TOWERS & ATKINS (No.2)

Case •

[2015] FCCA 3537

•

17 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOWERS & ATKINS (No.2) [2015] FCCA 3537

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary interim parenting orders – application for injunction – where mother has not informed father of location of child’s day-care or treating medical practitioner – equal shared parental responsibility – effect of parenting order that provides for shared parental responsibility – insufficient evidence to justify injunction under Family Law Act 1975 (Cth), s.68B.

PRACTICE AND PROCEDURE – Aggressive and discourteous correspondence from one party’s solicitor to another – impolite letters to other legal practitioners a matter for disapproval by the Court.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65DAC, 65DAE, 68B
Cases cited:
Towers & Atkins [2015] FCCA 1742
Applicant: MR TOWERS
Respondent: MS ATKINS
File Number: SYC 2775 of 2014
Judgment of: Judge Scarlett
Hearing date: 14 December 2015
Date of Last Submission: 14 December 2015
Delivered at: Sydney
Delivered on: 17 December 2015

REPRESENTATION

Applicant: In person
Solicitor for the Respondent: Ms Ho
Solicitors for the Respondent: Fox & Staniland Lawyers

ORDERS

UNTIL FURTHER ORDER

  1. Within seven (7) days of the date of these Orders, the Respondent Mother is to provide to the Father in writing the following information:

    (a)The name and address of the day-care facility or pre-school in which the child X born (omitted) 2012 is enrolled;

    (b)The days of the week and the times when the child attends day-care or pre-school;

    (c)Confirmation that the Mother has provided to the day-care or pre-school the Father’s contact telephone numbers for use in case or emergency; and

    (d)The names and addresses and telephone numbers of all of X’s treating medical practitioners.

  2. The Response to an Application in a Case filed on 4 November 2015 is dismissed.

  3. The substantive proceedings are adjourned to 15 March 2016 for further mention at 10:00 am.

IT IS NOTED that publication of this judgment under the pseudonym Towers & Atkins (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2775 of 2014

MR TOWERS

Applicant

And

MS ATKINS

Respondent

REASONS FOR JUDGMENT

Application in a Case

  1. This is an Application in a Case by the Father of a boy called X, who is aged three years and eleven months, for orders that the Mother provide details of the child’s day care or preschool and any doctor or other medical or other health professional whom the child has attended since the Mother moved with the child to the New South Wales (omitted).

  2. The Mother opposes these Orders and, in her Response to the Father’s Application in a Case, seeks injunctive orders under the provisions of s.68B of the Family Law Act 1975 (Cth), restraining the Father from going within 100 metres of her home address (should he find out what it is) or any day-care centre or preschool which the child may attend.

Background

  1. The parties entered into a de facto relationship in 2010 and separated on 19th January 2014. There is one child of the relationship, X, who was born on (omitted) 2012. He lives with the Mother and spends time with the Father from 7:30am to 4:30pm every Friday and 10:00am to 5:00pm every Sunday[1].

    [1] Affidavit of  Ms Atkins 7.12.2015 at paragraphs [4]-[6]

  2. On 17th June 2015, after an interim parenting hearing, the Court made Orders until further order that:

    (1)The applicant father and the Respondent mother are to have equal shared parental responsibility for the child X born (omitted) 2012.

    (2)    The child X is to live with the mother.

    (3)The child X is to spend time with the father as follows:

    (a)     from 8:00 am to 4:00 pm each Friday;

    (b)     from 10:00 am to 6:00 pm each Sunday;

    (c)from 10:00 am to 2:00 pm on the child’s birthday in each year;

    (d)from 10:00 am to 2:00 pm on the father’s birthday in each year; and

    (e)from 3:00 pm on Christmas Day to 3:00 pm on Boxing Day in 2015 and odd numbered years thereafter and from 3:00 pm on Christmas Eve to 3:00 pm on Christmas Day in 2016 and even numbered years thereafter; and

    (f)   at such other times as the parties shall agree.

    (4)    The immediately preceding Orders are suspended on:

    (a)     Mothers’ Day; and

    (b)     the mother’s birthday.

    (5)The mother is restrained from relocating the residence of the child X from the Sydney Metropolitan Area prior to 31 July 2015.

    (6)From and after 1 August 2015 the mother is permitted to relocate the residence of the child X to a place on the NSW (omitted) no further North than the (omitted) local government area.

    (7)UNTIL FURTHER ORDER the Applicant MR TOWERS born (omitted) 1971 and the Respondent MS ATKINS born (omitted) 1971 their servants and/or agents are hereby restrained from removing the child X (a male) born (omitted) 2012 from the Commonwealth of Australia AND IT IS REQUESTED THAT the Australian Federal Police give effect to this Order by placing the name of the child X on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 16 June 2017 or such earlier date as the Court orders its removal.

    (8)The parties are restrained by injunction from using any form of physical chastisement or discipline on the child X.

    (9)The parties are restrained by injunction from using any abusive or critical language towards each other in the presence or hearing of the child X.[2]

    [2] Towers & Atkins [2015] FCCA 1742

  3. Orders were also made listing an interim hearing on financial issues for hearing on 7th July 2015. Those matters were resolved by consent Orders.

  4. In the relatively short time after the parenting Orders were made, the Mother did in fact move from the Sydney Metropolitan Area to an address on the (omitted). She did not disclose that address to the Father.

  5. On 4th September 2015 the Father moved from his address in Sydney to an address in (omitted), on the (omitted), where he deposed that he lives in rental accommodation.[3]

    [3] Affidavit of Mr Towers 14.9.2015 at paragraph [21]

  6. On 15th September 2015 the Father, through his then solicitors, filed his Application in a Case. He filed a Notice of Address for Service in Court on 4th November 2015, giving notice that he was henceforth acting in person.     

The Parties’ Proposals

  1. By his Application in a Case filed on 15th September 2015, the Father seeks orders that:

    2. That within 24 hours of the making of these Orders the Mother provide details, in writing, to the Father and his legal representatives, of the following:

    2.1The name and address of the day-care/pre-school(s) X (hereinafter “X”) is enrolled in and attending;

    2.2The days and times X is enrolled to attend day-care/pre-school each week;

    2.3 (This order, seeking that the mother should provide the child’s residential address, was not pressed at the hearing);

    2.4Confirmation that the Mother has provided any day-care/pre-school X attends with the Father’s contact details; and

    2.5Name, address and telephone number of any doctor/medical professional that X has attended upon since moving to the (omitted).

    3. That within 24 hours of the making of these Orders the mother provide to the Father and his legal representatives any enrolment form(s) for any day-care/pre-school(s) X attends.

    4.  (An application for costs was not pressed).

  2. By her Response to an Application in a Case filed on 4th November 2015, the Mother seeks orders:

    1. That pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the Mother and the child, that[4] the Father be restrained from:

    [4] sic

    a.  Attending at the Mother’s residential address or approaching or remaining within 100 metres of this address (should the Father become aware of this address, noting that the Mother has not provided her residential address to the Father);

    b.  Attending at the daycare centre or preschool at which the child attends or approaching or remaining within 100 metres of  the location of the daycare or preschool, noting that the Mother has not provided these details to the Father);

    c.  Attending at or approaching or remaining within 100 metres of any residence or daycare facility or preschool at which the child may from time to time reside or attend; and

    d.  Approaching the Mother, except for the purpose of changeover at the commencement and conclusion of the Father’s time with the child or during court events relating to these proceedings in the Federal Circuit Court or Family Court of Australia.

    2. That the Father not interfere with the child’s enrolment or attendance at daycare or preschool and that the Father be restrained from delivering the child to or collecting the child from daycare or preschool, except with the consent of the Mother.

    3. That the Mother provide a copy of these Orders to the daycare centre or preschool at which the child attends.

    4. (This Order, seeking a variation of the Father’s time with the child, was not pressed at the hearing).

    5. That the Application in a Case filed by the Father on 15 September 2015 be dismissed.

    6. That the Father pay the Mother’s costs of and incidental to this Application.

Agreed or uncontested relevant facts

  1. The child has lived with the Mother since the parties separated and has spent time with the Father as a result of the Orders made on 17th June 2015. The parties have each moved to the (omitted). The Mother has not disclosed her residential address to the Father. The Father has disclosed his residential address in his affidavit in support of his application.

The relevant law in regard to parenting applications

  1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

    a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

    b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

    c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

    d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

    e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

  2. All of those matters have been considered, insofar as they are relevant.

Injunctions under section 68B of the Family Law Act

  1. Section 68B of the Family Law Act provides:

    68B(1)  If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

    (a)an injunction for the personal protection of the child; or

    (b)     an injunction for the personal protection of:

    (i)     a parent of the child; or

    (ii)    a person with whom the child is to live under a parenting order; or

    (iii)   a person with whom a child is to spend time under a parenting order; or

    (iv)   a person with whom the child is to communicate under a parenting order; or

    (v)     a person who has parental responsibility for the child; or

    (c)an injunction restraining a person from entering or remaining in:

    (i)         a place of residence,  employment or education of the child; or

    (ii)    a specified area that remains a place of a kind referred to in subparagraph (i); or

    (d)an injunction restraining a person from entering or remaining in:

    (i)         a place of residence, employment or education of a person referred to in paragraph (b); or

    (ii)    a specified area that contains a place of a kind referred to in subparagraph (i).

    68B(2)  A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

    68B(3)  An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

  2. The learned authors of Australian Family Law[5] summarise the principles relating to the exercise of the Court’s discretion to grant an injunction as:

    …under s 68B(1) it is necessary that the order or injunction be appropriate for the welfare of the child. However the child’s interests need not be treated as the paramount consideration. While in many cases they might be of great, even overwhelming importance, it is open to the court to take into account other interests, against which the child’s interests may not necessarily prevail.[6]

    [5] Lexis Nexis Butterworths, Chisholm et al

    [6] Australian Family Law, Vol 1, page 1322.2

Evidence and Submissions

  1. The Father relied on his affidavit of 14th September 2015, in which he deposed that on 6th August 2015 his (then) solicitors received a letter from the Mother’s solicitors advising that she would be relocating to the (omitted) as of 11th August 2015. The letter did not advise the Father of the Mother’s new address but stated that changeover would take place at the (omitted) railway station.[7]

    [7] Affidavit of Mr Towers 14.9.2015 at [5]

  2. Since then, the Father has been seeking details of the child’s new address and child care centre but the mother has refused to provide those details. He went on to depose:

    8.Ms Atkins did not allow me any input whatsoever about which day-care or pre-school X is attending, despite us having shared parental responsibility for X.

    9.Ms Atkins has unilaterally enrolled X in a day care centre/pre-school and has refused to provide the details of the centre/school to me. I consider X’s care and schooling to be a major decision which Ms Atkins and I should make together.

    …

    11.I have no capacity to talk with X’s teachers or participate in X’s attendance at day-care/pre-school.[8]

    [8] Ibid at [8],[9] & [11]

  3. The Father persisted in seeking this information and on 21st August 2015 his then solicitors received a letter from the Mother’s solicitors saying, inter alia:

    …Your client is now increasing the parties’ legal fees by instructing you to send aggressive correspondence[9]that merely repeats his requests and ignores our client’s response.

    Our client clearly informed your client via email that she would not provide her address or the details of X’s day-care centre due to your client’s aggressive behaviour towards her. This behaviour has included stalking, harassment and intimidation. Our client’s concern remains that your client is disrespectful of her and tries to bully and intimidate her. The fact that your client instructed you to write a letter threatening to litigate only reinforces our client’s concerns.

    [9] The letters from the father’s then solicitors of 13 and 20 August 2015, copies of which are annexed to his affidavit, whilst firm, do not appear to be at all aggressive in their tone

    …

    It is unacceptable for your client to ignore our client’s requests for privacy and to resort to threats of litigation. Would you seriously advise your client to make an Interim Application on this issue?

    For your client to suggest that it is appropriate to litigate on such a matter reflects poorly on your client’s attitude towards our client and the child. It also suggests that your client does not have the capacity to engage in a co-parenting relationship, and is unable (and certainly not willing) to communicate with our client in a respectful, child-focused manner. 

    We will vigorously defend any such Application by your client, and we will rely on this letter and on the emails between our respective clients. We will also seek that your client pays our costs on an indemnity basis. We will rely on this letter and your letter dated 13 August 2015 accordingly.[10]

    [10] Annexure “D” to the affidavit of Mr Towers of 14.9.2015

  4. I regard the above letter from the Mother’s solicitors to be unnecessarily aggressive and discourteous.

  5. By comparison, the reply by Father’s solicitors on 27th August 2015, firmly but courteously stated their client’s position:

    It is appropriate for us to write to you when requests for information have been refused on a personal level between our clients.

    We draw your attention to the Orders made by Judge Scarlett on 17 June 2015.

    Order 1 provides for the mother and father to have equal shared parental responsibility for X.

    It is unfortunate that a parent with joint parental responsibility does not even know what Day Care Facility/Facilities his child is attending, let alone having no capacity to visit the Day Care Centre, talk with the staff or participate in the child’s attendance at the Day Care Centre/Pre-school. It is also important for our client to talk to X about how he is enjoying Day Care/Pre School, his teachers and the friends he has made since moving to the (omitted).

    The particular secrecy speaks of the mother’s behaviour in these proceedings to date.

    We are raising these matters not to litigate by correspondence, but to point out the position you/your client is adopting is not in X’s best interests nor appropriate, particularly where there is an Order for joint parental responsibility.

    We urge you to reconsider the matters outlined in our letter of 21 August 2015, failing which we will tender this letter, our letter of 20 August 2015 and ask the Court for appropriate Orders.

    We trust this will not be necessary and look forward to hearing from you.[11]

    [11] Annexure “E” to affidavit of Mr Towers 14.9.2015

  6. The Father went on to depose at paragraph [20] of his affidavit that since the Mother and child moved to the (omitted) he has not been provided with any details of any local doctors or other medical professionals upon whom the child has attended.

  7. The Mother relied on her affidavit of 7th December 2015. In that affidavit she stated that one of the reasons why she moved to the (omitted) “also in response to Mr Towers’ aggressive and intimidating behaviour towards me during the relationship and after we separated. I did not feel comfortable living in the same area as Mr Towers.[12] 

    [12] Affidavit of Ms Atkins 7.12.2015 at [7]

  8. The Mother went on to depose that:

    a)She was concerned that the Father had moved to the (omitted) to intimidate her; and

    b)Since the Father has moved to the (omitted), she does not feel comfortable doing her shopping or other tasks in the local area on Saturdays, and she either stays at home with the child or takes him on a day trip out of the area.

  9. The Mother also deposed that:

    a)She has formed the view that the Father does not wish to “participate constructively” in making a decision about the child’s schooling;[13]

    [13] Affidavit of Ms Atkins 7.12.2015 at [20]

    b)She has taken two months’ sick leave and would produce the medical certificate at the hearing;[14]

    c)She has arranged for three of her close friends to be emergency contacts for the child’s daycare;[15]

    d)On the days when the child attends daycare the Father is at work in Sydney and would not therefore be able to collect the child without significant delay;[16]

    e)During the time that the parties lived together the Father’s behaviour towards her was controlling and manipulative;[17]

    f)On 7th August 2014 the Local Court made a final Apprehended Violence Order against the Father, which expired on 7th May 2015;[18]

    g)The Father has continued to treat her “in a confrontational and aggressive way in front of X;[19]

    h)She has formed the view that the Father “lacks insight into how his behaviour and way of communicating is confrontational and aggressive;[20]

    i)If the Father obtains the details of the child’s daycare, he will be able to stalk, intimidate and harass her;[21]

    j)The Father does not need the details of the daycare “as X only attends daycare during his time with me”;[22]

    k)“If Mr Towers knew the details of X’s daycare and was also in contact with the staff, I would no longer feel comfortable discussing X’s needs and behaviour, and I am concerned that Mr Towers would undermine me and cause conflict”.[23]

    [14] Ibid at [22]

    [15] Ibid at [24]

    [16] Ibid at [25]

    [17] Ibid at [27]

    [18] Ibid at [35]

    [19] Ibid at [36]

    [20] Ibid at [46]

    [21] Ibid at [53]

    [22] Ibid at [54]

    [23] Affidavit of Ms Atkins 7.12.2015 at [77]

  1. The Mother stated that changeovers now occur at (omitted) railway station and at the (omitted) McDonalds. She deposed:

    Since we began changeovers at (omitted) station, Mr Towers now attends on time, is rarely late, and his behaviour towards me has been less aggressive and intimidating. I feel more comfortable attending changeover. I have also observed that X is more comfortable when we do changeovers in a public place.[24]

    [24] Ibid at [89]

  2. The Mother also set out at paragraph [100] of her affidavit a list of the child’s health issues. She made no mention of any medical practitioner or other health professional whom the child may have seen since moving to the (omitted) in August.

  3. The Mother’s solicitor, Ms Ho, tendered a medical certificate dated 23rd November 2015 from a doctor whose name, address and telephone number had been redacted. The certificate stated that the Mother:

    …”is unfit for work from 26/11/2015 to 30/01/2016 because of situational crisis within the family.”

  4. Ms Ho also tendered a copy of the Police Occurrence Report of 28th May 2014 that led to the application for an Apprehended Domestic Violence Order.

  5. Ms Ho submitted that the Mother did not wish to disclose the details of any treating doctor for the child because of her fear that the Father would attend the doctor’s surgery whilst she was there, or in the vicinity. She also told the Court that the Mother did not make an application to extend the operation of the Apprehended Domestic Violence Order that expired on 7th May 2015.

Conclusions

  1. The Father’s case is essentially set out in his solicitor’s letter of 27th August 2015. His case is that an Order was made, after an interim hearing, that the parties should have equal shared parental responsibility for the child. Despite this, the Mother made a unilateral decision about enrolling the child in a day care facility and:

    a)has not disclosed the location of the day care; and

    b)has not recorded the Father’s name and particulars as a contact person.

  2. In addition, the Mother has not provided to the Father any details of any treating medical practitioner or other health professional.

  3. In each case, the Mother’s explanations have been:

    a)the Father does not need to know, because these things all relate to times when the child is in her care; and

    b)if the Father were to find out he would use this information to intimidate or attempt to control or manipulate her.

  4. The second explanation is supported by evidence so flimsy as to be unpersuasive.

  5. The first explanation is ludicrous. It remains the case that the parties have, by Order of this Court, equal shared parental responsibility for the child. The Mother’s actions fly directly in the face of this Order, as the Father’s former solicitors attempted to point out in their correspondence  with the Mother’s solicitors.

  6. Section 65DAC of the Family Law Act sets out the effect of parenting orders that provide for shared parental responsibility:

    65DAC(1) This section applies if, under a parenting order:

    (a)2 or more persons are to share parental responsibility for a child; and

    (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    65DAC(2) The order is taken to require the decision to be made jointly by those persons.

    65DAC(3) The order is to be taken to require each of those persons:

    (a)to consult the other person in relation to the decision to be made about that issue; and

    (b)to make a genuine effort to come to a joint decision about that issue.

    65DAC(4) (Not relevant).

  7. Clearly, the decision to enrol a child in day care or pre-school, or the decision that the child should become a patient of a particular medical practitioner or medical practice, are both matters that fall within the ambit of the matters that must be joint decisions made by the parents who have equal shared parental responsibility for the child. The Mother in this case has not only acted unilaterally but has actively sought to hide these details from the Father, who has a right to know because he has equal shared parental responsibility for the child.

  8. The Mother’s explanation that the Father does not need to know these details because they do not happen “on his watch”, so to speak, is unacceptable. The fact that the Father has not even been placed on the list of people to be contacted by the daycare centre in case of an emergency shows a serious disregard for the very concept of equal shared parental responsibility.

  9. True it is that the Mother’s Response to an Application in a Case filed on 11th March 2015 sought an order that she should have sole parental responsibility for the child, but the fact is that, after an interim hearing, this Court made an Order on 17th June 2015 that the parties were to have equal shared parental responsibility for the child.

  10. Neither party appealed against that decision.

  11. The Father’s Application in a Case must succeed. I propose to order that, within 7 days, the Mother is to provide the information about the child’s day care or pre-school and his treating medical practitioners that the Father seeks.

  12. The Mother’s application for a section 68B injunction contained in her Response to the Father’s Application in a Case will not succeed. The evidence offered in support of her case that it is appropriate for the welfare of the child that an injunction should be made restraining the Father from attending or approaching the child’s daycare or pre-school or from approaching the Mother except for the purpose of changeover or attending at court events is flimsy at best. It is so weak that it will not support the Court exercising its discretion to grant such an injunction.

  13. The Mother relied in part on allegations that the Father’s behaviour in 2014 and earlier was controlling, manipulative and intimidating. Why then, did she not seek an injunction under s.68B at the interim hearing that took place on 10th June 2015?

  14. The Mother provided evidence that the Local Court made an Apprehended Domestic Violence Order against the Father on 7th August 2014. The Order expired on 7th May 2015, prior to the interim hearing. If the Mother still had reasonable grounds to fear, and in fact feared, controlling, manipulative and intimidating behaviour by the Father, why did she not apply to the Local Court prior to 7th May to extend the term of the Apprehended Domestic Violence Order?

  15. The Mother did neither of those things when she had the opportunity to do so.

  16. The evidence relied upon by the Mother of the Father’s more recent behaviour does little, if anything, to support her case. She knew the Father had moved to the (omitted). He told her he had, and he provided his address. She knew where he was living. He chose not to press his claim for her to provide details of the address where she now lives with the child.

  17. It is the Mother’s evidence that since changeovers have started taking place at (omitted) railway station, arrangements have apparently gone relatively smoothly and without incident. There is already an Order in force, made on 17th June 2015, that:

    (9)The parties are restrained by injunction from using any abusive or critical language towards each other in the presence or hearing of the child X.

  18. It is reasonable to assume from the Mother’s evidence about changeovers that the Father is already complying with that Order.

  19. The Mother tendered a medical certificate dated 23rd November 2015 from an anonymous medical practitioner that she would be unfit for work from 26th November 2015 until 30th January 2016 inclusive “because of situational crisis within the family”. I am dubious, to say the least, that “situational crisis within the family” is a medical condition at all.

  20. With respect to the medical practitioner concerned, I give that certificate no weight.

  21. The fact is that the Mother’s application for an injunction under s.68B of the Family Law Act is unsupported by any real evidence and is without merit. It will be dismissed in its entirety.

Correspondence between solicitors

  1. At paragraphs [18] and [19] above I commented unfavourably on the unnecessarily aggressive and discourteous tone of the letter dated 21st August 2015 from the Mother’s solicitors to the Father’s then solicitors, which was not met with the same discourtesy in the Father’s solicitors’ letter in reply of 27th August.

  2. Unfortunately, the Father’s solicitors’ soft answer did not turn away the wrath of the Mother’s solicitors[25], who replied on 4th September 2015:

    …It seems that you have overlooked our client’s reasons for declining to provide the details of X’s day-care centre to your client. We note that you do not deny that your client has stalked, harassed and intimidated our client. We take this to be an admission by your client as to his conduct towards our client.

    If your client had asked our client for the information in a polite, constructive and non-confrontational manner (and perhaps explained his reasons for making the request) our client may have considered providing it.

    X’s attendance at day-care during his time with our client is a day to day issue. It is not a major long term issue, for which the requirement for the parties to endeavour to make a joint decision would apply. We presume that you have read section 65DAE of the Family Law Act.[26]

    [25] “a soft answer turns away wrath, but a harsh word stirs up anger” Proverbs 15:1, New King James Version 1982

    [26] Annexure “F” to the affidavit of Mr Towers 14.9.2015

  3. The Father’s solicitors replied on 8th September 2015 in a somewhat firm but not impolite tone. In that letter they:

    a)denied that their client had stalked, harassed or intimidated the mother;

    b)reiterated their client’s reasons for seeking the information about the day care centre;

    c)disagreed with the Mother’s solicitors’ interpretation of the child’s attendance at day care as being a “day to day issue”; and

    d)advised that their client was moving to the (omitted); and

    e)advised that their client would not stalk, harass or intimidate the Mother.

  4. The Father’s solicitors then went on to re-state their client’s position:

    In relation to the final paragraph of your letter, we remind you that there is no basis upon which your client may prevent ours from having involvement in X’s attendance at preschool given the order in relation to shared parental responsibility, the case law and legislation.[27]

    [27] Annexure “G” to the affidavit of Mr Towers of 14.9.2015

  5. In the light of the decision made in these proceedings, the above paragraph may be seen as somewhat prophetic.

  6. The Father’s solicitors finished their letter with a paragraph in which they took exception to the tone and content of the Mother’s solicitors of 4th September, saying:

    In this matter, the Court has been somewhat critical of some “robust” exchanges between practitioners. Your comment about s.65DAE is unhelpful and impolite. You can be assured of our familiarity with the legislation. We urge you to refrain from such observations.[28]

    [28] Ibid

  7. The rebuke contained in the above passage was entirely deserved, in my view. The tone and content of the correspondence from the Mother’s solicitors to the Father’s solicitors was, as I said previously, discourteous and impolite. It is unacceptable for solicitors to write to their professional colleagues in this way.

  8. Lawyers may certainly advocate their client’s case with vigour, but they should not descend to rudeness or snide remarks directed against their professional colleagues. The sneering tone of the comment by the Mother’s solicitors that “we presume that you have read section 65DAE of the Family Law Act” is just rude. It is unacceptable.

  9. It is the task of the lawyer to argue his or her client’s case in a reasoned and dispassionate manner, without descending into personal invective against the lawyers appearing for the other party. Vitriolic letters of this nature have no place in the practice of the law.

  10. I would make these further points.

  11. First, the solicitors for the Father at no time descended into aggressive and discourteous correspondence with their opponents. Their letters remained polite but firm and the rebuke contained in the final paragraph of their letter of 8th September was appropriately and courteously phrased.

  12. Second, whilst Ms Ho appeared for the Mother in this matter, I am quite satisfied that she is not the author of any of these letters that has caused the Court such concern. The author appears to be another lawyer from that firm.     

  13. The firm of solicitors that acted for the Mother is a well-established firm of solicitors on Sydney’s North Shore. Lawyers from that practice have appeared before me in this Court and other Courts on numerous occasions over my career on the Bench since 1988. It is a matter of regret that discourteous and unprofessional correspondence of this nature should have emanated from a firm that has previously enjoyed such a good reputation.                           

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 14 January 2016


Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Injunction

  • Procedural Fairness

  • Jurisdiction

  • Remedies

  • Costs

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TOWERS & ATKINS [2015] FCCA 1742