Restraint application dismissed

Restraint application dismissed

Worth & Worth [2016] FamCA 4 (14 January 2016)

Last Updated: 21 January 2016


[2016] FamCA 4

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – Where the father seeks an order that the mother be restrained from continuing to instruct her solicitor and her solicitor’s firm to represent her in the proceedings – application dismissed.

FAMILY LAW – COSTS – Circumstances justifying order – Where the father’s application to restrain the mother’s lawyer from acting was wholly unsuccessful.

FAMILY LAW – COSTS – Circumstances justifying order – Where the mother made an application for a stay of an order and that application was dismissed – Where the mother made an application for review but withdrew the application before it was heard – Where the costs of those applications were reserved to this hearing – Where the father seeks costs on an indemnity basis – Circumstances do not justify a costs order on an indemnity basis.

Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181; (2005) 64 NSWLR 561
Kohan & Kohan (1993) FLC 92-340
Millhouse & Mullens [2015] FamCA 754
Millhouse & Mullens (No 2) [2015] FamCA 1015
Naczek & Dowler [2011] FamCAFC 179
Romano & June [2013] FamCA 901
Ms Worth
Mr Worth
14 January 2016
Forrest J
12 January 2016

The following is annotated. For full case:

The factual background to the restraint application

  1. The parents are in high conflict about the appropriate co-parenting of their two children. On 20 August 2015, the Principal Registrar of this Court made interim parenting orders providing for the children to spend time with the father. The mother, unhappy with those orders, immediately filed an application for a review of the Principal Registrar’s decision and an application for a stay of those orders. Mr Rosen wrote to the father’s solicitor informing him that the mother would not be complying with the Principal Registrar’s orders.
  1. The Principal Registrar’s orders of 20 August 2015 provided for the child, Y, to spend unsupervised time with the father.
  1. In support of the mother’s application for a review of the Principal Registrar’s decision, an affidavit sworn by the mother was filed on 31 August 2015 that was prepared by Mr Rosen. At paragraph 3 of that affidavit, the mother deposed as follows:

… I have spoken with [K Contact Centre] and they have informed me and I verily do believe that they would not recommend that Mr [Worth] have unsupervised time with the child [Y].

  1. The Independent Children’s Lawyer then obtained a report from the owner/manager of K Contact Centre, a private and commercial children’s contact centre, in which that owner/manager responded to the following question from the ICL:

Have you or any staff members made any recommendations to either parent about whether or not the time [with [Y]] should be supervised?

  1. The owner/manager’s answer was a simple “no”. Having regard to the deposition of the mother quoted in paragraph 12 above, that answer excited the interest and attention of the father and his solicitor.
  1. On 15 September 2015, the Principal Registrar dismissed the mother’s application for a stay of her orders of 20 August 2015 and reserved questions of the father’s costs and the ICL’s costs to the Judge who would be hearing the application for review of the Principal Registrar’s decision of 20 August 2015. That application was listed for hearing before me on 16 November 2015.
  1. In the meantime, Mr Laws for the father requested that Mr Rosen provide him with particulars of the discussion that the mother asserted she had with someone at K Contact Centre that she had deposed to in her affidavit of 31 August.
  1. Mr Rosen wrote to Mr Laws on 2 October 2015 saying:

Our client has provided to us the identity of the person from [K Contact Centre] who provided to her the information contained in paragraph 3 of her Affidavit dated 31 August, 2015. However we are at this stage instructed not to provide that information to you as our client is extremely concerned your client … attempting to intimidate and harass that person as he has already previously done with other health professionals involved with the children.

  1. Mr Laws then offered his own undertaking to Mr Rosen not to disclose the identity of the K Contact Centre staff member, with whom the mother said she spoke, to his client when he asked Mr Rosen again if he would provide the particulars that had been requested. Again, Mr Rosen did not provide them.
  1. Mr Laws then informed Mr Rosen that if he did not supply the requested particulars by the end of the day on 6 October 2015 that a “disqualification” application would be made against Mr Rosen without further notice.
  1. Mr Rosen did not provide the information of the identity of the staff member and the application for restraint was commenced.
  1. Mr Laws conceded that at no point before the hearing of the application for restraint has the father served a request to answer specific questions on the mother pursuant to Part 13.3 of the Rules, in which he asks her to tell him in affidavit the identity of the staff member with whom she spoke. He conceded that the father had brought no application for an order that the mother disclose the identity of the person with whom she spoke, either on affidavit or otherwise, and he conceded that the Court had never directed or ordered Mr Rosen to reveal to the Court, or the father, the identity of the person with whom his client had instructed him she spoke. Of course, that last observation raises other questions as to whether or not Mr Rosen could be required by Court order to reveal such information given to him by his client in the course of the solicitor-client relationship which I do not consider need to be answered in the immediate context.
  1. have been commenced that they do not intend to honour the obligation to make full and frank disclosure during any subsequent proceedings that might be commenced.

29. I said in Millhouse & Mullens [2015] FamCA 754 at [38]:

… tensions may sometimes emerge between duties a practitioner owes to the client and those owed to the Court in the cut and thrust of the solicitor-client relationship. I also accept that the authorities make it clear that in any conflict of fulfilment of the duties owed by a practitioner, the practitioner’s duty to the Court takes priority. However, consistent with the requirement for cautious exercise of this supervisory jurisdiction, absent a finding such as the solicitor having a clear and direct financial interest in the fruits of the litigation (other than an expectation of being paid), or a finding that a particular piece of advice or a particular action of the practitioner demonstrates a prioritising of the duty to the client over the duty to the Court, restraint should not, in my opinion, be imposed on a solicitor on purely speculative grounds. In this respect, I add that I reject the submission of counsel for the wife that a solicitor, consistent with his or duties to the Court, including those that arise pursuant to the Rules, must cease acting for a litigant simply because that litigant refuses to follow the solicitor’s advice … [my emphasis for the purposes of these reasons]

  1. In this particular case, the burden of proof is on the father who seeks an order restraining Mr Rosen from continuing to act for the mother. It is for him to adduce the evidence that persuades the Court that the solicitor he seeks to have restrained is clearly prioritising his duty to his client over his duty to the Court. In the absence of evidence of the confidential conversations between Mr Rosen and his client, the Court would be engaging in pure speculation in this case to attribute or not attribute certain actions or advice to Mr Rosen consistent or inconsistent with the discharge of his duty to the Court. For example, the Court cannot simply make a finding, without evidence, that Mr Rosen advised his client that she will not have to disclose the information at any time, or that he did not advise her that if ordered to by the Court she will have to disclose the information and that she might face cost consequences if she has to be ordered to as opposed to just instructing Mr Rosen to disclose the information by correspondence as he has been asked to do.
  1. That Mr Rosen did not adduce any evidence in support of the opposition to the application for restraint is no answer to this evidentiary dilemma the father faces. It is his application and he carries the evidentiary burden of proof. In my judgment, he has fallen short of meeting it as required to be successful in this application.
  1. Finally, on the point, I am not satisfied that the drawing of the mother’s affidavit of 31 August 2015, particularly paragraph 3 thereof, by Mr Rosen, evidences a prioritising of his duty to his client over his duty to the Court that necessitates restraining him from continuing to act. The wording of the subject paragraph could well have been better, but again, absent evidence of what he asked the client and what advice he gave to her in and around that task of preparing that affidavit, the Court cannot speculatively impute some professional misconduct or subversion of his duty to the Court that justifies restraint.
  1. I am satisfied, on the facts of this case, that the “fair minded, reasonably informed member of the public” might very well ask the same question that I did of the father’s solicitor at the hearing, namely as to why the procedure provided for in the Rules for requesting answers to specific questions or an application for an order that the mother disclose the identity of the staff member in an affidavit had not been pursued in lieu of the application for restraint of the mother’s solicitor. I do not consider that same “member of the public” would conclude that the proper administration of justice requires Mr Rosen to be now restrained from acting for the mother in the interests of the protection of the judicial process.
  1. I will dismiss the application, but as I informed the parties at the hearing, I will direct that any further applications of the father in which he seeks orders against the mother in respect of the disclosure of the information about the identity of the K Contact Centre staff member with whom she asserts she spoke, are to be listed before me for hearing, in so far as that is practicable. I consider that entirely appropriate given I am now cognisant of the relevant facts surrounding the matter.


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