Latest Family Court lawyer’s conflict case

Bracewell & Southall [2008] FamCA 687, a 13 August 2008 decision of Justice Bennett of the Family Court sitting in Melbourne is the latest on lawyers’ conflicts of duties in the context of family law — a whole relatively separate sphere of analysis of lawyers’ conflicts.  It seems to me that injunctions restraining lawyers from acting on the third ‘administration of justice’ limb are becoming more common.  This is an example of the trend.  Solicitors who acted for the Department of Human Services in a child protection application against a woman were restrained from subsequently acting for her husband in matrimonial proceedings involving issues in relation to a different child borne not to the husband but to another man. The conclusion read:

’35. This is a difficult case. On the one hand, if I accede to the mother’s application the father will be required to change solicitors through no fault of his own. I am satisfied that this will have financial consequences for him. He will also have to establish a rapport with and acquire confidence in a new firm of lawyers mid-way through proceedings. It is a common enough occurrence but not something undertaken by the father before and he is likely to feel disadvantaged. Indeed, it may be that there are no further solicitors or lawyers available to act for him in Kyabram (although it was not submitted on the father’s behalf that it would be impossible for him to obtain alternative lawyers). He may well have to retain solicitors outside Kyabram. Of course parties must not be permitted to obtain the disqualification of solicitors, or judges for that matter, lightly and otherwise than when the interests of justice require it to occur. On the other hand, viewed objectively it is easy to see how the mother feels aggrieved and, I am satisfied, that she has no prospect of recovering from that grievance. However, it is not a subjective test insofar as it is the perception of a reasonable person observing the proceedings which I must take into account, not the actual feelings of the mother.

36. For me, the most distinguishing feature in this case is that the lawyers’ other client was a body constituted under State legislation responsible for the protection of children in Victoria. The lawyer with which this application [Ms Curtis] is concerned was retained to prosecute the case for the Department of Human Services against the mother. With the onerous obligations of the Department come sources of information and corporate knowledge which is not in the public domain, not accessible to the mother nor readily accessible by anyone else for that matter. Furthermore, it is put, and accepted by counsel for the father, that in the course of Ms Curtis taking instructions from the Department, it is to be expected that she would have had candid and frank discussions with protective workers about matters which could be proved or not proved, which may or may not be put in evidence including, but not limited to, the details of the notifier. It is in respect of taking instructions for the Department that the mother perceives that Ms Curtis has had access to information not accessible to the public or even to herself.

37.  It is submitted by counsel for the father that there is no ‘clear’ or ‘concrete’ evidence in this case of the mother suffering real or unequivocal prejudice as a result of any information obtained by Ms Curtis in the course of her retainer with the Department. The mother, counsel says, cannot point to anything specific which Ms Curtis may know which could be passed on to the father and give him an unfair advantage. I am left, he says, with only inferences as to what may or may not have been imparted to Ms Curtis. In my view, whilst this submission may be correct, in this particular case I consider it appropriate and necessary to act upon the inferences which I can legitimately draw as to what might have been imparted to Ms Curtis in the course of that retainer. It is a corollary of the type of proceedings that we are dealing with that the mother cannot point to any ‘clear’ evidence about what may or may not have been imparted to Ms Curtis. As I have stated above, such information, by virtue of the nature of child protection proceedings, is not available to the mother. To apply a test therefore, whereby the mother would have to point to concrete evidence of prejudice would, in my view, fail to promote the principle that justice must not only be done but be seen to be done in some of the most sensitive of cases heard within the family law courts. This mother would be placed at an unacceptable disadvantage in being required to point to evidence which she simply does not have access to. For these reasons I decline to accede to counsel for the father’s submission that I cannot act upon inferences of prejudice in this case. I can, and in my view must, in order to protect the integrity of the judicial process in this particular case.

38. Ultimately therefore, I decide the matter consistently with the concept of justice being seen to be done and the responsibility of this court to maintain the confidence of the public, including litigants. I am satisfied that a reasonable person observing the proceedings (as opposed to a person in the position of the mother) would apprehend the father has an unfair advantage by virtue of which, in the language of Chisolm J, the cards are stacked against her.

39. Whilst the father’s advantage may be more apparent than real, I am satisfied that to refuse the mother’s application would offend the public interest in preserving confidence in the administration of justice by this court, particularly having regard to the sensitive nature of parenting proceedings. So, notwithstanding the recognised hardship to the father, I will enjoin [Ms Curtis’s firm] from continuing to act for him.’

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