in court was not a calculated or conscious decision.
The credit of Ms E was attacked in cross-examination. It was put to her that her memory was faulty but she denied that. It was suggested that she could not have been told by Senior Constable H to sit at the bar table because when the revocation order was made, the police officer was not in the courtroom. It was clear from the evidence of Ms E that she was told by the police officer to sit at the bar table before she entered the courtroom and further that another police officer motioned her to sit there when the case was called.
Ms E was asked whether she had made any notes. She produced them. In final address, in what could only be an unreasonable submission, senior counsel for the husband put to me that when I went to read the notes, I should note an alteration to them from which I might draw an adverse inference against Ms E. No such allegation was put to Ms E and when I pointed that out, senior counsel indicated that that was because she did not have Ms E’s notes. That is not a justification for putting the submission that was so put.
To the extent that it may not be clear, I reject any suggestion that Ms E acted inappropriately.
Ms A
Ms A is the sister of the wife. She attended the proceedings at the Children’s Court. She has clearly had problems with the husband in the past because it was put to her, presumably in relation to credit, that she had sought intervention orders against him and been unsuccessful. The relevance of that attack remains a mystery. It can hardly go to credit without something more. It was put to her that she was a supporter of her sister and that she had simply come along to give evidence for her sister. I understood it to be suggested that she was not independent. It was not her independence that was in dispute but rather her truthfulness. It was put to her that she was “revving the case up” and she replied that she was not. None of the cross-examination in relation to the incidents prior to the Children’s Court proceedings including the attendance of C at the police station could possibly have given rise to any suggestion that Ms A was “revving” the case up.
Ms A was challenged as to her memory. She was asked how her affidavit came into being and she said that she typed it herself and emailed it from work. She was even asked where the email was. She was asked why this particular incident stuck in her mind and how she could be so accurate and her response was enlightening. She said it was the day after her 50th birthday by which I presumed that it was a milestone in her life and one which she would not have forgotten. Like other witnesses, the affidavit was drawn a long time after the event. In Mr A’s case, it was almost two years. However, apart from her 50th birthday, it was Ms A who took C to the medical appointment whilst the wife was attending to matters at the police station. She was able to describe the condition of C which was corroborated by the medical certificate.
There is no reason for me to doubt the veracity of Ms A.
Senior Constable H
Senior Constable H is stationed at the Dandenong Prosecutions Section. I heard her evidence by telephone. The relevance of her evidence concerned the events of 22 July 2009.
Albeit that she had conducted many police matters subsequent to this incident, when challenged about how she recalled the specificity of what occurred, her answer was enlightening. She said she remembered the incident at the Children’s Court because she had had an injured shoulder and had been on leave but had specifically come in to deal with the matter that day.
Senior Constable H had obviously a significant involvement with C when the proceedings had begun. When the application was pursued for the revocation of the intervention order, it was Senior Constable H who wanted assurance that C would be safe from harm. Ms E had written a letter confirming that that was a condition of the revocation. Ms E had been cross-examined about the fact that the use of that expression showed that she was somehow acting for C or at least, troubled about the child’s physical safety. I am satisfied that it was Senior Constable H who was concerned about that issue and that Ms E was simply repeating her understanding of the condition of the police agreeing to the revocation.
When cross-examined by senior counsel for the husband about who she was acting for, Senior Constable H had no hesitation in saying that she was acting for C.
The evidence of Senior Constable H therefore really confirmed that her focus was on not only the welfare of C but she was present at the court to ensure that C was properly represented. There was no doubt in her mind that Ms E was not acting for C. One issue upon which counsel for the husband concentrated was the issue of who told Ms E to sit at the bar table when the revocation of the Children’s Court order occurred. To that end, it was put to Senior Constable H that she left the court before the revocation. In the same evidence however, Senior Constable H said she sat at the back of the court with C. I do not know what finding was expected of me about that evidence but it was clear that Ms E was told by a police prosecutor not Senior Constable H about the seating arrangements. The issue was another unhelpful distraction.
The evidence of Senior Constable H was helpful but did little to determine the question of whether the wife’s lawyers acted inappropriately.
Ms Z
Ms Z was the duty lawyer at the Children’s Court on 20 May 2009. She was a busy practitioner. She had a number of matters all of which required her attention with various people on a number of occasions during the day. Her evidence was that she was not specifically looking after C all day but going backwards and forwards.
Like other witnesses, it was put to Ms Z that her memory as to precise details was not clear. However, she indicated that there were notes on a file and she had referred to them. Those notes were not put into evidence. What stood out to Ms Z was the fact that this was a case in which there were proceedings in the Family Court and she was troubled about the clash between injunctive orders and intervention orders. She was able to explain that this was something that in cases such as intervention orders relating to children, she had been vigilant about.
Ms Z was asked whether she could say whether Mr Abrahams spoke to C and she candidly indicated that she could not. She was asked about the seating arrangements at the court and she adequately not only described them but was able to amend the drawing provided by counsel for the husband. She volunteered that in relation to Mr Abrahams, she spoke to him as a courtesy because he was representing the wife. Her focus with Mr Abrahams was on the interaction between the proceedings in which she was involved and those in this Court.
The affidavit of Ms Z came into being because of a request by Mr Abrahams. Ms Z said that she had been told that an allegation had been made about him having a conflict of interest and Mr Abrahams gave her the various affidavits and a transcript and she used those to assist her with what she also remembered and her notes. It was not suggested by counsel for the husband that that was irregular or improper.
Ms Z was the person who attended at the bar table in the Children’s Court courtroom when Mr N mentioned about the Mr P report. It was put to Ms Z that in that incident, she had told the magistrate that there was an opposition to the report being used. She agreed but this was not for some forensic purpose but because that there was a different emphasis on family reports used for this Court with those that might be tendered in the Children’s Court. To the extent that it was suggested that Ms Z was taking some forensic point against the husband’s interests, I reject that.
Ms Z confirmed that it was Mr Abrahams who alerted her to two issues. The evidence from the husband was that Mr Abrahams had been covering his mouth and whispering to Ms Z. That is consistent with what Ms Z said about Mr Abrahams. On two occasions he drew to her attention first, that the report referred to by Mr N did not exist and secondly, that the Independent Children’s Lawyer had not seen either C or K and she was expressing concerns to the Children’s Court about that. Those matters could only have come from a person who had experience and knowledge of the particular case in this Court.
In final address, senior counsel for the husband submitted that I should treat the evidence of Ms Z cautiously. She noted that Ms Z answered questions in a combative way in cross-examination rather than the way the witness had to other members of counsel and to me. Rather than that being a matter associated with demeanour, I find it had something to do with the types of questions that were asked. Nothing I observed in Ms Z was anything other than helpful.
Ms Z’s evidence supports a proposition put by the witnesses for the wife. She was confident about what occurred and made appropriate concessions about her memory. I accept her evidence as to the events of 20 May 2009.
Interestingly, Ms Z had noted the further return date after 20 May and was later surprised to find out that there had been a revocation. That was another unusual feature that made this case stand out in her memory.
Nothing I heard from Ms Z indicated that she was anything other than objective.
The notes/reports of the experts
Ms G
A family report dated 4 February 2009 was tendered in evidence. It had been ordered by Brown J on 14 January 2009 and prepared by a Regulation 7 family consultant and psychologist. The opinion of Ms G was not accepted by the wife. The evidence was not tested. In fact, the report of the family consultant albeit used in cross-examination by senior counsel for the husband, was not tendered in evidence until final submission. The fact that it remained on the court file at all was irrelevant.
It had relevance in that it was released to the parties only shortly prior to all of the Children’s Court incidents. There can be no doubt that Ms G was concerned about what was happening to the children. She thought that the wife was alienating them from the husband but her evaluation is somewhat cryptic. Her recommendations were that the parties had to engage in some form of dispute resolution in order to arrive at mutually agreed parenting. Having regard to what I heard, that was a forlorn hope. She also thought that the husband and the children should engage in supported mediation in order to “facilitate a willingness to spend time with the father”. She recommended a gradual build-up of the time with a mutual territory handover. That was most unlikely in early 2009.
Ms G observed that the children used incorrect language indicating that they had exposure to or were just learning the meaning of those words and her perception was that the children had been directly engaged in discussions relating to the parenting dispute and associated issues by their mother. The wife rejected that and without some testing of that evidence, I would be reluctant to draw any adverse inference against the wife.
The reports of Mr P
The parties jointly tendered some file notes of Mr P. In saying they were tendered, counsel for the husband said they were tendered by agreement not as to the truth of the statements but that the allegations were made. I understood this to mean that I could accept that Mr P had formed views about what he was told but not that the information provided to him by the parties was true. The evidence to which I have given weight is the view of Mr P as to what he saw and his consequent opinion.
The notes covered the period from 4 May 2009 to 21 December 2009. In May 2009 Mr P’s file note (presumably to himself) was that both girls felt they needed to consider their mother and her feelings when making a decision about their father and that Mr P intended to address that issue. He said that there were moments of disagreement between father and daughters and that the girls had placed quite unreasonable expectations around their father. That note was written only days prior to the family violence dispute.
Subsequent to the initial order being made by the Children’s Court in May, Mr P wrote on 10 June 2009 that he thought the wife’s distress at being in the presence of the husband was contrived and superficial. Senior counsel for the husband pointed to the fact that there was a reference in the report to the wife’s application for the intervention order on behalf of C but a subsequent memorandum indicating that it was C’s application through the police would suggest that Mr P misunderstood.
In June, Mr P noted the family was “wrought with difficulties”. He certainly thought that there was enmeshment between the children and the wife and that it was not going to be easily broken. He thought the wife would be resistant to therapeutic treatment. He thought that the wife invited sympathy from the children in her role as a victim and the children supported their mother rejecting their father. I do not find that this supports the husband’s case.
By the end of June 2009, Mr P noted that both parties showed a marked tendency to look back including at court orders and blamed each other for the children aligning themselves with the mother.
In July 2009 Mr P wrote to both parties. This was the very day prior to the revocation of the Children’s Court order. Mr P had had a session only some days before and he was critical of both parents. His letter ended with almost resignation that the situation was doomed to fail.
To the extent that Mr P might be seen to be criticising the wife for her enmeshed relationship with the children, the matter is not that simple. Without all of that evidence being tested, I would certainly not draw any adverse conclusion arising out of the notes of Mr P. Subsequent notes took the matter no further as the conflict escalated. In April 2010, Mr P noted C remained distressed and categorically indicated that she would not see him that she wanted to be left alone. K echoed the same sentiments.
None of the evidence therefore of the psychologists really assists in the determination of whether the legal practitioner failed to meet his professional obligations.
Ms D
Ms D is a secretary employed by Mr Abrahams and has had that position for approximately five years. In the totality of this case, her evidence was amongst the most controversial.
Ms D was requested by Mr Abrahams to attend the court on 9 February 2011 and take notes. That was because both Mr Abrahams and his employee Ms E, as witnesses, had been refused attendance in the courtroom to instruct counsel.
Early in the morning, Ms D had introduced herself to Mr Wood of counsel who appeared for the wife. She then sat in the courtroom at the back of the court. A mid-morning break occurred and Mr Wood, his client and other people left the court. Among the remaining persons in the court was Ms D who remained sitting where she had been. On the other side of the court and near the bar table were Ms Nikou of senior counsel on behalf of the husband, her instructor Mr K, Mr N as the witness for the husband and the husband himself.
Two versions of what occurred over that short space of time emerged.
Immediately after I resumed the hearing, senior counsel for the husband complained about the conduct of Ms D to which I shall refer in a moment. In a flourishing statement, she said that this was “further conduct designed to intimidate her client as well as” her. It may have been that she was taken by surprise but for the reasons which follow, I find there is no basis to assert that this was done to intimidate the husband and certainly not senior counsel. When she made the complaint, I asked senior counsel what she wanted me to do about it and she asked me to simply note the matter and she would deal with the matter in the running of the proceedings.
Accordingly, I turn then to the various versions of facts.
Mr N’s version which was set out in an affidavit that he swore some short time after the event was that Ms Nikou saw Ms D sitting in the back of the court and asked her whether she was involved in the matter to which she replied “No”. According to Mr N, senior counsel then asked her if she was “just observing” and the woman replied “Yes”.
Mr N then said that he and the others to whom I have just referred proceeded to discuss the proceedings but he took a limited part in the conversation as he had been requested by senior counsel to read some materials.
In cross-examination, senior counsel put to Ms D that she asked her for her name and whether she was involved in the case. Ms D said that did not happen. There was no evidence from Mr N that Ms D was asked her name. One wonders why it would be asked.
Ms D’s version of what occurred was that senior counsel asked her whether she was “a party to proceedings” and she replied that she was not. She confirmed that Ms Nikou had then asked her whether she was an “observer” and she said that she was.
The conflict in the evidence therefore is what each side understood was happening. Ms D said that this conversation with senior counsel occurred as the husband’s legal team was leaving the court.
The inconsistency between the two versions is whether a confidential conversation occurred before or after the questions were asked of Ms D by senior counsel. The evidence of Mr N clearly conflicts with Ms D. In her affidavit evidence, Ms D said that there was a conversation although she did not know what it was about and she recalled senior counsel leaning across to her and then asking the questions to which I have referred. She said she did not recall whether senior counsel continued to talk to Mr N but she may have.
Ms D was cross-examined about a number of matters. She understood what confidentiality was about in a lawyer’s office and she knew that the party for whom her employer acted was in conflict with the party for whom senior counsel appeared.
When challenged about what she had been doing there bearing in mind it was a break in the proceedings, she said she had never been to court before and was sitting because she had nowhere else to go. No-one had told her what to do and she was not paying attention.
Both the husband and Mr N said that they observed Ms D writing on a pad. Her notes were called for. She produced them but nothing further was said about them. They were tendered in evidence but I fail to see anything in them that might assist me to resolve this issue. In addition to the notes, Ms D said she had her personal diary. That diary too was called for and produced. In both the case of the notes and the diary, Ms D had had them typed. The diary notes are innocuous referring to such things as movies, rescheduling a hair appointment and her father being in hospital for a biopsy. The notes so transcribed appear to be subsequent to the disputed incident above so they take the matter no further. Nothing in those voluminous notes was brought to my attention as being relevant to the determination.
Senior counsel for the husband put to Ms D that she was in error about the conversation. Senior counsel put that she had requested her name but as I have pointed out, Mr N did not give that evidence. Senior counsel was clearly not giving evidence. The husband in an affidavit made no mention of the name. Mr N without quoting verbatim, said that senior counsel asked whether Ms D was involved in the matter. The husband’s version was quite specific in that he said his counsel asked: “Are you involved in these proceedings?” Senior counsel for the husband in cross-examination put a different wording again.
The importance of these various versions is that they highlight the fragility of the human memory.
In this case, there is an inconsistency in which each party’s version is quite plausible.
Ms D’s evidence was that she did not take any notice of what was being said whilst Mr N said that their voices were audible.
Senior counsel for the husband put clearly that this was a confidential conversation and stressed in submission that it was so in relation to anyone from the wife’s legal team. When I asked counsel about the fact that she was conversing in the courtroom in front of a stranger, she put that the significance was the fact that the wife’s legal team member was present. I find that position rather odd. As I pointed out, if a bus load of nurses from a hospital had come to observe the proceedings, presumably the conversation between lawyer and client should not have taken place in the presence of those persons if it was confidential. I reject the suggestion that there is any difference between a member of the wife’s legal team and unknown “observers”.
Senior counsel for the husband put to Ms D that she was not an observer but I am not sure what else she could be. It was put to her that she was not an “innocent” bystander. She was clearly an employee of Mr Abrahams.
The relevance of this evidence is whether or not Ms D was doing something wrong either by being present knowing that the husband and his lawyers were there or that having found herself in that position, she should have absented herself. I am satisfied on the evidence which is largely unchallenged that Ms D has no experience in courts and was simply doing what she was told. Rather than placing the emphasis or obligation on Ms D to do something about the situation, it might have been more prudent for the husband’s legal team to have been conscious of the fact that they were conversing in the presence of someone they did not know. That too depends upon the finding that I can make in relation to the conversation between senior counsel and Ms D.
There are a number of versions here and I am conscious of the fact that it is the evidence that is given not the questions that counsel ask that requires my determination. The conflict in the evidence is between the husband, Mr N and Ms D. For reasons that I have already set out, there is little about the husband’s evidence that I find attractive. The conflict between the evidence of Mr N and Ms D is relatively modest. In my view, Ms D was doing nothing wrong. Had it been a lawyer finding himself or herself in that position, one would have expected them to have absented themselves but I am not satisfied that despite Ms D being an employee of Mr Abrahams, she had any such responsibility.
Because of the serious allegations made in opening her case, I asked senior counsel for the husband whether she was asserting that Ms D had been “planted” to endeavour to overhear some confidential conversation. Ms Nikou said that that was not what she was putting. She submitted that Ms D was in a position to overhear confidential information and even if she had not done so, there was a possibility and that was sufficient to breach the relevant standard. That is a proposition that I reject.
Ms D subjected herself to cross-examination and it was rigorous. She maintained consistently that she could not see that she had done anything wrong and she was simply doing what she was told. I accept that evidence.
The final significance of the evidence of Ms D relates more to the question of the confidentiality argument. No evidence was given about what was discussed and I was asked to accept that the conversation was directed to both property matters and the proceedings before me. I have no reason to doubt that having regard to the fact that there is no evidence to the contrary. That however does not mean that the husband has in some way been prejudiced. To the extent that the agent of the wife in Ms D might have heard something about the proceedings, it was certainly not suggested that the property proceedings had been or could be compromised by what Ms D might have heard. Section 79(2) of the Act requires a court to make an order which is just and equitable regardless of what the parties might ultimately say.
Accordingly, I do not find that there is anything untoward in what Ms D was doing and certainly not anything of the type alleged in the opening of the case but it does raise the warning for all legal practitioners to be conscious of where and how they have confidential discussions.
The legal issue
Courts dealing with family disputes are entitled to expect that legal practitioners conducting litigation will not abuse or manipulate processes of the Court. Those processes are designed to achieve an outcome in a parenting case which is in the best interests of children. In the case of a financial matter, it is about achieving a just and equitable outcome for both parties. It is inconsistent with the administration of justice that legal practitioners are anything other than honest and candid with the Court. The legal profession itself has set standards for its members and the Court supports those. They are a guide and of assistance in this case.
It is not disputed in this case that the Court has power to control not only its processes but also the legal practitioners practising within it. A finding that a legal practitioner has acted contrary to those processes requires the Court to step in and if necessary, preclude that person from continuing to represent a particular litigant. Litigants are entitled to expect the Court to supervise its processes because justice may be otherwise denied.
In all litigation but particularly family law matters, justice must be done but also be seen to be done (see D and J Constructions Pty Ltd v Head and Ors [1987] 9 NSW LR 118 at 123). The transparency of justice includes the Court’s processes.
While the court must decide whether a legal practitioner has met an appropriate standard if requested to do so, the test for whether justice arising out of the conduct of a legal practitioner has been met should be determined by the Court through the eyes of a reasonable, properly-informed and independent observer. That fictional person as Kirby J called him or her, in cases concerning judicial bias, is not a lawyer but neither is he or she a person wholly uninformed and instructed about the law in general or the issue to be decided. In my view, that same person is the observer here. That person would have sought to be informed “on at least the most basic considerations” relevant to arriving at a conclusion. (See Johnson v Johnson [2000] HCA48; 201 CLR 466). Kirby J also described that person as a reasonable member of the public who is neither complacent nor unduly sensitive or suspicious.
Part of the proper information for that person to understand is that the Court must be cautious in ensuring that a disgruntled family law litigant does not manipulate the situation to endeavour to obtain some advantage by removing a former spouse’s practitioner just because they see the practitioner as doing their spouse’s bidding. The entitlement to legal representation is normally a matter for the parties alone. It is not unexpected that in cases of considerable conflict, litigants will see the lawyer for their former spouse to be as much part of the dispute as their spouse themselves.
The independent observer must also understand that while a court expects a high standard of legal practitioners, the removal of that practitioner should not occur simply because of negligence, error or mistake but rather where there is evidence of a calculated or conscious breach of standards which has the effect of a denial of justice to another party. That same observer must also be able to put into the context of highly conflictual proceedings, all of the facts which I have considered enabling a judgment to be formed as to what happened here.
The good conduct guide for lawyers
The Professional Conduct and Practice Rules (2005) were made by the Law Institute of Victoria Limited. They provide a code of conduct regulating legal practitioners. A failure to abide by the Rules places a legal practitioner at risk of being dealt with by the relevant disciplinary bodies under the Legal Profession Act (2005) (Vic).
The code covers not only lawyers but also their employees.
The Rules require practitioners to supply their clients with legal services of the highest standard unaffected by self-interest. At the same time, the practitioner must discharge obligations in relation to the administration of justice.
Conduct in the course of legal practice must not be dishonest or otherwise discreditable but it must also not be prejudicial to the administration of justice. The code provides that a legal practitioner must not engage in conduct likely to diminish public confidence in the administration of justice.
It is a requirement that a practitioner take all necessary steps to correct any misleading statement made to a court as soon as possible after the practitioner becomes aware of the statement being misleading. I have dealt with that issue in relation to Ms E.
The best practice guidelines published by the Family Law Council and the Family Law Section of the Law Council of Australia set out more comprehensively specific guidelines for family lawyers. The best practice should be the focus of all lawyers not only in relation to a constructive resolution of family law disputes but also setting the boundaries for lawyers to be courteous and professional in all of their dealings not only with clients and the Court but also with each other. Fundamental to that conduct is that lawyers should retain professional objectivity at all times and not simply be regarded as the mouthpiece of their client.
The guidelines set out that where children are involved in parental proceedings, lawyers should ensure that their client is asked to refrain from involving the children in any way. Specifically, the guide suggests that clients refrain from discussing family law proceedings with their lawyer within the earshot of children. On the evidence I have heard, I am satisfied that neither Mr Abrahams nor Ms E breached that guide. There is a clear difference between discussing the substantive proceedings with a client in the presence of a child and actively involving the child in those same proceedings. I am satisfied there has been no impropriety or breach of any guideline here.
I have been selective in picking the relevant parts of both the guidelines and the code of conduct but in my view, nothing in the evidence in this case would suggest to an independent and reasonable observer that the guideline has been breached let alone the code. I do not find any such conduct.
Isolated incidents and the holistic issue
It was submitted that even if I was to find that, in isolation, these events did not mean that there had been some tainting of the process, holistically, I should find that the husband could have no confidence in the judicial process for so long as Mr Abrahams continued to act for the wife.
In isolation, each of the events is, as I have found, innocuous. Collectively, they are so disjointed both as to the participants and as to time, I find that it matters little whether they are collective or isolated.
The independent observer
The findings I have made above relate to issues in contest. The question remains as to how the independent observer earlier referred to would have seen each of these events either collectively or in isolation. On the basis that the independent observer was made aware of the importance of the process enabling a litigant to obtain justice, along with the obligations of lawyers to ensure that they neither abuse their positions of power or inflame proceedings, would the independent observer have been disturbed by any of these events? I could not find that a properly instructed, reasonable and independent observer would say that Mr Abrahams or his employees had overstepped the boundaries either from the perspective of what I have earlier referred to as the process to obtain justice or for that matter, the guide to good conduct by practitioners involved in family law proceedings to which I have earlier referred. On that basis, the husband’s application must be dismissed.
The dismissal of these proceedings will no doubt give rise to questions of costs. Rather than deal with the matter in open court and expend more court time, I propose to make an order that each party make any application in writing incorporated into a written submission. I propose to allow a short period of time for these reasons to be digested and for any such written submission to be filed and served on all other parties.
ANNEXURE
LIST OF DOCUMENTS RELIED ON
The husband
Application of husband filed 3 December 2009
Affidavits of husband:
(a)sworn 3 December 2009 and 3 December 2009, especially (but not limited to) paragraphs 5, 6, 7, 10 to 13 inclusive, and 16 to 28 inclusive;
(b)sworn 9 April 2010, filed 9 April 2010;
(c)sworn 23 June 2010, filed 28 June 2010;
(d)sworn 2 September 2011, filed 2 September 2011;
(e)sworn 18 January 2011; filed 24 January 2011.
Affidavits of Leon B:
(a) affirmed and filed 23 February 2010;
(b) affirmed and filed 21 January 2011
(c) affirmed and filed 4 March 2010
Affidavits of Thomas N:
(a) sworn and field 23 February 2010;
(b)sworn 9 February 2011, leave granted to file 9 February 2011, filed 6 February 2012.
Family report dated 4 February 2009. (Annexure A in husband’s submissions dated 4 March 2010).
Transcript of proceedings at Children’s Court dated 22 July 2009.
Orders dated 1 April 2009.
Orders dated 12 June 2009 together with judgment of the same date.
Submission dated 4 March 2010 and 11 January 2011.
The wife
Wife’s submissions dated 15 March 2010.
Wife’s further submissions dated 14 October 2010.
Affidavit of the Wife sworn 16 December 2009 and filed 21 December 2009.
Affidavit of Wife sworn 7 February 2011.
Affidavit of Wife sworn and filed on 5 September 2011
Affidavit of Deanna E sworn 15 December 2009 and filed 21 December 2009.
Affidavit of Deanna E sworn and filed 16 April 2010.
Affidavit of Deanna E sworn and filed 4 February 2011.
Affidavit of Adrian Abrahams sworn 15 March 2010.
Affidavit of Adrian Abrahams sworn and filed 4 February 2011.
Affidavit of Senior Constable H sworn 30 October 2010 and filed 1 November 2010.
Affidavit of Ms Z sworn and filed on 4 February 2011.
Affidavit of Ms A sworn 7 February 2011 and filed 23 August 2011.
Affidavit of Ms D sworn 15 February 2011 and filed 23 August 2011.
Parts of file of Mr P as tendered by the Wife.
I certify that the preceding One Hundred and Eighty Four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 February 2012.
Associate:
Date: 28 February 2012
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