Anonymous barrister acting for a father in custody dispute … Also a family friend of both the parties … Order to stop acting to protect the appearance of justice … More sensitivity, please … From our Ringside Reporter
With his “much more nuanced and personal insight” into the mother’s “personality and character,” his effect on the woman is “paralysing,” extracting from her concessions in the custody battle characterised by “a measure of desperation” on both sides, where allegations of family violence and child abuse are levelled against the barrister’s client and close friend.
This was the situation that Justice Tom Altobelli of the FCFC stepped in to prevent, ruling in favour of an application by the mother to restrain the barrister, anonymised as Mr W, from acting for the father in the dispute.
The estranged couple were close friends with Mr W and his wife. Mr W was described as a “mentor” to Mr Needham, the father in the custody dispute, in “both his personal and professional life”.
The mother, Ms Shao, spent time at Mr W’s wife’s business. The couples holidayed together in New Zealand, and were close enough to seek advice and share details of problems in their relationship, discussing “personal matters” at each others’ homes.
As the relationship fell apart, Mr W took sides, telling the mother that “I can’t go against [Mr Needham] as he has been my friend for many years”.
In January, Mr W extended his emotional support of the father to full-blooded adversarial advocacy, appearing for Needham against the mother in the family court.
Ms Shao told the court of the “paralysing” experience of having Mr W appear against her:
“I could not accept that a man who knew so much about me, my marriage, out difficulties and had advised [Mr Needham] about it could represent him and question me.”
In Altobelli’s consideration of the mother’s application, the recently clarified test in Charisteas was summoned:
“The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.”
Paul Brereton J in Mitchell v Burrell also got a run:
“[The] line is crossed only when the solicitor has a personal stake in the outcome of proceedings or in their conduct …”
For Altobelli, the matter came down to whether the lawyer’s overriding duty was to the court.
In Mr W’s circumstances, the fair-minded, reasonably informed member of the public might not conclude that this could be achieved.
He had professed his loyalty to Mr Needham and “might lack the requisite objectivity to give evidence devoid of any conscious or unconscious bias arising out of that long, close personal and professional relationship”.
In fighting the application made by the mother, Mr W called for the court to make an adverse finding of credit against the mother, based on material before the court.
Justice Altobelli was not impressed:
“The … member of the public would not be oblivious or insensitive to the wife’s perception of the experience of being cross-examined … by counsel who has a much more nuanced and personal insight not just into the issues in dispute but the personality and character of the mother …
“The need for sensitivity and child focus would, I believe, also be apparent.”