Thursday, 7 May 2015

When Selfish Is The Primary Focus

Daniel Soames answered the telephone. It was his instructing solicitor Toussaint Wilberforce.

“We have a family law case in Sydney in two (2) days, Mr Soames. I thought I would ring you and confirm that all appears to be in order here. How are things with you?”

“All appears to be in order here as well, Mr Wilberforce”, Soames replied.

Wilberforce: “You will recall, Mr Soames, the mother was living with the father in the Central Coast area of New South Wales. They had two (2) children in their relationship. The mother left the marriage and the Central Coast with the two (2) children to live in Wollongong with her then boyfriend. The four (4) of them then moved to Queensland to live. That relationship did not last and the mother subsequently moved to Rockhampton with her current partner and his two (2) children. The children of the marriage are now settled in Rockhampton, attending school and doing well.”

Soames: “Yes, Mr Wilberforce, I recall.”

Wilberforce: “The Independent Children’s Lawyer agrees with the recommendation of the Family Report writer that the children should remain living with the mother in Central Queensland. The Family Report writer concluded that the children had finally achieved a degree of stability in their lives, although it was limited to that point. Accordingly on the available evidence staying in that environment would be the preferred option for the well-being of the children.”

Soames: “That is a handy position in which to be, Mr Wilberforce. But the attitude of the Judge is the most important factor and that remains unknown at this juncture.”

Wilberforce: “Quite so, Mr Soames, and I sense that our welcoming may not be all that warm in the Court in Sydney.”

Soames: “I share your assessment and concern.”

Wilberforce: “I will see you at the airport tomorrow.”

Soames: “Yes, Mr Wilberforce, tomorrow, at the airport.”

The telephone conversation then ended.

The Airport
When Daniel attended the airport he proceeded through airline security as is normally the case. Quite unexpectedly on this occasion he encountered his friend Conchita. She now worked for airline security and after initial salutations, she spent about ten (10) minutes regaling him with stories of people travelling who are seemingly cheating on their partners. Several of them were people she knew in one form or another.

Their respective work demands meant they could not continue their discussion and so it ended. Daniel proceeded through the remainder of airline security and then went off to meet his instructing solicitor and travelling companion, Toussaint Wilberforce.

Soames shared the news of meeting Conchita with Wilberforce

“What a handy resource she may prove to be in the future”, Wilberforce said.

Soames replied, “Not everything is about work, Wilberforce. However I agree him that Conchita may prove to be a useful source of information in the future.”

That discussion filled part of the time whilst they waited until they could board their plane. The rest of the time did not involve any significant discussion of their case, due to the public nature of their location.

On The Plane
Once on the plane Soames and Wilberforce were seated together and next to Wilberforce was a man who was very keen to chat. Once he found out Wilberforce was a solicitor who practiced in family law, his travel companion was very keen to tell his story of a woman he knew who was on a music podcast. According to the travel companion if you listened to that particular music podcast, the woman co-host progressively revealed her divorce and effectively bragged about her affair with her two co-hosts.

During the telling of the story Soames said to Wilberforce, “Work rarely seems to stop for you”.

Wilberforce replied, “The information and knowledge gained can be useful in the future, Soames.”

Soames: “Point taken” and they smiled broadly at each other.

When the travel companion finished his story, there was little other conversation between him, Wilberforce and Soames.

Soames and Wilberforce spent the remainder of the flight discussing minor matters. It was a pleasant and otherwise uneventful flight.

When Soames and Wilberforce landed in Sydney they went straight to their hotel, checked in and proceeded to their respective hotel rooms. Once settled in his room, Soames commenced preparation for the trial the next day.

The Trial - Day 1
At the end of the first day of the trial, Soames reflected upon its progress. All things considered, the evidence proceeded as he thought it would and no one took an unsurprising approach. The Judge was somewhat more angry at his client, the mother, than he had anticipated, but not so much as to need to fundamentally revise their approach to the trial.

Soames and Wilberforce briefly returned to their respective hotel rooms after the day in Court and then met again for dinner that evening. During dinner, Soames and Wilberforce discussed the case and how the trial was progressing.

Soames: “Mr Wilberforce, I have considerable disquiet about the behaviour of the mother. Rewarding it by allowing the children to remain living with her seems an uncomfortable, perhaps even unsavoury, result.  There were many valid criticisms of the father which were canvassed today during the trial and they counted against the children living with him. However I am not sure the new man in the life of the mother is a significant improvement. He seems to be the same type of man as the father we have been criticising, only nicer.”

Wilberforce: “Nicer, for now, Soames. I expect he will become like the father in time to come.”

Soames: “That is hardly a comforting prospect for the children in this mess.”

Wilberforce: “Indeed Soames, but it is the way these cases invariably unfold.”

Soames: “In fact the more I see of him, the more I tend to not like the new male partner of our client. Happily there has been no need for him to give evidence in these proceedings.”

Wilberforce: “He has also failed to ingratiate himself with me and I have spent considerably more time with him than you have done.”

Soames: “Some of the bad behaviour of the mother seems to have been stemmed since meeting this chap. She has remained living in Rockhampton and the children are now settled in Rockhampton, attending school and doing well. Perhaps he has some redeeming features.”

Wilberforce: “If the new man is responsible for that apparent stability, perhaps he does have some redeeming features.”

The dinner continued in an otherwise uneventful fashion and after about an hour both men then retired to their respective hotel rooms.

The Trial - Day 2
With all the evidence having been completed during day one (1) of the trial, all that remained on day two (2) were final submissions.

In addressing Soames during his final submissions on behalf of the mother, the Judge said, “It was common ground int the trial that the mother had facilitated very little contact between the father and children since they left the Central Coast of New South Wales. That was something to which the father referred often when presenting his case and it was something about which I often criticised the mother.”

“There was significant criticism of the mother that she was not child-focussed in her behaviour and had not been child-focussed for some time. That criticism came from the father, the Family Report writer, the Independent Children’s Lawyer and me.”

“That criticism supported a return of the children to live with the father on the NSW Central Coast.  However it was tempered by the fact that the children had finally achieved some stability in their lives and disrupting that stability to return to the Central Coast would be detrimental to the development of the children. That is a matter of some significance for the case of the mother.”

“Again, the father, the Family Report writer, the Independent Children’s Lawyer and I were all very critical of the mother, that she had organised her life to suit herself and not the children. That meant there was a significant element of rewarding the very bad behaviour of the mother in allowing the children to continue living with her in Central Queensland.”

“You can hardly argue with those criticisms, Mr Soames. I believe I have made it abundantly clear during this trial how unhappy I am about the behaviour of you client, the mother, in this case.”

Soames: “No, Your Honour, I do not propose to argue with the criticisms you have raised and you have made your displeasure with the behaviour of the mother abundantly clear. Notwithstanding all the criticisms of the mother and her behaviour, as Your Honour pointed out earlier, the children have finally achieved some stability in their lives and disrupting that stability to return to the Central Coast would be detrimental to their development. Accordingly in our submission, Your Honour would grant the orders sought by the mother and permit the children to continue living in their present circumstances.”

The Judge retired for approximately two (2) hours to consider her decision.

Opportunity Knocks
As they were waiting for the Judge to make her decision in the trial, Soames and Wilberforce decided to go to a café to get something to eat and drink.

On their way to a café across the road from the Court, Wilberforce grabbed Soames by the arm and spoke quietly in his ear,
“Soames, you know how you told me work never ends for me, well something about which I know a little is occurring right in front of us. The woman in a passionate embrace with the man is known to me. She is from Melbourne and that man she is kissing is not her husband. He is a Sydney local and is known to me too.”

Soames could clearly see the wedding ring of the woman involved in the kiss.

By this stage Wiberforce had used his mobile telephone to take two (2) or three (3) photographs of the embracing couple. Wilberforce maintained his concentration on the couple and noticed they were walking into a nearby hotel. He took more photographs of them entering the hotel and he followed them. Soames followed Wilberforce, without saying a word. When the embracing couple got into the hotel elevator together Wilberforce took his last photograph of them.

It appeared to Soames that the couple were oblivious to the presence of Wilberforce.

Soames and Wilberforce then went to a café and during their meal, Wilberforce told Soames the story of the embracing couple.

Wilberforce: “Some months ago I was retained to assist in a divorce and do a little investigation and advice work for the husband of the woman we saw in the embrace. She travelled quite a bit for work and the husband suspected she was having an affair. I was supplied with some information, including photographs of the wife. It turns out a Sydney solicitor I know also knows the Sydney man involved and he was quite happy to tell me about him. I was told the Sydney man was a giant rat, who likes to promote himself and make fun of other people. He has no loyalty whatsoever.”

“This will be unexpected information for my Melbourne solicitor colleague. I propose to provide it to him as a professional courtesy. I expect he will tell me the wife was in Sydney “on business” or ”working”. The circumstances of the working or business I have seen and photographed may be different to that told to the husband by the wife.”

Soames: “That is very decent of you, Wilberforce. And very alert as well. Experience tells me those are the moments one does not want to miss when it comes to evidence collation.”

Wilberforce: “I thought it warranted an immediate response. I am grateful for your cooperation.”

Soames: “No trouble, Mr Wilberforce. It has added a little more excitement and diversity to our day and our Sydney visit.”

Wilberforce the rang his Melbourne solicitor colleague and told him what had just occurred. The Melbourne solicitor said he made significant notes of the conversation. Wilberforce said he would write to him about it and send the photographs to him when Wilberforce returned to Brisbane.

At the end of the telephone call Soames and Wilberforce discussed the passionate embrace couple a little more and then turned their attention back to their trial.

About twenty-five (25) minutes later the associate to the Judge rang them to tell them she was returning to deliver her judgment. Soames and Wilberforce immediately returned to the Court.

The Decision
Upon her return the Judge gave her decision immediately.

  • “I find that the behaviour of the mother since separation and to date in removal of the children, the manner in which she changed their residence and her failure to assist the children in the maintenance of their relationship with their father was inappropriate and reflects poorly on her understanding of parental responsibility.”
  • “There is little evidence to date of a willingness on the part of the mother to facilitate a continuing relationship between the father and the children.”
  • “There is considerable evidence of the inability of the mother to focus on the needs of the children, preferring instead to focus on her needs.”
  • “The attitude of the mother to the responsibilities of parenthood is very unsatisfactory.”
  • “There have been repeated relocations and her choice of previous partners permitted to live with the children reveal irresponsible parenting.’
  • “An inability to focus on the needs of the children until very recently is apparent.”
  • “Notwithstanding these significant criticisms, the children are settled in their current environment and their relationship with their mother.”
  • “It would now not be in the best interests of the children to require them to relocate to the Central Coast of New South Wales.”
  • “I am not comfortable making orders that seem to reward the behaviour of the mother which has been bad in so many respects, but these orders represent the best interests of the children after proper consideration of all the evidence.”


Court ended quickly after the decision was given. Everyone packed up their material and left the Court room promptly. Soames and Wilberforce went to an interview room nearby and had a short conference with the client and her new partner. They were still holding hands at every opportunity, to the significant annoyance of Soames.

After a brief explanation of the judgment to the client and her new partner, which they both seemed to understand, they announced they had to leave to catch the flight home they had booked. They then thanked both Soames and Wilberforce and left for the airport.

Soames and Wilberforce once again attended the café where they ate during the Judge considering her decision. On this occasion it was an entirely uneventful visit.

From there they caught a taxi to the airport for an uneventful flight home.