Solicitors need to mind manners

Towers & Atkins (No.2) [2015] FCCA 3537 (17 December 2015)

Last Updated: 19 January 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

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

Correspondence between solicitors

51. At paragraphs [18] and [19] above I commented unfavourably on the unnecessarily aggressive and discourteous tone of the letter dated 21^st 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 27^th August.
52. Unfortunately, the Father’s solicitors’ soft answer did not turn away the wrath of the Mother’s solicitors^[25], who replied on 4^th September 2015:
    <li “=””>

    …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.

<li “=””>

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.

<li “=””>

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]

53. The Father’s solicitors replied on 8^th September 2015 in a somewhat firm but not impolite tone. In that letter they:
    1. denied that their client had stalked, harassed or intimidated the mother;
    2. reiterated their client’s reasons for seeking the information about the day care centre;
    100. disagreed with the Mother’s solicitors’ interpretation of the child’s attendance at day care as being a “day to day issue”; and
    4. advised that their client was moving to the (omitted); and
    5. advised that their client would not stalk, harass or intimidate the Mother.
54. The Father’s solicitors then went on to re-state their client’s position:
    <li “=””>

    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]

55. In the light of the decision made in these proceedings, the above paragraph may be seen as somewhat prophetic.
56. 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 4^th September, saying:
    <li “=””>

    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]

57. 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.
58. 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.
59. 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.
60. I would make these further points.
61. 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 8^th September was appropriately and courteously phrased.
62. 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.
63. 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.