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Lawyer misused court process

12 May 2020

[All names are fictitious]  

A lawyer has been fined $4,000 for filing an application for a parenting order on a without notice basis in circumstances where she could not have been satisfied the application complied with the requirements of the Family Court Act 1980 and the Family Court Rules 2002.

When imposing the fine, a lawyers standards committee said it considered the level of fine was “modest when considering the gravity of the conduct, relating as it did to the misuse of a court process”.

The committee also noted that the lawyer, Berkshire, had been the subject of a number of previous disciplinary findings.

Ms A and Mr B were parents of a young child. After they separated, Ms A moved to another city, with Mr B’s approval, while he did not move.

Ms A then instructed Berkshire for legal advice on her separation. On Ms A’s behalf, Berkshire filed a without notice application under the Care of Children Act 2004 for an interim parenting order.

In the application, Ms A expressed a fear that Mr B would “retain” the child during or after an impending visit to the city where she now lived to have contact with the child.

Interim without notice parenting order declined

The Family Court Judge declined to make an interim parenting order on a without notice basis and directed that the application proceed on notice. The Judge referred the parties to Family Dispute Resolution (FDR).

Ms A and Mr B attended FDR and reached an agreement about contact arrangements for the next two years. The mediator documented what he understood to be the agreed parenting arrangements.

Ms A considered the mediator’s report did not fully and accurately reflect her understanding of what had been agreed at FDR. Berkshire then prepared a consent memorandum, setting out Ms A’s position on contact, and sent it to Mr B.

Meanwhile Ms A and Mr B agreed between themselves that Ms A would travel with the child to the city where Mr B lived so that he could have contact around the time of his birthday.

Berkshire then indicated that unless a written agreement was in place, unsupervised contact – including the planned contact in Mr B’s location – could not occur.

Mr B signed the consent memorandum but said he had done it under duress because of “the written threat that he signs the memorandum or is outright denied further contact” with the child.

Berkshire was unwilling to accept the consent memorandum on the grounds that Mr B considered he had signed it under duress.

Mr B had concerns about the professional conduct of Berkshire and made a formal complaint to the Lawyers Complaints Service.

“Clear abuse” of without notice process

When considering the complaint, the standards committee noted that the Family Court Judge said the without notice application “represents a clear abuse of the without notice process”.

“The strongest aspect of the application,” the Judge said, “is the applicant’s statement that she is ‘concerned he may try and retain the child’. There is not a skerrick of evidence that the respondent will retain the child or has made any statements that he would attempt to do that.”

The committee said it wished to reassure Berkshire that it did not consider it was bound by the Judge’s views but would reach its own conclusion after considering the evidence before it.

A parenting order can only be made without notice, the committee said, where the risk of making an order on notice might entail serious injury or undue hardship, or risk to the personal safety of the applicant, or any child of the applicant’s family, or both.

“There are onerous obligations on lawyers providing a certificate in connection with a without notice application.”

The committee said it considered it “significant” that Mr B had consented to the child moving cities with Ms A and to the child being enrolled in day care.

“Facebook messages exchanged by Ms [A] and Mr [B] suggest that they were on relatively amicable terms during the period following Ms [A]’s relocation.

“Mr [B] had even consented to Ms [A] travelling to Australia with [the child]. Mr [B] appears to have been accommodating with Ms [A].”

No suggestion of intention to retain child

The committee also noted that “there was no suggestion, in the amicable messages the pair exchanged, that Mr [B] or Mr [B]’s family intended to ‘retain’ [the child]”.

The application “ought never to have been made on a without notice basis. [Berkshire] should have encouraged Ms [A] to engage in negotiations with Mr [B], and if those failed, to participate in FDR.”

In providing a certificate for the without notice application, Berkshire had effectively misled the court. Her conduct was “very concerning from a professional standards perspective”.

The conduct breached Berkshire’s professional obligations under rules 2, 2.1, 2.3, 13, 13.1 and 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. It was unsatisfactory conduct.

Mr B also alleged that Berkshire threatened that Ms A would not participate in a planned contact unless he signed the memorandum agreement. Even after he signed the agreement, Mr B said, the planned contact did not take place.

The committee said it rejected Berkshire’s submission that it was not unusual in COCA matters which were subject to negotiations for no contact to occur until there is an agreement.

The stance Berkshire adopted towards contact was “troubling from a professional standards perspective”, the committee said.

Berkshire had acted in an “unnecessarily adversarial and inflammatory manner” by suggesting an order was necessary for the planned contact to occur. However, the committee acknowledged that this was a “finely balanced case” and concluded that no useful disciplinary purpose would be served by making a further finding against Berkshire as concerns withholding contact.

As well as the $4,000 fine, the committee ordered Berkshire to apologise to Mr B in writing and to pay $1,000 costs.

Last updated on the 12th May 2020