Don't mention it
Saturday, November 5, 2016
Justinian

Barrister wants his name and critical paragraphs removed from FCC judgment ... Donors' Day ... Application for suppression of the juicy bits ... Sperm donor parenting dispute ... Naaman Zhou reports 

THE Federal Circuit Court has rejected an application from Sydney silk David John Lloyd to prevent publication of parts of a judgment critical of his conduct in a family law case. 

Lloyd claimed that if he was identified in the judgment as counsel for the applicant his reputation in the field of family law would be detrimentally affected. He also wanted the name of his instructing solicitors removed plus two paragraphs from the judgment. 

Judge Robyn Sexton dismissed the application.  

Background 

Lloyd represented  a Mr Oxbourne in parenting proceedings concerning his nine-year-old old biological child. Oxbourne had been chosen as a sperm donor by the child's mothers, Ms Ewans and Ms Rose, who had lived in a same-sex relationship for 27 years.  

Sexton J said the case had challenging emotional complexities and sensitivities. 

"The central difficulty was identifying how the biological father's relationship with the child was to be managed and developed into the future, in circumstances where at conception the parties envisaged that the child would be raised in a household with two mothers: a non-traditional family structure." 

The judge singled out Lloyd's behaviour during the courtroom tussle as "sarcastic, unnecessary and unhelpful". 

The two paragraphs from her reasons that he wanted censored, read: 

"69.  I accept the mothers' solicitor's submission that the manner in which the applicant conducted his case did not alleviate the mothers' fear or enhance the prospects of the mothers supporting [the child] spending time with the applicant, even limited time. Counsel for the applicant referred to the applicant as 'the father' throughout the hearing, which the mothers found affronting, distressing and insensitive, and I find served to exacerbate the mothers' fears and resistance to face to face time. The mothers do not regard the applicant as a father to their child, but rather as a 'sometimes person' who donated the seed needed for X's conception. Counsel said: 

Counsel:  You don't see him as any father, do you?

Mother (first respondent):  He's not a father to my child ... 

Counsel:  I'm going to continue to call him 'the father' ...  

Mother (first respondent):  I understand. 

70.  I also found counsel's at times sarcastic style of cross examination unnecessary and unhelpful in the difficult circumstances of this case. For example, he asked the first respondent whether she would prefer Father’s Day to be re-named Donor's Day. I found his submission that the mothers are 'insular', 'narrow-minded', 'belligerent' and 'appalling' role models particularly unhelpful in a case in which his client had consented to an order that the child live with them." 

Ms Rose said in evidence that she felt that there had been a deterioration as a result of these proceedings and she had been hurt because of the "terminology" that had been used. 

The need for careful advocacy 

Lloyd submitted that "the paragraphs unnecessarily refer to me and have the effect if published of detrimentally affecting my reputation in family law". The criticisms "could not be said to be in the interests of justice nor the open administration of the court".  

Michael Kearney SC, for Lloyd, submitted that the criticisms advanced in the reasons were not the subject of any invitation to address, and in any event, it would not have been appropriate for the applicant to have "become an advocate in his own cause". 

Judge Sexton said that in family law "the manner in which the case was conducted was relevant to the determination of the proceedings". 

Conduct, she said, "will always be central to careful advocacy in children's cases: in almost all parenting cases the litigants will have to maintain an ongoing relationship (of some form) for the parenting of the children".  

Counsel for the mothers said it was "not particularly helpful" that Lloyd had referred to the two women so negatively.  

"These parties have become further polarised by these proceedings, not brought back together."  

Suppression 

Lloyd's argument was that there was scope for a suppression order under both the Federal Circuit Court Act and the Family Law Act

It was argued that section 15 of the Federal Circuit Court Act extended to allowing for suppression orders "to prevent any abuse of or interference with its processes". 

HH shot this down.  

"Counsel does not refer to any case in the Federal Circuit Court where such an order has been made under s.15 and my research suggests that no such case exists. The authorities to which counsel refers to ... [are not] orders for the non-publication of judgments."  

It was also submitted for Lloyd that s.102PF of the Family Law Act allowed for suppression orders that are "necessary to prevent prejudice to the proper administration of justice".  

HH said Lloyd, "argues that [his] reputation in family law will be affected ... [but] does not explain how". 

"The test is not whether [it is] in the interests of justice or the open administration of justice. The test is whether the order for suppression and non-publication is 'necessary' to prevent prejudice to the proper administration of justice." 

The bar is higher than "mere embarrassment" or a damage to reputation that is not explained or quantified. 

Furthermore, the judge said that Lloyd would not have been protected by the legislative requirement to restrict publication of the identity of parties to family law proceedings.  

"I find it noteworthy that the term 'person associated with any party' does not include a party's legal representative in s.121(1)(b). Whilst s.121(1) does not expressly exclude a legal representative of a party, the publication of a party's legal representative's name is routine in the publication of family law decisions."  

The broad intention of the provision is "to protect the identity of parties, witnesses and particularly children", not lawyers who cop flak for their sarcasm. 

The judge delayed publication of her reasons until the appeal period had passed. 

See: Lloyd v Oxbourne & Ors  

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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