Ethics and Negotiation

Whilst researching a paper on ethics and mediation, I came across an interesting decision of the State Administrative Tribunal in Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352.

The decision involved a complaint about a practitioner sent to the Tribunal by the West Australian Legal Practitioners Complaints Committee, that the practitioner was guilty of unprofessional conduct, in that in the course of professional communications with another practitioner, he made representations to the other practitioner which were, to his knowledge, misleading.

By way of background, the Australian Solicitors Conduct Rules ( ASCR ) which commenced to apply in Queensland on 1 June 2012 now provide a framework for ethical conduct by solicitors in their daily practice. A breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action by the relevant regulatory authority which in Queensland is of course the Legal Services Commission ( LSC).

The conduct complained of in the West Australian instance, could well now be subject of a complaint to the LSC if it arose in Queensland.

The interesting aspect of the West Australian decision was that the conduct complained of occurred in the course of settlement negotiations and communication between the two practitioners.

The Tribunal found the practitioner's conduct unprofessional and further found it was no answer to the complaint that the practitioner was merely acting on his client's instructions. In holding as it did, the Tribunal emphasised the importance of practitioner's acting ethically in settlement negotiations stating inter alia as follows :

At paragraph 74, "....just as in litigation a practitioner may not use dishonest or unfair means or tactics to hinder his opponent in the conduct of his case ( D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [111], per McHugh J ), so he ought not do so in other areas of practice. Arguably perhaps for a number of reasons, the proscription against such conduct is more important in settlement negotiations. "

And at paragraph 76, " Honesty, fairness and integrity are also of importance in such negotiations because they are conducted outside the court and are beyond the control which a judge hearing the matter might otherwise exercise over the practitioners involved. Outside the trial process,there is no impartial adjudicator to " find the truth" between the opposing assertions. Dishonest or sharp practice by the practitioner to secure an advantage for his client might go undetected for some considerable time or for all time. A level of trust between the advisers involved is therefore essential".

For the same reasons these principles and cautions would also apply to mediation.Clearly the duties of fairness and honesty owed to the court in relation to the conduct of litigation are also owed to practitioners in other areas of practice.

Bonds for Overseas Travel- Size Does Matter.

In Lau & Feizhou and Anor [2014] FamCA 182, Justice Aldridge sitting in the Sydney registry of the Family Court had to decide whether two young children should be permitted to travel to mainland China, a non-convention country,with their maternal grandmother with whom they resided in Australia.

The real issue for the court was whether or not the children would be returned.

The grandmother had proposed that a bond of $50,000 be lodged in her lawyer's trust account with that sum to be available for use by the father to secure the children's return to Australia should that become necessary.

The grandmother, was a Chinese citizen and deposed to having homes in both Australia and China however did not adduce evidence of her financial position.

The husband's evidence was that, from his observations, the maternal grandmother was very wealthy and had considerable property and business interests in China.

In providing a number of reasons for dismissing the grandmother's application, His Honour held that the value of providing a bond, hinged upon the relationship between the amount of the bond and the amount of the person's property, the court noting as follows:

"

15.Very wealthy people may be prepared to lose significant sums of money if it enables them to achieve a particular end that they seek. Thus, the value of a bond is directly dependent upon the amount of wealth available to the person providing the bond. In this case, there is no way to judge the value of the proposed bond because there is no evidence provided by the maternal grandmother as to her wealth. "

Having regard to the evidence the court could not be satisfied that the proposed bond of $50,000 was adequate.

Draft ruling on tax implications of property settlement transfers

As is oft the case I am a little late in catching up with my Proctor reading.

On reading the May edition I came across an article by Chris Nyst and Rohan McAdam alerting us to a new draft ruling of the ATO foreshadowing "a significant change in the way it will assess for taxation purposes, the distribution of joint matrimonial property pursuant to property proceedings under section 79 of the Family Law Act 1975."

The Family Court can and often does order a private company ( or individual party to the proceedings to cause the private company ) to pay money or transfer property to another party to the proceedings. Currently section 109J of the ITAA exempts such distributions for income tax assessment purposes, but according to Nyst and McAdam, under the new draft ruling, when money or property is paid by a private company or a party to the matrimonial proceedings, or transferred to a shareholder, the payment will be deemed to be an ordinary dividend , assessable as income of the shareholder under section 44 of the ITAA.

Just another reason to bring the accountants in on the terms of settlement to avoid a law claim at a later stage.

The Circle of Care

"Family lawyers want to provide a holistic service to their clients that help them not only get through a divorce and settlement but prepare them for their new circumstances.Some lawyers have referred to this as providing a "circle of care ".  Within the circle of care, there are professionals that can help with the transition to the next stage of life.It comprises their lawyer, who can deal with the legal ramifications of a divorce, but because of the trusted relationship is also able to refer them to psychologists and counsellors, to provide assistance for emotional issues. Their lawyer may then refer them to a new accountant, particularly if their former partner, because of the conflict of interest that might arise, is still using the previous one. Family lawyers recognise that there is need for broad planning advice that can then be drilled down to specific strategies early in the process, they may want to recommend that their clients meet with a financial adviser."

Collins Mann October 2010

Risks in lodging a Caveat.

The dangers of lodging a caveat to protect a purported interest in property are illustrated by the decision of Forrest J in Auricchio & Auricchio [2014] FamCA 240.

In applying Queensland State Law pursuant to the accrued federal jurisdiction of the Family Court, His Honour ordered that the wife forthwith take all necessary steps to cause the Queensland Registrar of Titles to remove the caveat from the title to the subject property and reserved the husband's costs.

The Court held  that the wife had not discharged the necessary evidentiary onus on her to uphold the caveat on the title.

Worth a look if you are contemplating placing a caveat on title to protect a client's interest.

Special Contributions to Property

For an interesting and recent discussion of the notion of "special contributions" see the Full Court decision of Hoffman & Hoffman [2014] FamCAFC 92.

FM Brewster as he then was ordered an equal division of property in a pool of about $10m after the parties' 36 year cohabitation.

In so doing, His Honour declined to accept any principle of special contributions.

The husband had asserted that his special skills and entrepreneurial flair were instrumental in the parties having the property they did at trial.

In dismissing the appeal the Full Court bench of Faulks DCJ, Murphy J and Watts J rejected the notion that there was a binding principle of law relating to "special contributions" or that there was any legitimate guideline in respect of such contributions.

Further that the nature of the category of contributions asserted by the husband was not of itself relevant but must be considered as with all other contributions made by each of the parties.

The Full Court held that "Read as a whole his Honour's reasons reflect a proper consideration of all matters relevant to the exercise of his Honour's wide discretion insofar as it specifically relates to contributions ".

"Cheer Squad"and other Affidavits

 It is not unusual in reported cases for Judges to make observations about aspects of practice.

The case of Baines and Crabal, an interim parenting matter, where judgment was delivered by Judge Scarlett in the Sydney registry on 30 April 2014 is a case in point.

In handing down judgment His Honour included some very worthwhile reflections on the purpose and use of affidavits in the family law jurisdiction which are worth quoting in full as I have done below.

His Honour's comments about the prevalence and weight attributed to what are colloquially referred to as "cheer squad" affidavits are particularly pertinent. 

 

"Affidavits

[38] Apart from the affidavits of the parties themselves, the parties’ lawyers have obtained supporting affidavits from members of the parties’ friends and family members.

[39] A practice has developed in parenting proceedings before this Court filing affidavits of this type, often referred to colloquially as “cheer squad affidavits. These affidavits are often short on facts but replete with supportive opinions, so that they read more like character references than statements of fact.

[40] These affidavits are often justified by reference to s.69ZT of the Family Law Act 1975, provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings. There is a mistaken view among some practitioners that the law of evidence does not apply at all in parenting proceedings. This is a serious error.

[41] Section 69ZT provides that certain Divisions of Part 2.1 of the Evidence Act 1995, Parts 2.2 and 2.3, and Parts 3.2 to 3.8 inclusive do not apply. The section does not exclude the operation of the Evidence Act 1995 in its entirety.

[42] The text book The Law of Affidavits⁸ by John Levingston states at page 7:

In Australia, an affidavit is defined as a written statement made by a person which is sworn or affirmed before a person authorised to administer an oath or affirmation that the contents of the statement are true, as a substitute for oral evidence.

[43] An affidavit must contain statements of fact that are relevant the case of the party who relies on that affidavit. Relevance is the criterion for admissibility, because s.69ZT does not exclude the operation of s.56 of the Evidence Act 1995, which states quite simply:

(1) Except as otherwise provided by this Act, evidence that it relevant in a proceeding is admissible in the proceeding.

 (2) Evidence that is not relevant in the proceeding is not admissible.

[44] Whilst it is true that s.69ZT of the Family Law Act 1975 provides at paragraph (1)(c) that Parts 3.2 to Part 3.8, including Part 3.3 which applies to opinion, does not apply, this should not be taken to mean that a deponent to an affidavit can provide a commentary on the proceedings or set out his or her views on what orders the Court should make. It is equally true that the deponent should not set out in the affidavit his or her innermost thoughts about the situation or how he or she reacted emotionally when hearing about certain events.

[45] Such matters cannot be relevant, and if they are not relevant they are not admissible.

[46] As a general principle, a Court will not place a great deal of weight on an affidavit from a close family member giving a ringing endorsement of the Applicant’s or Respondent’s qualities as a parent. Such affidavits are about as useful as a defendant facing sentencing on a criminal charge relying on a character reference from his or her mother.

[47] It is of no evidentiary value whatsoever to fill an affidavit from a relative with hearsay statements from the Applicant about his case, such as:

Mr Baines has disclosed to me that Ms Crabal’s immediate family did not treat Mr Baines with respect.⁹

Or:

At [Ms Crabal’s] sister’s wedding, Mr Baines was seated at the back table with all the children while every other adult was seated together. Mr Baines told me that he felt he was there as the baby sitter.¹⁰

[48] Endorsements of a party’s qualities in general terms without any detail whatsoever are of little or no evidentiary value, for example:

I believe Mr Baines is able to care for the children full time. He has always been there for the children and I know that he loves, encourages and supports the children. I know that the children mean everything to Mr Baines.¹¹

[49] Documents speak for themselves. The contents of a letter cannot be introduced by statements such as:

Ms Crabal and Mr Baines showed me a letter that Mr Baines had received from his then employer [omitted], I recall the letter said…¹²

[50] Similarly, it is of no evidentiary value for a deponent to provide the Court with his or her innermost thoughts, such as “On a number of occasions I have being (sic) concerned about Mr Baines’s ability to care for the children“ or “I would be concerned for the children’s wellbeing and safety if they were to return to live with Mr Baines“.¹³

[51] Another deponent provided evidence of sorts about what she did not do by stating“Despite my observations I did not contact the Police, as I did not want Mr Baines to further verbally abuse Ms Crabal“ or what she could not imagine:

I cannot imagine the trauma that this may have caused Ms Crabal and in particular the children…¹⁴

[52] When drafting affidavits, practitioners should consider whether the evidence contained in the affidavit will actually add some strength to the case of their client. Evidence does not become stronger just because the party tells someone else who then faithfully repeats it all in an affidavit.

[53] It should be clear that the opinion of an interested party about a situation is usually not relevant, and if evidence is not relevant it is not admissible. Irrelevant evidence will not be saved even by the most generous interpretation of s.69ZT of the Family Law Act 1975."