Yard & Rodd (No. 2)

[2008] FamCA 1173

FAMILY COURT OF AUSTRALIA

YARD & RODD (NO. 2) [2008] FamCA 1173

FAMILY LAW – CHILDREN – application of the rule in Rice v Asplund – final orders made in June 2008 – mother’s subsequent proposed relocation – continuity of child’s views – change in father’s circumstances as foreshadowed in previous hearing – no sufficient change of circumstances – application summarily dismissed

FAMILY LAW – RESTRAINT OF SOLICITOR – solicitor filed an affidavit in support of her client – solicitor ceased to act – whether solicitor’s firm should also cease to act

Family Law Act 1975 (Cth)
Legal Profession (Solicitors) Rules 2007 (ACT)

Rice v Asplund (1979) FLC 90-725
SPL & PLS [2008] FLC 93-363
Miller & Harrington [2008] FamCAFC 150
Marsden v Winch [2008] FamCA 1029

APPLICANT: Mr Yard

RESPONDENT: Ms Rodd

FILE NUMBER: CAF 418 of 2006

DATE DELIVERED: 12 December 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 12 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gill

SOLICITOR FOR THE APPLICANT: Ms Simpson

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Ms Proctor

Orders

1. The father’s application filed on 17 November 2008 is dismissed.

2. The other orders sought in the mother’s response filed on 8 December 2008 are withdrawn and accordingly dismissed.

3. The matter is removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Yard & Rodd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 418 of 2006

MR YARD

Applicant

And

MS RODD

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter the proceedings requiring determination this morning relate to an application for final orders and interim orders filed by Mr Yard (“the father”) in relation to the two children G and H.

Preliminary issue – restraint of solicitor and firm

1. A preliminary issue was raised and I will make my comments and deliver a very brief judgment about the question of whether, as things have unfolded in the course of proceedings, Ms Clifford should cease to act for the father and in a more extended way, whether the firm of which she is a partner should cease to act for the father. 

2. The Legal Profession's (Solicitors) Rules 2007 prescribe – or I suppose more particularly proscribe – in Rule 12 the situation where a practitioner is seeking to appear as an advocate when that practitioner is likely to be a witness in the proceedings. 

3. In this case, as a result of material filed in response to the father’s affidavits, Ms Rodd (“the mother”) detailed a conversation which she reported that G had had with her about a conversation that G had had with Ms Clifford in a social (or at least not a formal) context. 

4. In response to that affidavit, Ms Clifford filed an affidavit setting out in an extensive way the nature of the conversation that she said occurred and how it occurred and as…