RILAK & TSOCAS

[2015] FamCA 425

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS [2015] FamCA 425

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks recusal of the trial judge – Where the father and Independent Children’s Lawyer (“ICL”) oppose the application – Where proceedings are part heard – Where the trial judge’s legal associate had obtained a position with the firm of solicitors acting for the father –Where the firm had advised that the legal associate’s employment would not commence until after final judgment had been given in the proceedings – Where the mother submitted that there might have been improper communication between the trial judge’s chambers and the lawyers for the father – Where the Court found that the fictional observer, properly advised could not reasonably apprehend a basis for recusal on the presenting facts – Where the mother’s application for recusal is refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks an injunction restraining the father’s lawyers and counsel from acting – Where the father and ICL oppose the application – Where the mother relied on the same submissions as for her recusal application – Where there is no foundation for the mother’s application – Where there is no basis for removing the father’s solicitors or counsel – Where the mother’s application is refused.

Crimes Act 1914 (Cth) s 40
Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Griffis& Griffis (1991) FLC 92-233;
Johnson & Johnson (2000) 201 CLR 488;
McMillan & McMillan (2000) FLC 93-048;
Thevenaz & Thevenaz (1986) FLC 91-748; and
Webb v The Queen (1994) 181 CLR 41.

APPLICANT:	Ms Rilak
RESPONDENT:	Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

FILE NUMBER:	SYC		SYC 2062 of 2010
DATE DELIVERED:		5 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 2 June 2015

REPRESENTATION

SOLICITOR FOR 

APPLICANT MOTHER:

Jodhi Coady Law

COUNSEL FOR THE RESPONDENT FATHER

Mr Levy

SOLICITOR FOR THE RESPONDENT FATHER

Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

1. The mother’s Amended Application in a Case filed in Court on 2 June 2015 in respect of recusal and disqualification is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsocas and Rilak 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 SYDNEY

FILE NUMBER:  SYC2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court are interlocutory applications.  The mother seeks orders in the nature of orders for the abandonment of a part-heard hearing for parenting and financial relief, the recusal of the trial judge and an injunction to restrain solicitors and counsel from acting.  She has also filed an application for interim costs and for orders to suspend or vary existing parenting orders, but logically, the hearing of that application must await the determination of the first mentioned application.

2. The father opposes the mother’s application as does the Independent Children’s Lawyer (“ICL”).  The father has filed an application in a case seeking that the parents’ child, B, forthwith live with him and have supervised time with the mother.  Again, the hearing of that application had to await the determination of the mother’s applications for recusal and disqualification.

3. These applications are made in the context of proceedings between the parents for parenting and financial relief that are part heard before me.

4. I heard the parties submissions on 2 June 2015, dismissed the mother’s applications for recusal and removal of the father’s solicitors and barrister and the consequential orders sought.  These are the reasons for that decision.

The Background Facts

1. It is not necessary for present purposes to set out a complete history and background but some context is necessary. The mother and father are 48 and 57 years of age, respectively.  They met in August 2008 and married in 2008.  the child B, the only child of the parents’ relationship, was born in 2010.  The parents separated on a final basis on 9 February 2010.

2. The proceedings commenced in 2010 and the final hearing was listed over four days commencing on 27 January 2015 in relation to parenting and financial issues, including settlement of property.  The hearing commenced on 27 January 2015.  The mother was represented by a solicitor.  The father was represented by solicitor and counsel and the ICL was represented by counsel.  It quickly became apparent that a hearing on all issues could not be contained within four days and I indicated, without complaint on behalf of the parties, that the hearing in relation to financial issues would be split off to a later date.  Even then it was necessary to sit for extended hours to attempt to complete the parenting component of the hearing.  On the last day of that week, 30 January 2015, I was indisposed and it was not possible to complete the hearing even in respect of parenting issues.  While I was unavailable, the matter was listed before another judge and in consultation with the parties’ lawyers, was adjourned before me for the resumption and completion of the hearing on all issues, for three days commencing on 20 May 2015. 

3. On the resumption of the hearing on 20 May 2015 the parents sought and were granted leave to re-open their cases in relation to events involving the child occurring on and from 28 March 2015.  The mother’s material included a Notice of Child Abuse, Family Violence or Risk of Family Violence and a further affidavit alleging that the child had made a disclosure that the father had sexually abused her on 28 March 2015.  On 20 May 2015 the advocates agreed that in light of the new material, which included audio recordings involving the child and two audio visual recordings of JIRT interviews with the child, the hearing could not be concluded in the time listed but they could not be confident, until Dr C, the single expert psychiatrist had seen the new evidence, about how much further time would be needed.  On 20 May 2015, the last of three experts in respect of an issue in relation to immunisation was cross-examined and consequent upon the re-opening of her case, the cross-examination of the mother re-commenced.  Arrangements had been made for Dr C to be available on 21 May 2015 to read and view the updating and new material and to be cross-examined.

4. On the morning of 21 May 2015 there was a discussion about how everyone involved in the case would most efficiently become familiar with the audio visual evidence.

5. Importantly, at about 10.40 am on 21 May 2015, I disclosed to the parties that my legal associate had obtained a position with the firm of solicitors acting for the father, Watts McCray and that I understood that she expected to commence there in a week or two.  I said that my legal associate assisted with the development of draft judgments in proceedings.  Noting that I would not call on the lawyers to make any submissions until they had informed their clients of the implications of the disclosure and obtained instructions, I indicated that even if there was no objection on behalf of any party, my initial inclination would be to vacate the hearing and recuse myself if my legal associate commenced at the firm prior to the conclusion of the trial.  I said that I thought that there may be an argument that the same approach would be appropriate if her commencement was after the trial but before delivery of judgment, because of the potential for a re-opening of the case in that period.  In that regard, there had already been such a re-opening after the January part of the hearing in these proceedings.  Finally, I said that I thought that no issues of recusal could arise if my legal associate commenced with the firm after final judgment.

6. I stood the matter in the list and later during the morning of 21 May 2015 I was told that the parties were watching the audio-visual evidence.  I was told that Dr C arrived at the Registry and that she had read and viewed the fresh evidence. 

7. When the hearing later resumed at about 2.30 pm the mother’s solicitor, Ms Coady said that her instructions were to make an application that I no longer continue to hear the case, that the hearing recommence before another judge, at Wollongong and that there would be a related application to restrain Watts McCray solicitors continuing to act for the father.

8. At that time the father’s counsel indicated that there had been no access to any firm records by my legal associate and that the partners of the firm would meet early in the following week to determine the firm’s reaction to the presenting circumstances. 

9. I indicated that I was inclined to continue to make use of the available time on 21 and 22 May 2015, including the valuable time of Dr C.  I explained that if I did not grant the mother’s application that I recuse myself then the best use would have been made of the time and cost of taking that evidence and that if I did recuse myself, although that time and cost may well be wasted, the costs had been committed in any event.  That course was agreed to by the counsel for the father and the ICL and there was no immediate demur on behalf of the mother.  Dr C was sworn in just before 3.00 pm and was examined on behalf of the ICL.

10. Just before 3.30 pm the mother’s solicitor commenced her cross-examination of the expert and that continued until just before 5.00 pm.  It became clear that the cross-examination of Dr C would not be completed that day and she kindly agreed to return to complete her evidence the next day.  I invited Ms Coady to take instructions overnight as to any further/final topic she might wish to pursue with the expert on the following morning, before the father’s counsel commenced his cross-examination.

11. At about 10.22 am on 22 May 2015 the solicitor for the mother advised that her instructions had been withdrawn and that the mother would continue without representation.  The mother then said that she would press for my disqualification immediately and would not countenance the continuation of the hearing.  I again sought to assure the mother that I could foresee no mischief from continuing to take Dr C’s evidence before dealing with her applications.  At that time the father’s counsel repeated his instructions about the lack of contact between my legal associate and the records or files of his instructing solicitors; that the partners of the firm would meet early in the following week to determine the firm’s reaction to the presenting circumstances and that he anticipated that at least one of the matters they would discuss would be the delay or deferral of the commencement of the employment of my legal associate.  I gave the mother some time to consult with her solicitor about those matters. 

12. When I returned to the Court at about 11.30 am the mother’s solicitor said that she had instructions to put her client’s applications in a case before the Court and she was then instructed to withdraw.

13. The mother handed up two applications in a case.  The first of the mother’s applications sought my disqualification and removal of the father’s solicitors and related orders.  The second application dealt with interim financial relief for the mother, interim parenting orders and other matters.  The mother confirmed that only her first application was pressed before me immediately.  The mother asked about hearing dates for the two applications.  I told the mother that I would hear her first application that day but after the conclusion of the cross-examination of Dr C.  I explained that I could not allocate a hearing date for the second application until the outcome of the first application.

14. I asked the mother if she had further questions for Dr C and she repeated that she was not comfortable about continuing the proceedings.  She said she was aggrieved about the conduct of the father’s solicitors over time and in respect of the circumstances I had disclosed to the parties, notwithstanding that her employment had not commenced, she was concerned about contact and the potential for communication between my legal associate and those solicitors.  I warned the mother that if she left the courtroom she would lose the opportunity to finish her cross-examination of the expert and that the proceedings, interim and final would continue in her absence.

15. I then invited the father’s counsel to commence his cross-examination of the single expert.  Thereupon the mother and Ms Coady left the courtroom.  Soon after Ms Coady returned to the back of the courtroom where she remained for the balance of the pre-lunch session.  The mother was later called but at no time did she return to the courtroom either to press her applications or to otherwise take part in the proceedings.

16. At the conclusion of the cross-examination of Dr C, she was excused.  Then the counsel for the ICL and the father pressed the father’s application for the immediate removal of the child to the father’s care.  The orders sought by the father were set out in his Case Outline although the father did not press for an order sought therein for an updating report from the single expert.  The ICL supported the father’s application.  In the course of submissions it was argued that the mother presented a flight risk for the child and that no protective orders had been made in that regard.  I immediately made an interim order restraining the mother from causing or permitting her removal from the Commonwealth and requesting an entry on the watch list.  It later transpired that there was already a watch list entry (presumably sought administratively) albeit only referring to the child by one of the names under which she has been known.

17. After hearing submissions from counsel for the ICL and the father and for reasons given at the time, I refused to order an immediate change of residence and adjourned the father’s application to 2 June 2015 before me.  That was the first date convenient to those parties.  The orders made included an order requiring the mother to attend at Court on 2 June 2015 and to deliver the child to the child minding room at the registry on that morning to abide further orders made that day.

18. I was advised by my administrative associate that on 28 May 2015 the mother had asked the registry to arrange for an interpreter in the Country A language to assist her on the adjourned date and that it had not been possible to locate a suitable interpreter.  The mother was advised of that situation.

19. On 2 June 2015 the mother attended at Court and delivered the child to the child minding room.  She requested that her sister Ms D assist her at the bar table and after it was confirmed that the sister would not be a witness in the proceedings, leave was granted unopposed.  The mother sought and obtained leave to file two amended applications in a case and an affidavit in support.  The applications were in similar terms to the applications filed on 22 May 2015.  In respect of the application for my recusal and to restrain the father’s solicitors from acting and related orders, the mother added a further claim for relief, to the effect that the father’s counsel also be restrained from acting.

20. In opposing the mother’s application the father’s counsel relied on two affidavits from his instructing solicitors.  They set out the extent of contact between my legal associate and the firm and the fact that the firm had advised my legal associate that her employment would not commence until after final judgment had been given in these proceedings.

Submissions

1. The mother’s submissions in relation to recusal and her submissions in relation to an injunction restraining the father’s lawyers from acting, were in similar terms. 

2. The mother submitted on a number of occasions that I had offered to recuse myself and that she was simply accepting that offer.  I do not agree that I made an unqualified offer to recuse myself.  As I recall it, the effect of my communication to the parties was as I have set out earlier in these reasons.  It may be that my communication was infelicitously expressed or in any event, otherwise inadequate but in my view, I was not and am not able to recuse myself in the circumstances of this case.

3. In short, the mother believes that there might have been improper communication between my chambers and the lawyers for the father.  Her concerns were not relieved by the fact that my legal associate has not commenced working for the firm of solicitors representing the father and will not commence in that role until after final judgment in these proceedings.  As I understand it, she feels that in applying for a job with Watts McCray Lawyers, there has been or could have been inappropriate communications between my chambers and the solicitors. 

4. The mother said that she is worried because the evidence reveals that there was initial contact between my legal associate and the firm on 11 March 2015.  She notes that one of her applications to restrain the father was dismissed on 9 April 2015.  My legal associate was interviewed by the firm on 16 April 2015.  The mother submitted that my legal associate knew information from my chambers, would have had intimate knowledge of the course of the case and could have conveyed that to the father’s solicitors.  The mother submitted, correctly in my view, that the solicitors would have known that she was my legal associate.  The mother submitted that there is an imbalance of power between the solicitors and a potential employee.  That, the mother submitted, gave rise to the appearance of bias.  The mother said something to the effect that Watts McCray Lawyers have inside knowledge from my legal associate from her initial interview on 16 April 2015 and have promised her employment.  She said that there is no guarantee that she has not disclosed confidential information to the lawyers.

5. The mother agreed that her arguments about the lawyers were based on the same concerns.  The mother went on that because the legal associate would have contacts within the Court, she might know a new judge to whom the proceedings were referred.  I did not follow that submission, which would seem to suggest that the mother contended that no Sydney judge could ever hear the case.

6. In relation to the father’s counsel, she felt that he too would have access to confidential information from the solicitors.  The mother said that she had detected an inappropriate closeness between the father’s counsel and learned counsel for the ICL.  The mother observed those counsel talking to each other in a friendly way and to her observation, excluding her solicitor from their discussions.  When I pressed the mother about that issue, the mother said that she did not seek the removal of the ICL’s counsel but was concerned about confidential information from my chambers, passing to the father’s solicitors and then his counsel would eventually in turn, reach her.

Recusal

1. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the joint judgment of the majority of the High Court contains the following:

   19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

   20This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

   21It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

   22The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

   23Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.

   24In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference. (footnotes excluded)

1. The High Court also considered the issue of bias in Johnson v Johnson (2000) 201 CLR 488. In that case the High Court dealt with and ultimately dismissed an appeal against a decision of the Full Court of this Court, which in turn dismissed an appeal against a refusal by a judge of the Family Court of Western Australia to disqualify himself. The High Court said at 492:

   11 It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   12 That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

   13 Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

   14 There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation. (footnotes excluded)

2. In my view the circumstances here would not permit, let alone, justify my recusal.

3. As in Johnson above, there is no evidence of inappropriate communication between the father’s solicitors and me or vice versa nor that I have had access to information that is not properly before me.  The mother very clearly expressed her concerns.  She was taken by surprise by the revelation made by me to the parties on the morning of 21 May 2015 and could not get the resultant concerns out of her head.  I do not know that she has ever articulated the precise mischief she fears.  She referred to communication between the firm and my legal associate and knew of the original arrangement for her employment to commence with them a week or so thereafter.  The mother was legally represented at the time of the disclosure but for reasons that are not apparent, on the next day instructed her solicitor to withdraw or withdrew her solicitor’s instructions. 

4. The mother’s concerns here may well fall into the categories of “association” and “extraneous information”, identified by Deane J in Webb v The Queen referred to above.  However, there is no evidence of the judicial process being contaminated thereby in these proceedings.  The only legitimate concerns relate to an apprehension that the judicial process could in the future be contaminated thereby.

5. Although I made some reference to it when making the disclosure, the mother is not to appreciate the technical framework that creates the problem which gave rise to the disclosure.  As I see it, the potential problem arises from the professional obligations imposed on a solicitor.  A solicitor is bound to apply his or her knowledge and skill for the benefit of a client.  If my legal associate became an employee of the firm of solicitors acting for the father, she could be placed in a position of conflict between her obligation to a client of the firm and her obligation not to disseminate information obtained in the course of her employment with the Court.  In the latter regard the only relevant information would be information as to a developing judgment.  The concern would be that, prior to the conclusion of the trial, the father might thereby have unique access to the developing reasoning process of the trial judge and could have an unfair advantage in presenting evidence or making submissions in his case. 

6. Albeit theoretical, that concern goes to the integrity of the judicial process. 

7. There could be no risk of conflict if the employment started after judgment because upon judgment the judge has finalised his work, is thereafter functus officio and does not need[1] to have any further role.  As I indicated to the parties one could develop an argument that there could be scope for a problem if the employment started after the trial but before final judgment but only if there could be any further communication with the judge on behalf of a party, in the nature of a re-opening of the evidence.

   [1] There is scope for some further involvement of a judge after final judgment in respect of a slip rule application, machinery orders or an application for a stay but those matters could easily be dealt with by another judge or in the case of a stay in aid of an appeal, by the Full Court

8. I am not entirely sure what information the mother thinks could pass between the solicitors and the judge but there could be no mischief associated with the evidence before the Court because the judge can only have access to evidence known to both parties.  

9. A judge is not permitted to recuse himself or herself for no adequate reason.  The concern here is not actual, it is potential and theoretical.  I have little doubt that the circumstances disclosed to the mother have added to her pre-existing cynicism about the father, about his lawyers and perhaps about the Court. 

10. The mother had and has a very poor relationship with the father.  She has no respect for him and indeed, she believes that he is neglectful, disinterested and paradoxically, capable of sexual abuse of their daughter.  The mother is not happy about the involvement of the father’s solicitors in the proceedings.  The mother is aggrieved by the father’s access to funds to fund the litigation compared to her own lack of funding.  In that environment the mother heard a disclosure about a future movement of a legal officer from the chambers of the trial judge to the office of the father’s solicitor.  However and importantly, the mother’s apprehensions do not comprise the relevant standard for recusal. 

11. The fictional observer, properly advised, could not reasonably apprehend a basis for recusal on the presenting facts. As with many employees, employees of the Court are not permitted to misuse private information to which they had access because of their employment with the Commonwealth. For example, s 70 of the Crimes Act 1914 (Cth) and s 121 of the Family Law Act 1975 (Cth) establish offences in relation to information that could be disseminated by Court employees. Judges are bound to determine cases on the evidence before them and are denied access to any extraneous information about the parties or the proceedings. The evidence is limited to evidence that is equally available to all of the parties to the proceedings.

12. The mother’s application for recusal is refused.

Restraint On Lawyers Acting

1. As to the father being restrained from using Watts McCray Lawyers, there is no foundation for the mother’s application.

2. I should note that if a party is required to change solicitors, particularly during the final stages of proceedings, that must cause some delay in the proceedings and could add substantially to the cost of the proceedings, particularly for the party concerned but also for the other parties and the Court.  Neither delay nor cost are in the interests of either parent or their daughter.

3. There is a provision of the Family Law Rules that requires that lawyers cease to act when there is a relevant conflict of interest.  The principle involved was not established by the Rules.  The provision in the Rules is just a statement of the legal position.  The concern arises as a by-product of the professional obligations undertaken by legal representatives.  If it appears that a solicitor would be in a position of conflict as a result of their professional duty to parties who have different interests in proceedings, then the solicitor should cease to act. 

4. A solicitor has an obligation to use his or her knowledge and skill for the benefit of a client.  If the solicitor is in a position whereby he or she has knowledge received as a solicitor from two clients who are in a different interest, it will be impossible to discharge his or her obligation to both clients.  That situation was the subject of decisions in Thevenaz & Thevenaz (1986) FLC 91-748 and McMillan & McMillan (2000) FLC 93-048. The authorities have traversed whether there needs to be any evidence that there was actually a confidence passed between solicitor and client and it has been found that that need not be established, just the risk. Mullane J in a decision of Griffis & Griffis (1991) FLC 92-233 agreed that all that was necessary was that a party swore that confidential information was provided. There can be a risk of transmission of information through the firm. The authorities canvass a number of examples. Even a clerk engaged by the firm who has confidences of one party, where the firm continues to act for another party, has been found to warrant a solicitor ceasing to act. Similarly, where a partner, or a former partner, has access to confidences as a solicitor for the opposing party, the firm has been required to cease to act. It has been found that in relation to family law, greater care is needed to avoid the risk of conflict of interests than would be the case in other jurisdictions. The test is a broad one rather than a narrow one, in other words, the default position is to avoid the risk of such a conflict of interest.

5. Obviously, the examples referred to in those authorities are not directly relevant here.  There can be no credible suggestion in the proceedings before me that the employment of my legal associate by the father’s solicitors would allow those solicitors to receive confidential information about the mother.  How could the legal associate come into possession of such information?  The only legitimate concern here as I apprehend it, is the one to which I have referred above.  It is theoretical and it could only arise on the commencement of the legal associate’s employment with the firm of solicitors representing the father.  If that commencement occurred before the conclusion of the trial, the legal associate may possess knowledge as to the draft reasons for judgment.  An objective observer may consider that in those circumstances there could be a conflict between the obligations of the legal associate to keep confidential any information about the developing judgment and her obligation to the clients of the firm of solicitors.  Whatever considerations might apply, those circumstances have not arisen in relation to this case and because of the decision of the lawyers about the legal associate’s commencement, they will never arise.

6. I made a disclosure to the parties about a potential problem as soon as I appreciated that potential problem.  Part of the reason for the disclosure was to allow the potential problem to be avoided.  Although legally represented at the time, the mother does not seem to appreciate the issues and perhaps bolstered by her antipathy to the father, his solicitors and perhaps her dissatisfaction with the cross-examination of the lay and expert witnesses in the hearing, the disclosure has prompted the mother to seek the cessation of long running proceedings and a new trial. 

7. Again the mother’s application must fail.

8. Finally, the mother seeks that the father’s counsel be restrained from acting.  As I have indicated, I understand the mother’s concerns in respect of the father’s counsel flow directly from her concerns about his solicitors.  I have found no basis for removing the father’s solicitors and therefore there is no basis for excluding the father’s counsel.  The mother’s submissions included a reference to the interaction of the father’s counsel with the counsel for the ICL and although I pressed her about that I could not fathom the nature of her concerns.  As I have indicated, however, the mother expressly confirmed that she did not seek the removal of the ICL’s counsel.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 5 June 2015

Associate: 

Date:  5 June 2015