Schnur & Urbina
[2024] FedCFamC1F 374
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Schnur & Urbina [2024] FedCFamC1F 374
File number(s): MLC 13501 of 2020 Judgment of: JOHNS J Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – referral to the Legal Services Commissioner – where the parenting matter was listed for an eight day final hearing – where the mother’s counsel advised the court at a mention hearing he would appear at trial – where the mother’s counsel appeared on the first day of the final hearing having not read a substantial number of the documents with which he was briefed – where the mother’s counsel failed to appear at subsequent mention hearings – where the mother’s counsel accepted a brief in another court, listed at the same time as the final hearing – where the mother’s counsel had not signed the High Court Register of Practitioners – where the final hearing was unable to proceed Legislation: Federal Circuit and Family Court of Australia Act 2021 s 57
Judiciary Act 1903 s 55B(3)
Legal Profession Uniform Conduct (Barristers) Rules 2015 r 57, 104
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 7 May 2024 Place: Melbourne Counsel for the Applicant: Ms Morkos Solicitor for the Applicant: Aboriginal Family Violence Prevention & Legal Service Counsel for the Respondent: Mr B Solicitor for the Respondent: Rodriquez Family Lawyers Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Perisic Lawyers ORDERS
MLC 13501 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCHNUR
Applicant
AND: MS URBINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS THAT:
1.The National Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) is requested to do all such acts as may be required to refer this matter to the Office of the Legal Services Commissioner (“OLSC”) for investigation with respect to the professional conduct of Mr B of Counsel in relation to his conduct in these proceedings, and in particular with respect to:-
(a)Whether Mr B has signed the High Court Register of Practitioners (as required by s.55B(3) of the Judiciary Act 1903 and s.57 of the Federal Circuit and Family Court of Australia Act 2021);
(b)Whether Mr B has breached his professional obligations under the Legal Profession Uniform Conduct (Barristers) Rules 2015 including but not limited to Rules 11, 57, 58, 104 ad 111 arising from:-
(i)Mr B’s apparent failure to read documents with which he was briefed;
(ii)Mr B’s apparent acceptance of a brief to appear in another Court (Magistrates’ Court of Victoria), notwithstanding his obligation to appear on behalf of his client in this Court on the first day of hearing (29 April 2024);
(iii)Mr B’s failure to appear when the matter was called on at 3.45pm on 29 April 2024 and this day;
and for that purpose cause the following documents to be provided to the OLSC:-
A. A copy of these orders;
B.Transcripts of proceedings on 16 April, 29 April 2024 and 40 April 2024, and this day;
C.A copy of Exhibit 1, being emails from Mr B (3) dated 6 May 2024.
2.I direct that a transcript of this day be obtained and placed on the Court file,
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Schnur & Urbina has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Pursuant to trial directions made in August 2023, the final hearing of the competing parenting applications of the applicant father, Mr Schnur, and the respondent mother, Ms Urbina, was listed to commence on 29 April 2024. Those proceedings relate to the parties’ competing applications as to future parenting arrangements in relation to their only child, X, who is aged eight years.
Pursuant to interim orders made in October 2020, X lives with the applicant father. The mother spends limited day time periods with him. It is the mother’s application that X live with her and spend time with the father. The father opposes that application and maintains that the current arrangements should continue.
By the second day of the trial, being 30 April 2024, it became apparent that the matter could not proceed due to the conduct of the mother’ Counsel, who was briefed by lawyers appointed pursuant to the Commonwealth Family Law Cross-Examination Scheme. That day, I made orders adjourning the final hearing to a date in October 2024 and made orders for any party seeking orders for costs thrown away in relation to the adjourned hearing to make application for the same upon the filing of written submissions.
Otherwise, I adjourned all extant applications for mention before me on 7 May 2024 to consider the question of whether the conduct of Counsel briefed to appear for the mother should be referred to the Legal Services Commissioner.
On 7 May 2024, upon hearing submissions from Counsel representing the father and the Independent Children’s Lawyer (“ICL”), and upon there being no appearance by or on behalf of Counsel briefed for the mother, I made orders requesting that the National Registrar of this Court refer the conduct of the mother’s Counsel to the Office of the Legal Services Commissioner. These are my Reasons for Judgment in relation to those matters.
Counsel for the mother first appeared in this matter at a mention hearing before me on Tuesday 16 April 2024, being 13 days prior to the first day of the final hearing. It was evident at that mention hearing that Counsel had not read the documents with which he was briefed. That this was so, was confirmed by him during the course of his submissions. For example, upon commencing his submissions Counsel immediately alerted the Court to the fact that he had only been briefed to appear on the preceding Friday. He stated as follows:-
[MR B]: I just wanted to make sure I had that. Yes, look, firstly, your Honour, just at the outset I just need to point out that I’ve only become involved in this matter as of very recently. I only just received a memo last Friday.[1]
[1] Transcript 16 April 2024, p. 9 lines 40 – 42.
In response to that submission I reminded Mr B as to his obligations as Counsel and the following exchange occurred:-
HER HONOUR: Well, I don’t know how long you’ve been at the bar, [Mr B], but back in my day – and it’s been a long time since I was at the bar – if you accepted the brief, you did all the things you needed to do to ensure that you were ready at the start of the matter, whether it’s a directions hearing, a case management hearing or a trial.
[MR B]: Well, that would have been just sheerly – that would have just been by practicality impossible because I was provided with a link to 172 documents. I didn’t receive a memo until Friday. I have other work to do. I spent all weekend working.[2]
[2] Transcript 16 April 2024, p. 10 lines 11 – 20.
Later during Counsel’s submissions I sought to impress upon him the significance of the matter, and its importance to the parties in the proceedings and particularly the subject child of the proceedings. The following exchange occurred:-
HER HONOUR: Are you intending to appear at the trial?
[MR B]: Well, I’m briefed for it and, as I should say, your Honour, that I was only briefed because there was no one else available despite the fact that I’m trying to work on a reduced workload. But I appreciate that [Ms Urbina’s] - - -
HER HONOUR: This is a significant matter. It involves the change of – a change of residence of a child who is eight years old. So I can’t think of any more significant matter that could be determined by this court. It’s a sliding door moment for a very young child.
In order to reiterate to the mother’s Counsel the seriousness of the issues, the following exchange then occurred:-
HER HONOUR: Well, if you are to remain in the matter, my expectation is that you will be absolutely up to speed with how matters proceed in this court. This is a parenting matter. It is a serious parenting matter. There are legislative signposts as to how I approach the matter and will deal with it. The rules make specific provision for how these matters are to be conducted. And you need to familiarise yourself with all of that material before you get to first base, because it’s no excuse to say that, “I’ve only received the brief days or weeks ago.”
[MR B]: As far as the hearing date is concerned, there’s ample time between now and then for myself to - - -
HER HONOUR: Well, you’ve got to get familiar not just with the material but with the court processes and how this matter runs…[3]
[3] Transcript 16 April 2024, p. 14 lines 14 – 26.
As a result of the submissions made by the mother’s Counsel at that mention hearing, it was understood that he was briefed to, and would appear, at the trial on behalf of his client. It was also confirmed by him during that mention hearing that he considered he had “ample time” to properly prepare the matter.
Contrary to the representations made by the mother’s Counsel, on 29 April 2024, the morning of the first day of the hearing, Counsel for the mother sought to limit the terms of his brief, submitting that he was briefed to appear on behalf of the mother but that it was his understanding that he was only briefed for the cross-examination of the father. Curiously, Counsel for the mother made the following submission as to the terms of his brief:-
[MR B]: So the issue is that it was made clear to me from the outset by my instructor that I was briefed for cross-examination only of the father.[4]
[4] Transcript 29 April 2024, p. 2 lines 40 – 41.
At the previous mention hearing, Counsel for the mother raised no issue as to there being any limitation on his brief to appear.
During the ensuing discussion as to the terms of Counsel’s retainer and what work would need to be undertaken to ensure his capacity to conduct the trial on behalf of this client, it emerged that he had not read all of the documents with which he was briefed, notwithstanding his earlier representations to the Court that he had ample time to undertake that work. That this was so was confirmed during the following exchange:-
HER HONOUR: How much more time? I mean, obviously, you’ve read the materials because you’ve had to prepare cross-examination.
[MR B]: No. I’ve only – your Honour, because I was briefed only for cross‑examination, I’ve - - -
HER HONOUR: Yes. But you’re here to cross-examine the father.
[MR B]: Yes.
HER HONOUR: So in order to do that – in order to prepare your cross-examination, you must have read the material.
[MR B]: Well, I haven’t read all the material, and that was the point - - -
HER HONOUR: Well, how could that be, because – what material do you say you haven’t read that’s relied upon?
[MR B]: Well, a vast amount of material, your Honour…[5]
[5] Transcript 29 April 2024, p. 3 lines 14 – 41.
During the course of discussion, it emerged that there were numerous significant documents that Counsel for the mother had not read. For example, whilst he had read the addendum report prepared by the Family Report Writer, he had not read the two earlier Family Reports prepared by her.
The mother’s Counsel conceded that he had only “perused” significant documents, including:-
·The father’s Outline of Case document;
·The Further Amended Application for Final Orders filed on behalf of the father; and
·The father’s affidavit in reply.
That this was so in circumstances where he maintained that he was briefed to cross-examine the father but had not read the whole of the father’s evidence-in-chief, was deeply concerning.[6]
[6] Transcript 29 April 2024, p. 16 lines 12 – 39.
As a result of Counsel’s acknowledgement that he had not read numerous documents in his brief, I hold significant concerns that he has failed to comply with his professional obligations as to the preparation of the matter.
During a further exchange with the mother’s Counsel, it emerged that he held a brief to appear at a mention hearing in the Magistrates’ Court on a bail application at 2pm on the first day of the final hearing in this matter. In relation to that issue, the following discussion occurred:-
HER HONOUR: Maybe in other jurisdictions, [Mr B]. And this is where you’re perhaps struggling or floundering a little. In this jurisdiction, particularly in matters of this nature, counsel ordinarily go over and above to assist the court but more importantly to assist the parties… what you’re arguing about is an eight-year old boy, and that needs to be at the cornerstone of every submission made. I know you’re an advocate for the mother, but what you’re arguing about is an eight-year old boy, and this week is a sliding door moment in his life, because the decision that I make will impact everything else that happens.
So I know what I was doing yesterday, because there’s a lot of material in this case. So I know what I was doing. And if you weren’t doing the same thing, even if you’re only cross-examining, then I’m really troubled, because there’s an eight-year old boy, and it isn’t too hard, even if you reflect back to when you were an eight-year old boy. So what I’m going to do is stand the matter down. I’m going to give you an opportunity to review your e-brief so we can work out what else you need to read. I want you to attend to the minute that has been circulating so that we can understand what your client’s position is in relation to what everybody else says, so that we know what we’re arguing about. And maybe the arguments aren’t as big as they look to be when one has a first read of the material. How long do you think you’ll need to do all of those things?
[MR B]: Well, I think, probably I should just say at the outset that I do have to appear in a brief mention in the Magistrates’ Court just down the road.
HER HONOUR: Well, no. You won’t be doing that today.
[MR B]: Well, I have a client on bail. It has been stood down until 2 pm.
HER HONOUR: Well, that’s too bad. You will find someone else. You had better make a phone call.
[MR B]: There’s no one else, your Honour.
HER HONOUR: You will have to make a phone call to someone in your clerk’s office to get someone else down there, because you’re not released from this matter. All right. We still (sic) down so that you can make those inquiries. Who is your clerk?
[MR B]: […], your Honour.
HER HONOUR: All right. Ring [them]. It’s a big list. All right. I’m going to stand down until 11 o’clock, and I will hear back from you all at 11 o’clock. Thank you.[7]
[7] Transcript 29 April 2024, p. 14 lines 4 – 46.
Again, the fact that the mother’s Counsel had accepted a brief to appear in another court on the first day of hearing in a trial listed for eight days and in circumstances where, even by his own admission, he was briefed to cross-examine the father who is the applicant in the proceedings and would be required for cross-examination on the first day of trial, is a matter of significant concern to the Court. That conduct would appear to be a complete disregard of Counsel’s professional obligations to his client and his obligations as an officer of the Court.
Due to the necessity for the mother’s Counsel to read his brief, the matter was stood-down until 10:00am on 30 April 2024. Otherwise, I informed the parties that I was available should the matter need to be relisted for mention that afternoon.
Later that day, Counsel for the Independent Children’s Lawyer gave notice to Chambers that she required the matter to be re-listed for mention that afternoon. As a result of that notice, an email was forwarded by my Associate to all Counsel briefed in the matter, listing the matter for mention at 3:45pm that day. That hearing commenced at 3:56pm on 29 April 2024. When the matter was called on, Counsel for the mother failed to appear. During that hearing, Counsel for the ICL confirmed that the mother’s Counsel did attend court at approximately 3:40pm, dressed in casual clothes and stated that he would not appear that afternoon in circumstances where the matter had been stood-down until 10:00am the following day. Again, the failure of the mother’s Counsel to appear at that mention hearing displays an apparent disregard as to Counsel’s obligations to his client and to the Court.
That issue was compounded when Mr B failed to appear at the further hearing of the matter listed on 7 May 2024. On the evening prior to that hearing, the mother’s Counsel caused three emails to be sent to my Associate and copied to the practitioners for the other parties. In the first of those emails, Counsel indicated his intention not to appear at the hearing on 7 May 2024 and stated:-
I have determined that the FCFCOA is not a safe working environment for barristers with ASD. This conclusion stems from the impact of conduct in this matter which constituted such an assault on the vulnerabilities of people with ASD that I eventually had a meltdown, lost focus and shut down. I now associate the building with trauma and am unable to set foot inside it for the foreseeable future.
During the course of the hearing before me, at no time did Counsel for the mother alert the Court to any personal issue that would impact his capacity to discharge his professional obligations in the conduct of the mother’s case. Again, in light of the statements made in his email to the Court, in my view significant concerns are raised as to the capacity of the mother’s Counsel to appear as Counsel.
Pursuant to s 55B(3) of the Judiciary Act 1903 a person is not entitled to practise as a barrister or solicitor in a federal court unless his or her name appears in the Register of Practitioners maintained by the High Court of Australia.
Further, s 57 of the Federal Circuit and Family Court of Australia Act 2021 provides as follows:-
A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 1) is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.
As a result of the concerns held by the Court as to the conduct of the mother’s Counsel, I caused enquiries to be made of the High Court Register of Practitioners to ascertain whether the mother’s Counsel has signed the High Court Roll. The response to that enquiry indicated that he had not. I had intended to raise that matter with the mother’s Counsel upon the resumption of the hearing. However, due to his non-appearance that day the mother’s Counsel has not been afforded the opportunity to respond to that matter.
I hold significant concerns that the mother’s Counsel has breached his obligations under the Judiciary Act 1903, the Federal Circuit and Family Court of Australia Act 2021 and the Legal Profession Uniform Conduct (Barristers) Rules 2015, having regard to:-
·the failure of the mother’s Counsel to read the documents with which he was briefed;[8]
·his failure to appear at the mention hearings before me on 29 April and 7 May 2024;
·the fact that he held a brief to appear in another court on the first day of the trial before me;[9] and
·my concern that he may not have standing to appear in this Court on the basis that he has not signed the High Court Register of Practitioners.[10]
[8] Legal Profession Uniform Conduct (Barristers) Rules 2015, Rule 57.
[9] Legal Profession Uniform Conduct (Barristers) Rules 2015, Rule 104.
[10] Judiciary Act 1903, s 55B(3); Federal Circuit and Family Court of Australia Act 2021, s 57.
Accordingly, I will make orders requesting that the National Judicial Registrar of this Court refer the mother’s Counsel’s conduct to the Office of the Legal Services Commissioner for investigation. I will also direct that the transcripts of the proceedings, the correspondence received from the mother’s Counsel and these Reasons for Judgment be provided to the office of the Legal Services Commissioner.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 31 May 2024
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