source : the age
A NSW barrister has admitted giving false information in a family law fight with his former partner by claiming he received a $70,000 inheritance when he had received almost $230,000.
In a decision last month, the NSW Civil and Administrative Tribunal found the barrister, whose identity cannot be revealed for legal reasons, guilty of professional misconduct over a series of failures in the case.
The NSW Bar Association launched the disciplinary proceedings following a complaint by the barrister’s former partner to the Legal Services Commissioner.
The woman filed family law proceedings against her ex-partner in 2017 in the Federal Circuit and Family Court after they separated in late 2016.
In an affidavit filed in the family law dispute in 2017, the barrister said he had received a $70,000 payment in 2012 from the estate of his late mother.
In 2020, lawyers acting for his ex-partner queried that sum, and noted that a document relating to the administration of his mother’s estate was inconsistent with his 2017 affidavit. It prompted him to file a new affidavit.
‘[The] amount the respondent disclosed in the 2017 affidavit was vastly less than the actual amount he received.’
NSW Civil and Administrative Tribunal
NCAT said the barrister had admitted “the statement made by [him] … in the 2017 affidavit, that he received $70,000 from his mother’s estate in 2012, was false”.
“As [he] admitted … in 2010 he received the sum of $229,028.25 from her estate.”
The tribunal said it did not need to make a finding about whether the 2017 statement about his inheritance was “deliberately false”. However, it said his failure to make full, frank and accurate disclosures was serious.
“In cross-examination the respondent could not recall why he had put the false information in his 2017 affidavit,” the tribunal said. He said he did not refer to any material or check documents at the time.
‘Unimpressive witness’
The barrister “appeared to be deliberately evasive in his answers”, the tribunal said.
“He often responded to questions with answers such as ‘if you say so’ … and frequently used the expression ‘I don’t recall’.
“We found him to be an unimpressive witness and did not find him to be candid in his responses.”
‘Not a momentary failure’
In their decision, NCAT senior members Elizabeth Bishop, SC, and Mark Tedeschi, KC, and general member Elayne Hayes said the barrister was “grossly careless” about the accuracy of the statement he made under oath.
“We note the amount the respondent disclosed in the 2017 affidavit was vastly less than the actual amount he received.”
This was “not a momentary failure”, the tribunal said, but a failure that was “ongoing for a considerable period of time, only corrected three years later”.
Court order ‘deliberately disregarded’
The tribunal said the barrister “deliberately disregarded” a court order later in 2020 that required him to disclose financial documents, including records revealing how he spent his inheritance.
“His conduct is inexplicable as a barrister with … [decades of] experience … A breach of an order of the court can constitute contempt of court. It is a very serious matter.”
He “showed a complete disregard for orders of the court and his obligation as an officer of the court”, the tribunal said.
The tribunal heard he had a separate bank account from his former partner, meaning she would not have been aware of how the money was spent.
Breach of undertaking
The barrister also breached an undertaking not to encumber the Sydney home where the family had lived, the main asset of the relationship, until the dispute between the pair was finalised.
He obtained a mortgage over the property in 2019 and drew down more than $330,000, but did not disclose the mortgage until 2020.
The Federal Circuit and Family Court had released him from the undertaking in 2018 for the limited purpose of complying with a court order to pay his ex-partner a sum of money.
However, the tribunal said the mortgage was “purely for the personal benefit” of the barrister because he said he “needed to pay debts, including substantial debts to chambers and for legal fees”.
His “overall approach to financial arrangements at that time demonstrated a loose and cavalier attitude … towards his legal obligations during the court proceedings”, the tribunal said.
NCAT concluded the barrister’s conduct “justifies a finding that he is not a fit and proper person to engage in legal practice” and found him guilty of professional misconduct.
It is a criminal offence under the Family Law Act to publicly disclose details of proceedings if the identity of a party or witness is revealed. The barrister’s identity is also protected by a separate non-publication order in the NCAT proceedings.
Disciplinary orders will be made by NCAT at a later date. Professional misconduct is not a criminal offence and the findings were made to the civil standard of the balance of probabilities.
However, the finding can lead to serious disciplinary orders.
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