The Council of the Law Society of New South Wales v. Dimitriou [2009] NSWADT 249 (29 September 2009)

Last Updated: 28 October 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
The Council of the Law Society of New South Wales v. Dimitriou [2009] NSWADT 249


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
The Council of the Law Society of New South Wales

RESPONDENT
Georgina Dimitriou



FILE NUMBERS:
082020

HEARING DATES:
29, 30 April and 1 May 2009

SUBMISSIONS CLOSED:
22 July 2009



DATE OF DECISION:
29 September 2009

BEFORE:
Molloy G - Judicial MemberRiordan M - Judicial MemberHayes E - Non-Judicial Member





LEGISLATION CITED:
Legal Profession Act 2004

CASES CITED:
Allinson v. General Council of Medical Education and Registration [1984] 1KB 750
Dalziel v. Belladonna [2009] FamCA 254
The Law Society of NSW v. Foreman(No. 2) (1994) 34 NSWLR 404
NSW Bar Association v. Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
Prothonotary v. McCaffery [2004] NSWCA 470
Silas v. Barry [2009] FMCAfam 448

TEXTS CITED:


APPLICATION:
Disciplinary Action, Alleged misconduct by a Lay Associate, Section 18 LPA 2004

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
C A Webster, barrister
RESPONDENT
J W Conomos, solicitor


ORDERS:
1.The application for an order under Legal Professional Act 2004 Section 18(2) prohibiting any law practice from employing or paying the Respondent in connection with the legal practice engaged in by the law practice, without approval under Section 17, is dismissed
2.Unless either party moves the Tribunal within 28 days of the date of this decision in or to the effect that a costs order should be made, the order of the Tribunal will be that there be no order as to costs.


Reasons for Decision:

REASONS FOR DECISION

Anonymisation

1 The complaints against the Respondent embraced a number of allegations arising out of various family relationships. The first set of allegations involved a mother, a number of children, the children’s father, the children’s grandparents (ie the parents of their mother), and the grandmother of the mother. The allegations also involved a well-known barrister (who was not himself criticised), involved serious allegations of violence and sexual activity and considerable conflicts in the evidence.

2 Importantly, all of these allegations/events took place in circumstances where no proceedings were commenced in any court for relief and, indeed, the mother became reconciled, subsequently returned to the father and they had two further children.

3 In the second set of allegations these involved a lady who seemed to wish to carry out most of the legal work herself and did not seem inclined to pursue her proper property entitlements (at least on the evidence before the Tribunal), ultimately engaged another firm (but only on a temporary basis) and then herself personally conducted the property hearing before the Family Court.

4 The Family Court Act 1975, Section 121, imposes certain restrictions on the publication of court proceedings. This Section clearly does not apply to the first set of complaints, simply because no proceedings were ever commenced, the parties having become reconciled. However, the Section applies in relation to the second set of complaints but, by sub-section (9) the restrictions on publications do not apply in relation to "persons concerned in proceedings in any court ... or the communication of any pleading, transcript of evidence or other document to a body that is responsible for disciplining members of the legal profession ... or persons concerned in disciplinary proceedings ...".

5 It is the view of this Tribunal that in all the circumstances, and in particular the first set of allegations (relating, as they do, to reconciled parties, innocent children and allegations of violence and sexual activities in circumstances where the parties have been reconciled) that firstly, this decision ought to be anonymized and secondly, it is not in the interests of those witnesses or other persons involved, and does not add any weight to this decision, to refer in detail to the allegations; and the Tribunal will endeavour to deal with the complaints and the facts in as sensitive a manner as is possible but consistent with its duty.

The Persons Involved

6 Consistent with the above, the Tribunal proposes in the course of this decision to refer to the various persons referred to in the first set of allegations (described herein as "the children issues") in the following manner

a) The mother of the children: "the mother".

b) The children: "the children".

c) The father of the children: "the father".

d) The parents of the mother: "the parents"/ "the female parent"/ "the male parent".

e) The grandmother of the mother: "the grandmother".

and in the second set of allegations (described herein as "the property issues"):

f) the wife: "the wife".

g) the husband: "the husband".

7 The Tribunal also does not propose to refer to countries of origin, countries where property was situate or addresses of persons involved, and will endeavour to present this decision in a neutral fashion in an endeavour not to identify the various persons involved.

The Hearing

8 The Tribunal in particular wishes to extend its thanks to both counsel and those instructing them for the spirit in which the hearing was carried out, the politeness extended to the various witnesses and for the manner in which the hearing was conducted. The evidence given was often quite traumatic, several of the witnesses "broke down" in the course of giving evidence and there were consequent adjournments. The Tribunal has been greatly assisted also by the careful written submissions by the lawyers for the parties.

The Respondent

9 The complaints against the Respondent are made in an Amended Application primarily seeking an order under Legal Profession Act 2004 Section 18(2) "prohibiting any law practice from employing or paying the Respondent in connection with the legal practice engaged in by the law practice, without approval under Section 17". It was alleged that the Respondent "is not a fit and proper person to be employed or paid in connection with any legal practice, and/or has been guilty of conduct which, if the Respondent were an Australian legal practitioner, would have constituted professional misconduct".

10 The Amended Application describes the Respondent as being "the Associate", presumably by reference to the definition of those words as appears in the Legal Profession Act 2004. The definition appears in Section 7(1) – relevantly (for the purposes of this decision) Section 7(1)(c) as being "an employee of, or a person paid in connection, with the law practice who is not an Australian legal practitioner".

11 It is also necessary to refer to Section 7(2)(b) which defines "lay associate" as meaning "an associate of the (law) practice who is not an Australian legal practitioner".

12 It is important to note that the complaints/allegations against the Respondent are predicated on the basis that at all times the Respondent was an Associate of the law practice Lundy Lawyers, a practice operated by Mr John Lundy, solicitor. In other words, the Respondent could not be said to have been acting as a lawyer but rather as an employee, or what is often described as a "paralegal", a term used often during the hearing. It is important to make these observations because certain of the complaints/ allegations seem to assume, on their terms as pleaded, that the Respondent carried out certain acts somehow independently of her employer whereas in fact and at all times, and as she so carefully pleads in Reply, and as is admitted by the Law Society, she was acting as an employee, not as a principal.

The Amended Application

13 This document was filed 29 April 2009 and was the basis of the Law Society’s complaints against the Respondent. During the course of the hearing the Law Society withdrew a number of the allegations as pleaded and the Tribunal records that paragraphs 20, 21 and 22 were not pressed. In written submissions Particulars A3[14-19] and A5 [31-32] were not pressed.

14 The Tribunal does not propose to set out in detail the pleadings and particulars as asserted against the Respondent. These were set out over 10 pages but it is convenient to summarise the allegations in the following way:

a) The Respondent failed to give costs disclosure to the mother; failed to give costs disclosure to the parents of the mother (it being asserted that the parents subsequently instructed the Respondent to make an application to the Family Court for parenting orders concerning their grandchildren); the Respondent failed to account or provide a receipt for moneys paid by the parents; the Respondent over-serviced and over-charged the parents (it being asserted that various conferences "were conducted in an inefficient manner, involving lengthy periods of time spent on irrelevant material, matters not connected with (the mother’s) Family Law matters and repetitive material"; that the charge-out rate was exorbitant "having regard to (the Respondent’s) lack of qualifications, skill, knowledge and efficiency, and that there was an arrangement whereby the mother would "undertake typing work for the (Respondent) ... for which she would either be paid or receive a reduction in the fees for (the mother’s) own matter".

b) The Respondent failed to administer an oath upon the execution of an affidavit by the mother, signed the affidavit as witness using the name of her daughter (who was not present at the time) and behaved similarly in relation to the execution of the mother’s Financial Statement to be used in anticipated Family Court proceedings.

c) The Respondent told the mother to sign her name and the name of the Respondent’s daughter as witness on a draft application to the Family Court, the mother did so; and it was asserted that the Respondent’s daughter (a Justice of the Peace) was not present at the time.

d) At a social function the Respondent told the mother words to the effect: "We’ve have to talk. I’m really pissed off with you and once this is finished I am coming to get you".

e) The Respondent acted for the mother and then acted for the parents in circumstances where she failed to advise all those parties "as to the potential for a conflict of interest between them and the potential consequences of acting or seeking to act for all of them".

f) The Respondent was instructed to make an application for final orders on behalf of the mother in the Family Court but failed so to do; she was subsequently instructed by the mother that the mother wished to reconcile with the father but the Respondent "did not act on those instructions. Instead she attempted to pressure (the mother) to refrain from seeking reconciliation by making misleading statements" in which she asserted that she was" an officer of the Court", that the mother and father "will be investigated by DoCS and "if the worst comes to the worst the children will be taken off you"; that "the papers have been filed in Court (and) the Court has a duty to review them. Your kids can be taken from you if you go back to (the father)"; and asserted to the female parent: "I am obligated as an officer of the Court to report what the children have been subjected to. DoCS will come and take the kids".

g) The Respondent represented "an entitlement to engage in legal practice when not an Australian legal practitioner"; that the mother "observed (a) sign beside the door of the Respondent’s office which read "Dimitriou & Associates"; and the Respondent referred to Mr Lundy as "my partner" when speaking with the mother.

h) In relation to the property issues the Respondent failed to provide a costs disclosure to the wife; failed to inform the wife promptly or at any time prior to the conference with counsel, of the fee disclosure provided by counsel; received moneys in cash from the wife on account of the fees of counsel, failed to pass those moneys through the firm’s trust account and paid part of those cash moneys direct to counsel; failed to issue a receipt, breaches of Section 258 Legal Profession Act and cl. 61 Legal Profession Regulations.

i) Failed to progress the property proceedings "in a timely and efficient manner" and failed to communicate with the wife including, and in particular, failure to inform the wife of the proposed conference with counsel and counsel’s advice regarding the state of preparation of the matter.

j) Representing to the wife that she was entitled to engage in legal practice when she was not an "Australian legal practitioner" by saying words to the wife in or to the effect: "I am a partner of Lundy Lawyers and a Family Law solicitor" and "the police contact me a lot because I am a good solicitor"; failing to inform the wife that she was not a solicitor in circumstances where the wife first heard the Respondent was not a solicitor was when briefed counsel so informed her; and when asked to return the file telling the wife: "I am sending you an invoice, until you pay me in full I will not return your file".

Law Society’s Submissions

15 The Law Society submitted that the conduct of the Respondent as alleged in both matters "constitutes professional misconduct: either under s.497(1)(a) of the Legal Profession Act 2004, as constituting a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; alternatively at common law, that is, conduct which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency (the test described in Allinson v. General Council of Medical Education and Registration [1984] 1KB 750)". It was submitted that the assertions of failing to provide or inform of a costs disclosure, failing to account, unethical conduct and failure to act on instructions and misleading the client, were "capable of being professional misconduct; and the asserted unethical conduct (being failure to administer an oath, having a deponent simply sign an affidavit, and signing the affidavit as witness using the name of the Respondent’s daughter), the making of false representations as so entitlement to engage in legal practice and misleading the client, or "the whole of the conduct alleged in the Amended Application", the Respondent is not a fit and proper person to be employed or paid in connection with any legal practice".

16 The Law Society submitted that the "consequence of the Tribunal making the orders sought by the Society is not that the Respondent could never be so employed, but rather, that the Respondent could not be employed without approval under s.17 of the Act". Such an approval "could be subject to conditions" and the Law Society referred to Hegney v. Law Society of NSW [2008] NSWADT 150.

17 Plainly, an order made by this Tribunal against the Respondent as sought by the Law Society would, at least in the short term, deprive the Respondent of her means of employment. For reasons that we set out later in this Decision the Respondent has been for some years employed as an Associate/paralegal or, as she described it, as a "paralegal/clerk" such that any s.17 Application would not be successful (one would think), at least in the short/medium term bearing in mind the findings that the Law Society agitates.

18 It must follow that the issues raised by the Law Society are serious, grave and weighty – indeed one would think that any finding that would deprive a person of his/her employment would require appropriate proof to the requisite standard that applies in this Division of this Tribunal; and orders of that nature should not be made lightly.

19 The Law Society refers to s.42 of the Act which sets out "suitability matters" that the Tribunal is obliged to consider. One of those is "whether the person is currently of good fame and character". The Society refers to an observation by Spigelman CJ in NSW Bar Association v. Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 where the Chief Justice made these observations:

"[20] There are four interrelated interests involved. Client must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in performance of the professional obligations by professional people.

...

[22] ... Neither the relationship of trust between a legal practitioner on the one hand, and his or her clients, colleagues and judiciary on the other hand, nor public confidence in the profession, can be established or maintained, without professional regulation and enforcement."

20 The Society also relied on an observation by Mahoney JA in Law Society of NSW v. Foreman(No. 2) (1994) 34 NSWLR 404 at 449B, where His Honour said:

"Character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. Character is tested not by what one does in good times but in bad.".

21 Similar comments were made by the Court of Appeal in Prothonotary v. McCaffery [2004] NSWCA 470 per McColl JA at [50], [51] and [53].

22 The Law Society submitted "that if the Tribunal made (affirmative) findings with respect to the particulars pressed, such findings would lead to the conclusion that the Respondent is not a fit and proper person to be employed and paid in connection with any legal practice ... (and) ... the conduct alleged in the particulars ... would be professional misconduct".

23 In its submissions in reply the Law Society noted that its case "is put on two bases". Firstly, an "assessment of the conduct of the Respondent as a whole, and a determination by the Tribunal as to which part or parts of the Respondent’s evidence is accepted, where it is in conflict with the evidence of the witnesses called by the Society, will necessarily be made by the Tribunal. While the Society bears the onus of proving its case, the Respondent has joined issue on the evidence and has advanced a contrary version of events. Should that contrary version of events not be accepted, the Society contends that the particulars pressed would be made out and that the Tribunal would make the Orders sought". The Society submitted that the Tribunal would "not accept the evidence of the Respondent where it is in conflict with the evidence of the witnesses called by the Society, and that such findings would lead to the conclusion that the Respondent is not a fit and proper person to be employed or paid in connection with any legal practice ...".

24 The Tribunal unreservedly accepts the statements of principle asserted by the Law Society. There is no doubt at all that the observations in the recited cases are correct, and those principles have also been enunciated by this Tribunal on many occasions, and applied by this Tribunal. But the real issue is not an argument about applicable principles but rather an argument about the facts as adduced by the parties by way of evidence. And, having regard to the ‘suitability matters’ and the observations of Spigelman CJ in "Cummins" (recited above) it is important to observe that the Respondent’s employer, Mr John Lundy, was not called, neither were the two well known and respected barristers who were briefed by the Respondent (one in the children issues and one in the property proceedings), both of whom could have given evidence regarding their views about the Respondent; and the Tribunal would be entitled, we think, to form a view that those two barristers would have given evidence in or to the effect that the Respondent was a person upon whom they could rely in accepting instructions and acting in relation to the various matters and generally in corroboration of portions of her evidence. However, this Tribunal does not base its opinion and decision upon that aspect, but rather upon the evidence that was led and its view in relation to each of the witnesses who gave that evidence.

25 And there is a further issue or observation: if the Tribunal was of the view, for example, that a costs disclosure had not been given to the mother or the parents, would that in itself be sufficient to justify making orders as sought? The Tribunal is respectfully of the opinion that the answer to that question must be: "No". In fairness it was not put to the Tribunal that any one of the particular assertions, if proved, would result in an order being made against the Respondent; rather it was put (as we understood it) as a combination such that, when considering the whole of the evidence, the Tribunal could form the opinion that those assertions that were found proved would justify an order being made against the Respondent. One needs to be very careful, therefore, that one does not seize upon a particular issue and conclude from that issue, if found against the Respondent, that an order should be made against her.


The Children Issues

26 It is convenient to deal with those various allegations now, (the children issues) and then deal with the other assertions (the property issues) made in respect of the wife and the husband.

27 The evidence was lengthy, somewhat traumatic, involved various quite personal details. It is the view of this Tribunal that firstly it is not necessary to review in detail that evidence and secondly, and in any event, the Tribunal, having listened carefully to all of the evidence and reviewed all of the sworn material and the three days of transcript, that the evidence of the Respondent is to be preferred (where there is a conflict) to the evidence of the mother and the parents.

28 This is an important conclusion which the Tribunal has clearly reached. There is no doubt that the mother gave evidence as best she could, as did the parents. However, their evidence was often contradictory, perhaps even confusing, and that is understandable having regard to the fact that the mother subsequently returned to live with the father; and the parents, at least at the relevant times, had a view that the mother’s actions in so returning were not in the best interests of the children.

29 The Tribunal respectfully agrees with the observations of counsel for the Law Society when she stated (T.29/04/09 at 9) "In my submission the matter is ultimately going to turn on, in a sense, relatively narrow matters. Factual issues are joined. The matter will resolve largely on the Tribunal’s assessment of the witnesses, whether, on the one hand, the Applicant’s evidence in relation to the two matters dealt with in the application is accepted; or alternatively (the Respondent’s) factual assertion of a different scenario about these matters is accepted".

30 However, in our view it goes a step further. The grandmother gave evidence on behalf of the Respondent. The Tribunal has no hesitation in making it absolutely plain that it accepts the evidence of the grandmother. Thus, if any corroboration was required, the evidence of the grandmother was it.

31 Secondly, the Tribunal has no hesitation in concluding that the Respondent acted to the best of her ability in circumstances where she unfortunately allowed herself to become personally involved (in an emotional sense) with the issues between the mother and father and the parents and the mother, relating to the children. We shall refer to this personal involvement later in this Decision. But, that having been said, the Tribunal is clearly of the opinion that the Respondent endeavoured to act in the best interests of the mother, the parents and the children, albeit in confusing and perhaps unreliable circumstances. Indeed, on one view her actions, although pleaded against her as inaction and in breach of her instructions, in fact contributed to the reconciliation of the mother and father, whether or not the parents or the Respondent were personally of the view that such reconciliation was appropriate in the interests of the mother and that of the children. It is not the job of this Tribunal to express a view one way or the other – human beings are unusual animals and often act in ways that are not necessarily understandable or acceptable to others. However, and on the basis that the mother knew what she was doing and acted voluntarily (and there was not the slightest evidence to the contrary) then the mother could clearly make up her own mind, which she did, and return to the father with whom she has had subsequently, on the evidence, two further children.

32 Family Law is a difficult, often highly emotional, area of the law. To keep some distance from the fray is often difficult when at the same time attempting to convey some human empathy for the client. But, as experience tells one, the client is often highly emotional, gives conflicting instructions, alternatively or in addition instructions that are misleading, either positively or by omission, and as such, as with all litigation, lawyers should be alert to ensure that, notwithstanding their instructions, proceedings are not commended willy-nilly but only after careful consideration of the evidence produced by the client, with as much appropriate corroboration as is available.

33 In the material that was before the Respondent, and as put before this Tribunal, clearly there was a very confused situation, confusion caused by the mother herself and in the instructions that she gave to the Respondent, compounded by the different approach taken by the parents.

34 For example, it was plain that the mother provided documentary material to the Respondent from which she later wished to resile – it was on that documentary material that the Respondent and briefed counsel relied in preparing the draft Family Court documents and it was the content of those draft documents to which the parents, in particular the male parent, took objection, stating that the mother had over-exaggerated the facts. The male parent was of the view that the allegations "were said in malice"; the mother was guilty of "over-dramatisation" and that the allegations were "not true" (T.30/04/09 at 62-63). The facts as asserted by the mother in her written instructions to the Respondent were quite horrendous and the Respondent, acting properly, put those facts to counsel who, also acting properly, prepared the necessary draft documents.

35 The Tribunal can understand the subsequent reticence of the mother, having regard to the objections taken by the male parent and her desire to reconcile with the father, to proceed with the allegations; and this became plain during the hearing.

36 Indeed, the Tribunal wishes to observe that the hearing itself was quite traumatic for the mother (as it was for the Respondent) and having regard to the mother’s reconciliation with the father we had some difficulty in working out the public benefit of re-hashing in this Tribunal all the activities between the mother, the parents, the grandmother and the Respondent in circumstances where the mother had in fact become reconciled to the father.

37 That is not to say that the proceedings against the Respondent were not brought for a proper purpose; but the Tribunal notes that Mr Lundy himself gave no evidence, neither did briefed counsel, and it could not reasonably be said that whatever were the actions or failures of the Respondent in fact in the end the mother’s ultimate wishes were not fulfilled. We repeat: Family Law/matrimonial matters are difficult and often require an empathic generous approach which, in all the circumstances, this Tribunal has formed the opinion was evidenced by the Respondent.

38 It is clear from the evidence, unchallenged by Applicant, that the Respondent was a paralegal associate employed by Lundy Lawyers. It is also plain from the evidence, and we unreservedly accept this to be the case, that at all material times neither the mother nor the parents were of the view that the Respondent was a legal practitioner. Whether or not she used the words "Officer of the Court" the fact is that the persons to whom she may have addressed those words were under no misapprehension that she was at all times an associate or paralegal. We do not find in all the circumstances and taking the evidence as a whole, the Respondent held herself out to be a legal practitioner/solicitor.

39 Dealing now with the various allegations in perhaps more detail and as pleaded in the Amended Application, the Tribunal is not prepared to find that no costs disclosure was provided to the mother. Doing the best that we can on the evidence it would appear that some form of computer disk was handed to the mother by the Respondent and this computer disk contained a Family Law costs disclosure letter from Lundy Lawyers. It was also asserted that the Respondent did not provide the parents with a costs disclosure – it is plain from the evidence this contention cannot be made out – at T.30/04/09 at 34 the female parent stated receiving a cost disclosure statement. Curiously, the male parent [at 64] said he had "never seen a costs disclosure at all" – how that statement can be reconciled with the female parent is not entirely clear. But certainly, and having regard to the evidence of the Respondent herself (T.01/05/09 at 41), there is in our view not sufficient evidence from which one could comfortably make a finding against the Respondent on these issues.

40 The second assertion relates to a failure to account and a failure to provide a receipt, said to be breaches of Part 3.1 of the Legal Profession Act, Sections 255 and cl.61 of the Regulations. It was asserted that the female parent paid the Respondent $4,500.00 and later $5,000.00, total $9,500.00, and that the only accounting the female parent received was a reference to $9,500.00 as "received" in a bill of costs. There was a dispute as to the circumstances in which the $9,500.00 was actually received, the Respondent asserting that it was paid in full in one sum, and that she accounted for it in the bill of costs rendered on behalf of Lundy Lawyers.

41 In any event, and whatever may be the situation with regard to the payment and the rendering of the account, the plain fact is that at all times the Respondent was employed by Lundy Lawyers and it is impossible, in those circumstances (a factual circumstance that was clearly admitted in the Applicant’s submissions filed 18 June 2009 at paragraph 4: "during the relevant the Respondent was employed in the law practice of Mr John Lundy trading as Lundy Lawyers"), to assert against her some sort of private arrangement (which was the gravamen of the assertion) that the parents paid to her personally the $9,500.00 and that she personally did not issue a receipt or ensure that a receipt issued.

42 It was then asserted that the Respondent over-serviced and over-charged. It was pleaded that there were a number of conferences between 23 August 2006 and 24 October 2006, that the conferences "were conducted in an inefficient manner, involving periods of time spent on irrelevant material ... and repetitive material" as has been set out above, and that having regard to the Respondent’s "lack of qualification, skill, knowledge and efficiency, the charge-out rate (at $300.00 per hour) was exorbitant". Quite frankly, the Tribunal is unable to find the slightest jot of evidence in support of those assertions. Whatever may be the situation the charge-out rate was clearly the charge-out rate of Lundy Lawyers. If there is to be any blame attached to the quantum then that is an issue to be taken up with Mr Lundy, who, we repeat, gave no evidence in these proceedings and whose files, although held by the Law Society and referred to on numerous occasions by the Respondent as containing material in corroboration of her evidence, were not produced by the Law Society although there was more than ample opportunity so to do. Why the files were not produced was never explained.

43 In any event, the evidence did not disclose, even to the slightest extent, any sort of inefficiency or over-servicing. What the evidence did disclose, on the other hand, was a real and genuine attempt by the Respondent to try and get a grip on the allegations made by the mother, somewhat undermined by the attitude of the male parent, in circumstances where the instructions were often given, not in the office but rather at personal homes and where there were present other persons, various children running about, and where the persons involved were highly emotional and whose thoughts were often contradictory. However, one’s experience shows that in Family Law/matrimonial matters that is often the case. It is particularly so in matters involving asserted violence, sexual activities, drugs and children. In these circumstances the Respondent, quite properly in our view, sought to ensure that the instructions that she got as a paralegal were proper instructions and were correct. If that meant going over the asserted incidence on more than one occasion, then that is, in our view, an appropriate course of action – there is nothing worse than "firing from the hip" in Family Law matters and finding later that one has to re-assess one’s evidence, re-draft it, with the consequence that one is left open to quite severe attacks on one’s creditability. Great care needs to be taken. This Respondent took that care.

44 As for the assertion that the mother would undertake typing work for the Respondent "for which she would either be paid or receive a reduction of fees for her own matter" and that such typing work was not off set in the ultimate bill of costs, the Tribunal is not satisfied by any means that such agreement was reached. The female parent gave evidence at T.30/04/09 at 31 that she "knew that the Respondent worked for Mr Lundy" but, and in contradiction at 39 she thought that the mother would perform typing for the Respondent, not for Mr Lundy (lines 5-9).

45 With regard to the assertions that the Respondent did not administer an oath, that she signed documents as a witness using the name of her daughter, the evidence was overwhelmingly to the contrary. And that was not only the evidence of the Respondent and her daughter but also, and importantly, the evidence of the grandmother. This Tribunal was very impressed with the grandmother. Her evidence was, in relation to the $9,500.00, that the female parent gave that mother in one lump sum to the Respondent and, equally as importantly, (at T.01/05/09 at 71) the mother, the Respondent’s daughter, a Justice of the Peace, were all "at the same time and in the same place" when the Respondent’s daughter administered the oath [at 72] to the mother. The allegations are simply not made out on the evidence.

46 With regard to the allegation that certain threatening words were used to the mother (as set out above), there was very little evidence one way or the other on this and the Tribunal is not prepared to make a finding that would constitute a reason, either alone or in conjunction with other findings, that would be in support of the orders sought.

47 As far as acting for parties with a potential conflict of interest and putting pressure on the mother to "refrain from seeking reconciliation by making misleading statements "(as set out above) we are not of the opinion that, in reality, there was a potential conflict of interest. The facts and circumstances in evidence do not, in our view, and having regard to the confusion as between the mother and the parents, who were often in conference together and together with counsel) it seems to us, taken as a whole, it could not be properly asserted against the Respondent that there was a potential conflict of interest. Rather, the Respondent had in the forefront of her mind the welfare of the mother and, perhaps more importantly, the welfare of the children of the marriage. And it was to those issues that the parents were also addressing their concerns/instructions.

48 Even now, one suspects, the parents are not happy with the fact that the mother went back to the father. But, that having been said, it was the male parent’s clear view that the mother had over-exaggerated – "stretched" – the factual circumstances. Although there may have been some blurring of the issues it is plain that the parents became involved without objection of the mother and, although the Respondent may well, in hindsight, have more properly refused to act for the parents, already having instructions from the mother, in the circumstances and in the totality of the contact that she had with the mother and the parents it is difficult to differentiate or separate their particular interests, bearing in mind that they all seem to have had the interests of the children at heart and often conferred in each other’s presence and in the presence of counsel. To make a finding against the Respondent in these circumstances would, in our respectful opinion, be quite unfair.

49 With regard to the assertion that the Respondent "attempted to pressure (the mother) to refrain from seeking reconciliation by making misleading statements", and that she was representing herself as entitled ‘to engage in legal practice", and that she referred to Mr Lundy as "my partner", we are not satisfied that the statements made, even if proved to the relevant satisfaction, would have in all the circumstances been a presentation that the Respondent was "an officer of the court" or that she was in partnership with Mr Lundy. It is plain from the evidence that at all times the mother and the parents were clearly aware that the Respondent was not a lawyer but was rather an associate or a paralegal – indeed even the male parent admitted that the Respondent "did use the word "paralegal"" even though he "always understood that (the Respondent) was a lawyer". It is difficult, if not impossible, to conclude that any of the parties thought that the Respondent was a lawyer and that, at highest, the Respondent’s reference to herself as "an officer of the court", which she admitted she used, could not have been easily interpreted by the mother, nor the parents, as holding herself as being a qualified legal practitioner but rather as an inducement to the parties to act in the best interests of the children.

50 There is no doubt that the Respondent sometimes used premises which had on the outside a sign reading "Dimitriou & Associates", alternatively "Dimitriou & Associates Financial"; but what conclusion this Tribunal is asked to draw from that fact is not clear. The Respondent admitted as much, noting that she "started my business as financial advising and I have been at those premises since 1982".

The Second Set of Allegations – the Property Issues

51 The Law Society alleged that in relation to the wife the Respondent accepted instructions to act for her in relation to Family Court proceedings already commenced by the wife but failed to make cost disclosure to her, failed to provide the costs disclosure of briefed counsel, sought payment of $1,250.00 by the wife for counsel’s fees, was paid that sum but only paid counsel $1,000.00 and failed to provide any receipt for the $1,250.00 and failed "to progress the proceedings in a timely and efficient manner and (failed) communicate with (the wife)". It was also asserted that the Respondent failed to inform the wife of a proposed conference with counsel and failed to provide to the wife counsel’s Advice regarding the state of preparation of the Family Court matter.

52 It was also asserted that the Respondent held herself out to be an Australian legal practitioner by saying to the wife "I am a partner of Lundy Lawyers and a Family Law solicitor" and "the police contact me a lot because I am a good solicitor" and "I would like to do migration business with you. I have a lot of clients that need migration help". It was also asserted that it was not until quite late in the piece that the wife was informed, not by the Respondent but by counsel, that the Respondent was not a solicitor; and thereafter when wishing to have "her paperwork returned" the wife was told by the Respondent "I am sending you an invoice until you pay me in full I will not return your file"

53 The evidence in support of these assertions was given by the wife by way of affidavit and orally. It appears that the wife was involved in a property dispute with her husband. Property was owned in NSW, in another state and in another country. The wife wanted a property settlement. There were difficulties in obtaining valuations. She wanted one-half of the pool of all real estate. There was rental income from some of the properties. The husband did not want to give the wife anything.

54 The wife initially acted for herself . Then she consulted another solicitor who assisted her "in a limited capacity". But she "was not comfortable with him" and, upon the recommendation of a work colleague consulted the Respondent. In her evidence in chief she said the Respondent told her "I am a partner of Lundy Lawyers and a family law solicitor ... you will not have to pay me anything until everything is settled. You can pay me anything ... the police contact me a lot because I am a good solicitor ... I have a mile of family law cases".

55 The wife later said that "time is running out as we have to file the affidavit/financial statements/compliance documents as well as get the valuation of the property in (the other country) as well as the property (in NSW)" and the Respondent said, "It will be easier for you to drop off the documents at my Regents Park office".

56 The evidence went on to assert a telephone text message which requested the wife to telephone the Respondent at home, although the number supplied was a telephone number that appeared on the letterhead of Lundy Lawyers. The Respondent explained this by reference to the letterhead providing her details and she would forward a copy on to Mr Lundy. That may seem an unusual practice – the Respondent’s evidence was quite clear in this regard and Mr Lundy was not called.

57 Subsequently, the wife met the Respondent at her home, but instead of providing evidence as to the conversation the best the wife could do was say the Respondent "gave no specific advice as to the way forward with my litigation" – at best a conclusion.

58 There was some further evidence in or to the effect that the Respondent was to employ a barrister to attend Court because (the) case is very complicated and the wife "will have to pay (the barrister) $1,250.00 for appearing in the Court". The evidence in chief was that the court date had been vacated and the case placed in the Defaulter’s List because both parties for the litigation "have not filed any documents".

59 There then followed some text messages between the wife and the Respondent; ultimately the wife, the Respondent and counsel went to court and counsel said "I will prepare the financial documents, affidavit and compliance document for you" and counsel (who was not called and who gave no evidence) is alleged to have asked whether the wife had "signed the agreement in regard to my fees", the answer being in the negative and at that point counsel said "(the Respondent) will give you my fee schedule. Are you aware that (the Respondent) is acting on behalf of Lundy Lawyers, and that she is only a law clerk and not a solicitor?" A rather odd thing to say but in any event there was no response to that and the wife gave no evidence as to what effect that statement made upon her. There was some material admitted into evidence relating to a telephone conversation that the wife had with her colleague in or to the effect: "I do not want (the Respondent) to do my work because she is not a solicitor".

60 The wife asserted that she then asked the Respondent for her papers back and ultimately received a letter closing, inter alia, a cost disclosure, an account and a letter and bill from briefed counsel. That material was annexed to the wife’s affidavit in chief and shows quite clearly that the documentation is on the letterhead of Lundy Lawyers and the cost disclosure from counsel is addressed to Lundy Lawyers, as was his memorandum of fees. That memorandum shows a receipt of $1,000.00.

61 The evidence in chief by way of response is set out in the Respondent’s affidavit 22 February 2009. Again, and although no objection was taken, evidence was allowed in relating to conversations with persons who were not called and did not give evidence. So, for example, upon the reference from the colleague of the wife the Respondent says that she spoke with her and said "Did you tell (the wife) that I am not fully qualified as a solicitor and I am employed by Lundy Lawyers" and the colleague replied: "Yes, I have told her that". If that material is accepted (and it was in evidence and unchallenged) then it is not unreasonable to conclude that the Respondent was aware that the wife had been told that, effectively, the Respondent was simply an associate/paralegal employed by Lundy Lawyers.

62 The Respondent’s evidence (paragraph 51ff) was that she forwarded a cost disclosure, Notice of Rights and Family Law pamphlet to (the wife) and that "shortly after receipt of a fee disclosure from ... counsel I forwarded a copy of that disclosure to (the wife)" ... (and that of the $1,250.00 received from the wife "I gave $1,000.00 of the amount to counsel (and) I applied the balance forwards payment of the Lundy Lawyers account ...". The Respondent went on to say that at the request of the wife, she provided to the wife a copy of her resume, which makes it plain that she was at all material times a "paralegal clerk".

63 Her affidavit evidence went on to assert that the Respondent received a typed statement from the wife, which was exhibited, and which set out property details.

64 In fairness, the wife said in her affidavit in reply that she had never received the resume. That aspect was never explored in cross examination; neither was the assertion of the Respondent that she had sent the resume to the wife. That having been said, however, it was plain from the unchallenged evidence of the Respondent that the content of the resume with regard to her employment by Lundy Lawyers and previous firms of lawyers as a paralegal was in fact true – there was not the slightest evidence to the contrary. Of more interest, however, is the statement in writing supplied by the wife to the Respondent, asserted by the Respondent to have been supplied 22 May 2007, and not traversed by the wife. This is an interesting document because the wife complained that the Respondent "gave me no specific advice as to the way forward with my litigation". There was a detailed discussion between Molloy JM and counsel for the Law Society at T.30/04/09 at 87 on whether that sort of evidence, amounting as it does to a conclusion, ought to be relied upon. However, it is plain from the detailed statement provided to the Respondent that there were a number of very serious issues relating to property raised by the wife. Firstly, it was plain from the statement that there were no valuations. This was explored in detail in cross examination (as was anticipated) and at 89 the wife admitted that as at the time she advised the Respondent that the evidence of valuations or actual sale were "not available". Indeed, at 90 the wife admitted that she did in fact receive advice from the Respondent to issue various subpoenas against the husband, using these words "We need to subpoena all (the husband’s) bank statements, credit card statements and also do an in depth check and search on the properties and also to check if he has any properties in Australia, as he could be hiding properties in his name". The wife understood that "the only way to force the issue was to issue subpoenas from the court, directing (the husband) to produce documents evidencing his financial and asset position". It is plain from that material alone that the assertion that the Respondent gave "no specific advice as to the way forward with my litigation" was clearly wrong.

65 In any event, the Statement prepared by the wife and handed to the Respondent was clearly very vague in relation to some of the major items of property. Firstly, there was no valuations supplied – at best, the wife indicated some belief in their value. Secondly, it was asserted that the husband was a shareholder in a company that owned a considerable portion of land in another state on some form of "long term lease", but the details of his shareholding, value, any liabilities on the shareholding were vague, at best.

66 Nextly, and on page 1 of the Statement, appears these interesting words: "(the husband) may have had other savings and assets including shareholding but I am not aware of the details". And, on page 7 of the Statement appears this interesting observation: "I believe (the husband) has overseas bank accounts in Switzerland".

67 One might ask, not unreasonably, "What was the Respondent expected to do with that type of information/instructions, other than to tender the advice that she clearly did?" It is enough to make the above observations – there is no need for the Tribunal to trawl through the balance of the Statement – to see that before there could be a reasonable appreciation of the wife’s property entitlement a great deal of additional work would need to be done.

68 However, it was plain from the evidence, starkly plain, that the wife did not want that sort of enquiry to be activated. Although [at 91] the wife admitted that "the only way to get (the) details necessary, for a court to make an assessment ... would be to provide the Judge with details ... (and) the only way to force (the husband) to the party" was to issue appropriate subpoenas, curiously, that did not happen. The wife said: "We did not subpoena any of his documents" [91], the husband did not reveal any of his assets, and when asked: "How did you get the documents?" the wife replied: "I compromised without getting his bank statements".

69 At the time of the Family Court property hearing, which apparently occupied two days, the wife appeared in person, the husband appeared in person and somehow or other the wife "compromised" on the values to be put before the Court. This was so notwithstanding the fact that, with the Respondent, she had consulted with briefed counsel who was going to "prepare the financial documents, affidavit and compliance document ..".

70 This Tribunal is clearly of the view that the wife was a person who was endeavouring to run her property dispute "on the cheap", was not giving proper instructions to the Respondent such that however hard the Respondent tried to protect the interests of the wife she could never have succeeded, did not in fact succeed, but not through her own fault but rather the un-cooperative attitude taken by the wife.

71 The Tribunal wishes to make it clear that it regarded the sworn evidence of the wife as unreliable and tainted by her approach to the Respondent in failing to give the Respondent appropriate instructions, failing to follow up with briefed and competent counsel and then, after the event, finding someone to blame for the situation in which she found herself.

72 In relation to the property proceedings the Tribunal prefers the evidence of the Respondent. The Tribunal does not find proven, to the requisite standard, the assertions/complaints against the Respondent.

Further Observations

73 The Respondent gave sworn evidence, by affidavit and orally. She gave evidence of her previous employment, including previous employment with a number of firms of solicitors as a paralegal/associate. She described it as a "paralegal clerk". All of that evidence was unchallenged.

74 She also gave evidence of her relationship/employment with Mr Lundy, solicitor. That evidence was effectively unchallenged and Mr Lundy was not called.

75 She also gave evidence of documentation which she asserted was in files (in relation to the various matters in issue) held by Lundy Lawyers. Those files were said to be held by the Law Society in connection with its investigations. Notwithstanding numerous references to those files and the documents said to be contained therein the files were not produced at the hearing. The Tribunal can only conclude that the references to the documents are in fact correct and the documents asserted by the Respondent to be in those files are in fact in those files and contain the information asserted by the Respondent.

76 But there is a more important observation that the Tribunal would seek to make. This Respondent, although trying her best for the particular persons involved, became so enmeshed in the allegations that she allowed herself to not bring to the task an independent dispassionate approach. Dealing with family law/matrimonial matters, particularly those involving children, does require a degree of emotional removal from the client. It is often the case where instructions are given in circumstances where, upon later reflection, the instructions are modified or withdrawn. This was particularly so in relation to the first matter referred to in this Decision. Not only did the mother make certain quite dramatic assertions but later sought to withdraw or modify those assertions; the male parent regarded some of those assertions as exaggerated; and as it turned out, it appears that the allegations of the father assaulting the mother were, although perhaps true, certainly coloured by later revelations that the mother had assaulted the father! Often nothing is quite as it first seems. Care needs to be taken in taking final instructions from emotionally charged clients.

77 It is worth quoting in some detail from the transcript on 01/05/09 commencing at p.43. The Tribunal does not propose to quote the whole, but relevant portions are as follows:-

Webster: You didn’t file any papers in the Family Court, did you, in relation to this matter?

Respondent: I certainly did not, no.

Webster: But you had said to (the mother) from time to time: "I am going to file them"?

Respondent: Well, it was an urgent matter. We did whatever we could to try and quickly move on it as fast as we (could) and I told her we (would) do our best to try and file those documents at a 100 miles an hour. However, the information that we were ... the financial statement – sorry, I did whatever I could to file the documents as quick as I (could). However, I did not file any documents. By the time we got to the final orders and all the documents that we prepared (the mother) wanted to go back home to (the father).

[There was then a discussion about privilege and then the following exchange took place].

Respondent: (The mother) did at one stage say for me not to say anything to her family and that she was actually wanting to go back to (the father). However, she was in two minds and I kept saying to her "Why would you want to go back to someone like that?" Now she was in two minds. So I thought, okay, I held much as I (could) in not providing that information to the family because her family were just adamant that she shouldn’t go back at all, totally adamant, and I did whatever she told me to do, I suppose, holding back the documents until she was ready to tell me which way she (wanted) to turn and I tried to talk to her. I tried to say: "Look, go to counselling", go and see what she could, "You should not be around someone like that". She said she wanted to go home, that she was worth nothing and, therefore, she wants to go home to (the father) and she was so angry.

Riordan: Have a glass of water.

Webster: Do you want to have a break?

Molloy: Do you want a break Ms Dimitriou?

Respondent: No, I just didn’t think ...

Molloy: Just calm down for a minute, please.

Respondent: I just didn’t think it was warranted for any woman to put up with that and the children to be bashed up in the manner that they were. So I tried to do my best, as my own daughter that I would have done for her. I kept trying so hard, saying, "Don’t. Leave. Go. Go. Come on. I’ll do whatever I can to help you. You don’t need to be bashed up. You don’t need to be a sexual puppet or someone sticking a knife (in) you, having sexual intercourse six or seven times a day". She used to say, "He makes me feel good and where will I go with four other kids?" I said: "... we can find a way out". ... she just said that, "He makes me feel good and I feel like trash otherwise. No one is going to take me and my kids" ... I just didn’t think anyone, any woman or any child, should be subjected to something like that – so I was angry – even when she rang back I said, "why? Why are you doing this?" She said, "He is my husband, no one else is going to have me", and I went ‘fair enough". That’s all I can say. I didn’t – but I did. I held back as much as I (could) with filing the documents because (the mother) was in two minds and she (was) just scared more than anything else to go forward. I did my best. That’s all I could do. I just didn’t think, I suppose, any woman should have to put up with that and I think he is doing the same to her now and that’s all I know. I tried to approach her. I tried to talk to her. I just hope the kids are okay after all of this, that’s all, because I have a lot of concerns for the children .... that’s all I can do at the time, just to assist her. I did my best

and her grandmother was so supportive as well because she brought her up, but she would not ...

Molloy: It’s difficult becoming personally involved in these matters, isn’t it?

Respondent: I did because I treated her like my daughter. I just didn’t think anyone deserved this, that’s all. I just didn’t think it was the right thing to happen, to do, that’s all. I just – I got so attached to (the mother), so I thought, "I’ll see what I can do to protect her." That’s all I tried to do and the kids, oh I love the kids dearly. I mean even now, even if I see them the first thing they do is run up and kiss me or hug me ... I just didn’t know where to turn, the courts, even the courts. I just hope – what I do hope is whatever I have done I am not going to be sorry later for, as the kids will be hurt, that’s all, that’s my concern at the moment because I think he has gone back to his (old) ways again, just hearing from grandma and that. Like I say to you, yes, I took it personally and I took her, as much as I can, as my daughter.

Molloy: Anything else you want to say, Ms Dimitriou?

Respondent: No

Molloy: Alright. Mr Conomos and Ms Webster, I think we should take a break for a while.

Webster: I was going to suggest we might take an early lunch and adjournment.

Molloy: An early lunch, I think, in the circumstances. Right. You go and have a quiet lunch Ms Dimitriou, and calm down, alright – there is no need to cry in the witness box alright?

Respondent: I am just concerned.

Molloy: I understand that.

Respondent: I just hope nothing happens to them (referring to the children) because I feel so guilty, that’s my fear at the moment and, you know, we hear it everyday. We see it we deal with it and someone so close to you I can’t help. That’s my fear that something is going to happen and I am going to be guilty for the rest of my life. I didn’t do what I was supposed to do, that’s all".

Later, there was a discussion about the Respondent’s experience in the law and various areas of the law (commencing at p.51) and it transpired that in answer to a question asked by Riordan JM the Respondent conceded that these were the only two family law matters that she had while employed by Lundy Lawyers. Indeed, it appears that the Respondent had only one previous experience in a family law matter. Most of her experience was with commercial litigation, debt collecting and so on.

78 Then, later at page 54 the following exchange took place:

Molloy: Do you think, upon reflection, that your skills as a paralegal ought not to be applied to family law work?

Respondent: Now, coming back, I agree. I totally agree with you, but I relied upon counsel in those matters, on both of those matters. I really relied on counsel.

Molloy: You will agree with me, won’t you, that it can be a highly emotionally charged, traumatic jurisdiction.

Respondent: Now I know, yes.

Molloy: Alright, and, as a paralegal would you agree with this that, in order to be a good lawyer or paralegal, one ought to have the ability to step back from the battlefield that is being fought by the client and (not) involve yourself?

Respondent: I agree with you there now. Yes I certainly agree. It was just human, I suppose, human instinct that I got more attached to the children, more than anything ... and now, looking at it what I should have done, once I got involved like that I should have just stepped backwards and walked away and let someone else handle it.

Molloy: To be a good general, one should stand back from the dust of battle. Do you agree with that?

Respondent: I totally agree with you now, totally agree with you.

79 The purpose of referring in some detail to the transcript was to highlight the problem that was created by this Respondent in becoming too involved with her clients, particularly in the case of the mother, the parents and the children. The evidence showed that the Respondent often visited their homes, or they visited her home and, quite frankly, that sort of conduct is, although not prohibited, leaves the legal advisor, whether a lawyer or a paralegal, open to this sort of involvement and assertions that have been made. Advice tendered outside the professional offices of a lawyer can often be misunderstood and the role and professionalism of the lawyer, or the paralegal, can be quite easily compromised.

80 There are thousands of court cases concerning children. The Courts wrestle with those everyday. It is often the case where mothers, fathers and witnesses lie, where there is "high conflict" between parents and where Courts try very hard, in very trying circumstances, to filter out the lies and the gilding of the truth in the best interests of the children. A good recent example of this is Silas v. Barry [2009] FMCAfam 448 where Altobelli FM was obliged to make some 33 orders relating to parental responsibility and access. His Honour observed at [1] ..... and [2]

"1. All decisions that are made in the Family Law Courts about the parenting of children involve, to some extent, a degree of predicting the future. It is therefore, a very imprecise process. Future predictions are based on both present and historical facts and evidence. A decision is made at one point in time and assumes, in the highly artificial environment of the courtroom, that the family is static. In reality the family is dynamic. Both parents and children change. Children grow up. Even parents change, sometimes for the better, but not always. Decision making in parenting cases is very difficult even when there is clear evidence. But all decision making in parenting cases involves the Court trusting parents to do the right thing, particularly into the future.

2. If a parent, or both parents, are found to be untrustworthy based on past events, a Court must take that into account in considering the future, and all of this influences the orders that are made in a particular case."

81 In the instructions presented to the Respondent, although initially the instructions appeared clear, yet, as the matter progressed, the clarity of the instructions became less clear and at least one of the parents, who were involved from the beginning and without complaint from the mother, and who all together attended conferences with counsel, thought the initial instructions were "stretched". And, so it seems, the mother herself was ambivalent about actually commencing Court proceedings – indeed, she returned to live with the father.

82 A second, and final, example is Dalziel v. Belladonna [2009] FamCA 254 where allegations of sexual abuse where held to be without foundation and there was a change in parental responsibility resulting in some 30 separate Court Orders.

83 It is worth quoting from the Judgment of Brown J commencing at [9]:

9. The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

10. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

11. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

12. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).

13. In Hemiro & Sinla [2009] FamCA 181 I summarised the principles referable to determination of an application which involves an allegation of sexual abuse. I will not repeat them.

14. In essence the court must determine whether there is an unacceptable risk of R being sexually abused in her father’s case. The standard of proof is that set out in s.140 of the Evidence Act 1995 (Cth), pursuant to which the court must find the case of a party proved if it is satisfied and the case has been proved on the balance of probabilities. As provided in s.140(2) and without limiting the matters which the court may take into account in deciding whether it is so satisfied, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.

15. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact".

84 In child/family proceedings allegations of sexual abuse, violence, drug taking and the like need to be carefully pleaded/particularised, and the lawyer/paralegal taking the instructions ought to very carefully ensure, at least as best possible, that the allegations are properly made. In our view, and in the highly charged emotional atmosphere in which the Respondent found herself, the Respondent did act in the best interests of the children consistent with her instructions. There is no doubt it could have been handled better – instructions should have been given at the law offices and, in the circumstances, the employer should have been (on the evidence) more closely involved. But those are not reasons for making the orders sought. Family law and criminal law can be very traumatic for legal practitioners, in particular solicitors who deal with clients face to face at the coalface. Care needs to be taken not to impose conditions/restrictions and/or make findings which bear little or no relevance to life and the taking of instructions in often very trying circumstances.

85 However, the Tribunal has concluded that the assertions made against the Respondent, although perhaps initially attractive, have been clearly answered by the Respondent such that the Tribunal declines to make any orders against the Respondent as sought in the Amended Application. The Tribunal does not find that the Respondent is not a fit and proper person to be employed or paid in connection with a legal practice.


Final Observations

86 At all material times the Respondent was employed by Lundy Lawyers. That was never in issue and always conceded by the Law Society – in its Submissions, paragraph 4, appear the words: "During the relevant period, the Respondent was employed in the law practice of Mr John Lundy, trading as Lundy Lawyers". Consequently, and unless it is asserted that somehow the Respondent embarked upon a frolic of her own in respect of the matters asserted against her, she was at all times an employee, a paralegal or a "paralegal clerk". And the evidence clearly showed that the principal of the firm, Mr Lundy, was aware that she was taking instructions in relation to each of the matters. In addition, the Tribunal has clearly concluded that the various persons (the mother, the parents, the grandmother and the wife) knew that the Respondent was simply an employee. More importantly, it was not asserted that somehow or other she was acting alone. So, for example, in relation to moneys paid to/received by the Respondent, there is no allegation that the money was not paid to Lundy Lawyers. We agree with the submissions by counsel for the Respondent that the Respondent "presumably had not power to issue trust receipts or deposit money into Lundy Lawyers Trust Account. There is simply no evidence before the Tribunal in that regard". We also agree that it was "unlikely that Lundy Lawyers would have authorised a paralegal to operate its trust account" and, again, we refer to the fact that Mr Lundy himself gave no evidence. However, the Respondent’s evidence was that any moneys received were paid to Lundy Lawyers. That is not to say that all moneys received were paid to Lundy Lawyers but rather any surplus moneys were so paid – there is no doubt that the Respondent paid counsel direct from moneys received in cash. There is also no doubt that money should have been passed through the trust account. However, there is not the slightest suggestion that moneys were stolen or otherwise misused and the failure to pay some part of the moneys received into trust is not a ground for making the orders sought. Although the primary obligation is on the law practice, and the Respondent should not have taken it upon herself to pay counsel direct by use of the cash, we do not regard that as sufficiently serious in itself to justify an order being made against the Respondent.

87 Although many allegations/assertions were made against the Respondent, many of them, even if made out, would not of themselves have constituted professional misconduct. However, we are of the view that in all the circumstances, and taking the evidence as a whole, and remembering that the Respondent was at all times an employee, the assertions made against her have been answered.

Costs

88 The Law Society applies for an order pursuant to Legal Profession Act 2004, Section 20(3), that the Respondent pay its costs of these proceedings. That Section provides, relevantly, that the Tribunal may make orders for costs and that such orders may be for a specified amount or an unspecified amount, if for an unspecified amount may specify the basis on which the amount is to be determined and also may specify the terms on which costs must be paid.

89 Both parties have sought an opportunity to make further submissions as to costs in the light of whatever decision this Tribunal hands down. However, the current view of the Tribunal, but subject to any submissions the parties may wish to make, is that there should in fact be no order as to costs.

90 However, in its orders (below) the Tribunal proposes to reserve the right of the parties to agitate any claim for costs provided that any such claim is notified to the Tribunal within 28 days of the date of this decision.

Orders:

1. The application for an order under Legal Professional Act 2004 Section 18(2) prohibiting any law practice from employing or paying the Respondent in connection with the legal practice engaged in by the law practice, without approval under Section 17, is dismissed.

2. Unless either party moves the Tribunal within 28 days of the date of this decision in or to the effect that a costs order should be made, the order of the Tribunal will be that there be no order as to costs.