Sanchez and Lee
[2013] FCCA 630
•12 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANCHEZ & LEE | [2013] FCCA 630 |
| Catchwords: FAMILY LAW – Whether the mother’s legal representative should be restrained from acting for the mother in a parenting dispute – where the legal representative is the mother’s father-in-law – where the legal representative is the paternal step-grandfather of the two children who are the subject of the proceedings – where the father had reported the legal practitioner to the Legal Services Commission for contacting him directly when he had legal representatives – where the legal representative has taken civil proceedings for defamation against the father for events arising out of circumstances which may be relevant in the family law proceedings – where possibility of legal representative being a witness in the family law proceedings and the defamation proceedings – where mother may be witness in defamation proceedings – Held that “a fair minded, reasonably informed member of the public” could not in all the circumstances find that Mr S could continue to act for the mother – Mr S restrained from acting as the mother’s legal representative. |
| Legislation: Australian Solicitors’ Conduct Rules 2012 |
| Geelong School Supples Proprietary Limited & Dean [2006] FCA 1404 Kallinicos & Another [2005] NSWSC 1181 at [76] Mitchell & Burell (2008) NSWSC 772 at [20] and [21] Kennon & Anor & The Public Trustee of the ACT [2008] FamCA 919 at [24] and [25] Selen & Selen and Anor [2009] FamCA 309 at [45] to [56]. Gianarelli & Wraith (1988) 65 CLR 543 at 555 |
| Applicant: | MS SANCHEZ |
| Respondent: | MR LEE |
| File Number: | BRC 345 of 2010 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 7 June 2013 |
| Date of Last Submission: | 7 June 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 12 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr B |
| Solicitors for the Applicant: | Mr S & Co |
| Counsel for the Respondent: | Mr Hamwood |
| Solicitors for the Respondent: | Frews Solicitors |
ORDERS
That Mr S and any Solicitor in the employ of Mr S & Company be restrained from acting or continuing to act on behalf of the Mother,
Ms Sanchez, in these proceedings.
That this matter be adjourned for mention on 16 July 2013 at 9.00am in the Federal Circuit Court of Australia at Brisbane.
That the Father file and serve any application for costs within 14 days of the date hereof and the Mother respond to that application within 14 days thereafter with such application be dealt with in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Sanchez & Lee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 345 of 2010
| MS SANCHEZ |
Applicant
And
| MR LEE |
Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
The parties are involved in a parenting dispute regarding their two children, [X] aged 11 and [Y] aged 8.
At the first return date the father made an application for the mother’s solicitor to be restrained from acting and continuing to act for the mother.
Issues
The issue I must then consider is whether Mr S of Mr S & Co, Solicitors can continue to act for the mother.
In considering this issue I have had regard to:
a)the material as marked on the Court file;
b)the exhibits;
c)the oral and written submissions of the parties;
d)Australian Solicitors’ Conduct Rules 2012 as issued by the Queensland Law Society; and
e)the relevant case law on restraining lawyers from acting for parties.
Findings of fact are made on the balance of probabilities, having regard to the evidence, and in what follows statements of fact constitute findings of fact.
Before considering the issue it is useful to capture the agreed facts:
a)The parties married in 1998, separated in 2009 and divorced in mid-2010.
b)The parties have two children from the relationship, [X] aged 11 and [Y] aged 8.
c)The mother remarried in May 2012 and her new husband is Mr J.
d)Mr J is the son of Mr S.
e)Mr S is the principal of the firm Mr S & Co.
f)The mother filed parenting proceedings in April 2013.
g)The firm of solicitors representing the mother is Mr S & Co.
h)The solicitor who has conducted proceedings on behalf of the mother is Mr S.
i)The mother’s application raises several issues including, but not limited to:
i)the father’s alleged drug use;
ii)the father’s alleged harassment of the mother and the new husband;
iii)the father’s alleged abusive behaviour towards the mother;
iv)the father’s alleged involvement of the children in the adult issues;
v)the father’s alleged restrictions on the children contacting the mother when the children are in the father’s care;
vi)the father’s alleged failure to provide [X] with her required medication when [X] is in his care; and
vii)the father’s alleged denigration of the mother and the new husband to the children.
j)Prior to the commencement of proceedings, Mr S & Co allegedly corresponded directly with the father.
k)As a consequence of this direct contact, the father lodged a complaint with the Legal Services Commission, which was then subsequently investigated by the Queensland Law Society.
l)In the complaint dated 15 February 2013, the father raised concerns about Mr S acting for his daughter-in-law and how Mr S had contacted the father directly when he was legally represented.
m)In Mr S’s response to the complaint, dated 20 February 2013, he states that the firm “totally rejects and frankly it is absurd to suggest that the writer is in any way prohibited from acting on behalf of his daughter-in-law”.
n)It appears that nothing to date has eventuated from the father’s complaint with the Legal Services Commission.
o)On 4 June 2013 Mr S, in his own name, commenced civil proceedings in the District Court Brisbane against the father for $250,000 for damages for defamation.
p)In the Statement of Claim, Mr S refers to three incidents that make up the alleged defamation:
i)An email sent by the father to the mother on 31 January 2013 where he refers to Mr S as “Danny Denuto from [location omitted]”.
ii)An incident on 12 May 2013 where the father allegedly called out, in the presence of the mother, her new husband and the children, a comment about “Dennis Denuto”.
iii)An incident later in the day on 12 May 2013 where the father allegedly made a comment to the mother, her new husband, the children and other persons, regarding “your father, Dennis Denuto”.
q)The Statement of Claim explains how “Dennis Denuto” is a fictional character, who I am informed is a character from the Australian movie, The Castle.
It is in the context of these relevant facts that I must now give consideration to the issue.
Should Mr S be restrained from acting for the mother as her legal representative?
The father seeks an injunction due to what he claims is a combination of many factors which make it impossible for Mr S to be able to act for and represent the mother as well as carry out his role as an officer to the Court.
The father states that the relevant factors are:
a)The relationship of Mr S as father-in-law to the mother and step-grandfather to the children who are the subject of the proceedings.
b)Mr S’s involvement in the complaint made by the father to the Legal Services Commission.
c)The defamation proceedings that have recently been commenced by Mr S against the father in the District Court.
d)The involvement of the mother as a potential witness to the defamation proceedings.
e)The involvement of Mr S as a potential witness in the both the defamation proceedings and in the family law proceedings.
f)The impact of the dynamics of the situation on the preparation of a family report and the subsequent progress of the family law proceedings when running parallel with the proceedings for defamation with Mr S involved in each of the legal matters.
Mr S disputes the application and seeks for it to be dismissed.
Mr S argues that he has always acted in a proper manner for the mother and that his relationship with the mother as father-in-law and as the plaintiff in civil proceedings against the father will not, in any way, impact on his ability to continue to act for the mother in the family law proceedings.
The law
Before considering this issue, reference must be had to the law.
The family law legislation is understandably silent on this issue.
Rule 3 of the Australian Solicitors Conduct Rules of 2012 provide that “A solicitor’s duty to the Court and the administration of justice is paramount, and prevails to the extent of inconsistency of any other duty.”
Rule 4 provides that “A solicitor must also act in the best interests of a client in any matter in which the solicitor represents the client, and avoid any compromise to their integrity and professional independence.”
The rules are otherwise silent on whether it is appropriate to act for a party who is a family member or where a legal practitioner is otherwise involved in Court proceedings with the other party which may result in their being a witness to the proceedings.
The extensive case law, however, in this area does provide some guidance.
As indicated by Young J in the Federal Court decision of Geelong School Supples Proprietary Limited & Dean [2006] FCA 1404 under the heading “Relevant Legal Principles”, there are three possible grounds for restraining a legal practitioner from acting for a particular party, namely:
a)danger of misuse of confidential information;
b)breach of fiduciary duty of loyalty not to act against a client or former client in the same or closely related matter; or
c)inherent jurisdiction of the Court to control conduct of legal practitioners of the Court.
Certainly this fact scenario does not relate to the first two grounds.
Further most case law relates to the issue of confidential information when having acted previously for the other party.
As to the circumstances that arise in this matter, consideration then must be had as to when the Court would exercise their inherent jurisdiction to interfere in a legal representative acting for a party.
It is clear from the case law that decisions to restrain a legal representative are not taken lightly and great caution must be exercised by the Court before making such an order.
The objective test be applied in determining whether or not a legal representative should be restrained from acting was confirmed by Brereton J after a thorough analysis of the law in Kallinicos & Another [2005] NSWSC 1181 at [76].
The test is “Whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner would be prevented from acting in the interests of the protection of the integrity of the judicial process and due administration of justice including the appearance of justice.”
In this matter it is not of concern that Mr S has chosen to represent his daughter-in-law in her family law proceedings.
This is, according to case law or rules and regulations, not inappropriate, although it may be seen as an unwise and questionable judgment on Mr S’s behalf.
Nor is it of concern that Mr S has been the subject of a formal complaint which may put in question some of his work practices.
But what is of concern is that by bringing a defamation action against the father, which arises out of incidents which relate to the family law proceedings where the mother, her new husband, the children and Mr S are all potential witnesses, against a backdrop of some seriously alleged issues with the father, then how could Mr S be seen by a “fair minded, reasonably informed member of the public” as being able carry out his role as an officer of the Court in an objective manner in these proceedings?
Further the potential of legal representatives being witnesses to Court proceedings involving their clients have been the subject of various Court decisions including family law decisions.
Brereton J in Mitchell & Burell (2008) NSWSC 772 at [20] and [21] discusses how a legal practitioner being a material witness, in itself, would not necessarily justify a restraining order but that the outcome may be different if the legal practitioner has a personal stake in the outcome or it reflects on his conduct.
Faulk J, as His Honour was then known in Kennon & Anor & The Public Trustee of the ACT [2008] FamCA 919 at [24] and [25] spoke of there being concern for the legal practitioner continuing to act if they are potentially a witness and where their “objectivity” in acting for a party may be put into question.
The issue of restraining legal practitioners, including where a legal practitioner is a witness, was explored by Judicial Registrar Johnson, as His Honour was then known, at [45] to [56] in Selen & Selen and Anor [2009] FamCA 309 where it was concluded that if a legal practitioner who may be a potential witness through their conduct and/or circumstances “give rise to a fair and reasonable perception” that the legal practitioner “may not exercise the necessary independent judgment as an officer of the Court”, a Court may conclude that the legal practitioner be restrained, even for a client who desires that that legal practitioner continue their service.
The question then that arises for Mr S is whether, as the mother’s legal reprehensive, actively involved in Court proceedings against the father where he himself could be a witness in both the defamation action and the family law proceedings and as a plaintiff in civil proceedings, and the mother also being a potential witness as well as the new husband, this conflicts with what is described by Mason J in Gianarelli & Wraith (1988) 65 CLR 543 at 555 as a legal practitioner’s “overriding duty” in their obligations to the Court.
Against this the Court must weigh up the mother being deprived of the right to the solicitor of her own choice.
Conclusion
In conclusion, taking into account the obligations imposed by the Australian Solicitors Conduct Rules of 2012, the objective test, the various case law, and bearing in mind that the exercise of the inherent jurisdiction must be undertaken cautiously by the court in restraining a legal practitioner from acting for a party, and weighing all of this against the circumstances in this matter, I find that it is appropriate for an order to be made for Mr S to be restrained from acting and continuing to act for the mother.
I make my findings based on the following:
a)“A fair minded, reasonably informed member of the public” could not conclude that a legal practitioner suing the father for defamation in relation to behaviour which arises out of family law proceedings and which, in the legal practitioner’s view, attacks the legal practitioner on a professional level, could effectively carry out his duty to act in the best interests of the mother in her family law proceedings.
b)A continuation of Mr S in the proceedings place both the mother and the father in a compromising position which may negatively impact on their ability to negotiate, mediate and work towards an effective co-parenting arrangement for [X] and [Y], who are central to the substantive issues.
c)For the father, his level of resentment towards Mr S not only as the legal representative for the mother, but as the step-grandfather to the children and the plaintiff in a monetary civil proceeding against the father, will no doubt impact on the father’s ability to reach agreement with the mother at mediation and further conduct himself in an open and constructive way during any family report interviews.
d)For the mother, her enmeshment in the father-in-law’s issues with the father may equally interfere in her ability to mediate, and may impact on her openness to be child focused for the purposes of negotiations, and in providing information and cooperating in the family report interviews.
e)Indirectly, the mother may also feel pressured with the defamation action running parallel with her own, and with Mr S being actively involved in both actions.
f)It is clear from the material already filed that the children, unfortunately, have been immersed not only in the parental conflict regarding their future live with and spend time arrangements but in the conflict arising between the father and the new husband, and the father and Mr S.
g)This places the children in a difficult position which may, at their ages, impact on their ability to speak openly and candidly to the report writer at the family report interviews as to their views and wishes if Mr S was still involved as the solicitor for the mother.
h)The preparation of a family report would be a difficult task to undertake if Mr S continued to act for the mother because, as the step-grandfather, he may be considered as a necessary person to be engaged in the family report process.
i)For Mr S to continue in his role as legal representative to the mother would provide the mother with a disservice, as it will undoubtedly be questionable as to whether the advice given by the legal representative is the advice of an independent, impartial officer of the Court, or the advice of a litigant involved in defamation proceedings against the father, or the advice of a protective, concerned family member.
j)Whilst the mother has engaged the services of Mr S leading up to the filing of proceedings, I find that it is not too late as these proceedings are in their infancy, for there to be a change of lawyer.
k)Further, the parties are considering mediation and the future preparation of a family report which may, at best, resolve the issues or at least narrow the issues.
I therefore find that this is a situation where, for both parties concerned, and more importantly for the children to obtain the best possible outcome and for the Court process to proceed in a fair and just manner, that Mr S cannot be allowed to continue to act for the mother.
This restraint also extends to any other solicitors in Mr S’s employ.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge L. Turner.
Associate:
Date: 25 June 2013
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