Reiner and Reiner

[2007] FamCA 346

FAMILY COURT OF AUSTRALIA

REINER & REINER [2007] FamCA 346

FAMILY LAW - LEGAL PRACTITIONERS - Solicitor to stand aside

Family Law Act 1975 (Cth)

APPLICANT: MR REINER

RESPONDENT: MRS REINER

FILE NUMBER: DGC 1284 of 2007

DATE DELIVERED: 16 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 16 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CURTAIN

SOLICITOR FOR THE APPLICANT: AUGHTERONS

COUNSEL FOR THE RESPONDENT: MR KENT-HUGHES

Orders

1. THAT leave be granted to the husband for his counsel to make an oral application for the solicitors now acting for the wife to be restrained from so continuing to act in the proceedings.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

3. THAT all extant children and parenting applications be otherwise adjourned to the Registrar’s Duty List at 9.45 a.m. on 14 May 2007.

4. THAT pursuant to s.11F each of the parties today attend a non-privileged conference with a Family Consultant, Ms C and discuss all children and parenting issues and endeavour to resolve such matters as are now in dispute.

IT IS NOTED:

A.THAT the determination of the Court was that the solicitors for the wife should immediately cease acting for her and, upon receiving an acknowledgement from Mr Kent-Hughes that his solicitor would so act no order is intended to be now pronounced and to permit the solicitor to make appropriate arrangements in accordance with the reasons of the Court.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1284 of 2007

MR REINER

Applicant

And

MRS REINER

Respondent

REASONS FOR JUDGMENT

1. In the matter of Reiner, Mr Curtain of counsel appears for the husband; Mr Kent‑Hughes of counsel appears for the wife.  The matters that are before the court relate to issues of and related to the child, a son, born 4 December 2002.  Those issues, however, were not the particular issues outlined to the court in this application. 

2. What occurred was that the matter was listed in the Registrar's Duty List.  Mr Curtain foreshadowed an oral application to exclude the current solicitors from continuing to act for the wife.  The matter was therefore transferred to me for determination in the Judicial Duty List.

3. The matter has proceeded by way of submissions.  Mr Curtain foreshadowed the application being that such solicitors are and should be disqualified from acting and continuing to act for the wife.  No objection was taken, appropriately so, to that application being before the court and I have heard submissions from both counsel.  I have had the advantage of briefly reading the material, but in particular a letter tendered by consent and dated 31 January 2007.  That letter is a lengthy advice prepared by the solicitor now instructing Mr Kent-Hughes in court this day and now purporting to act for the wife.  The letter was addressed to both husband and wife and the subject matter was predominantly issues of and concerning the then likely relocation of each of them, their child and also the wife's child of a prior marriage to America. 

4. If the instructions had been obtained jointly and exclusively on the issue of relocation and instructions or questions had not touched upon other issues, then I may not have taken the attitude that I will adopt in this matter.  Paragraph 10 of that letter highlights that, beyond the scope of relocation issues, there were some appropriate discussions about the difficulties confronting this husband and this wife in their marriage.  I well understand that was a very important issue because the relocation to America would have only been on the basis of a successful family relocating with total stability.  Once it was known that was not the case, it would have impinged on a relocation application.

5. The other issue is that the conference was of some length.  For whatever reason, the wife did not attend and the husband went alone to put the position of he and his wife and to seek advice on relocation.  I accept that the solicitor acted wholly properly in continuing the conference with the husband and giving detailed advice.  The reality, however, is that over a period of some two or three hours, that solicitor should well have obtained some insight into the personality, character and disposition of the husband.  She had the opportunity to form an opinion or make a judgment upon the demeanour and attitude of the husband generally, and particularly when issues of an incidental to the marriage difficulties were discussed.

6. The approach that the courts must take in these cases is primarily one of commonsense.  There must be an absolute equality of dealing with each party and there can be no perception of bias or unequal opportunity or advantage.  Because of the length of the conference, the issues of and related to the family, the welfare of children and the difficulties in the marriage, it does seem to me that it would be very prudent, both from a commonsense point of view but also from an obligation as a solicitor, to stand aside.  The perception that the husband would harbour is that he has been open and frank in his discussions with a solicitor who was then not acting individually for the wife but now purports to act for the wife in ongoing proceedings.  It may be that there is no real advantage but the perception is and must be that there could be an advantage.

7. On that basis, it seems to me that the propriety of the course of action, both in commonsense and in an understanding of one's appropriate legal duty, would be to stand aside and to refer the wife to another solicitor.  That is what I am going to order, but I emphasise I do so without any criticism whatsoever of the solicitor and her role in trying to act on the instructions of this couple that formerly retained her, now only the wife continuing to retain that retainer.

8. What I propose to do is to require the solicitor to discontinue acting for the wife.  She is free to assist the wife in obtaining any further solicitor and of course in providing file information documents to that newly engaged solicitor.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 24 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as REINER & REINER