Ainsley & Ainsley (No 2)

Case [2022] FedCFamC1F 455

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ainsley & Ainsley (No 2) [2022] FedCFamC1F 455

File number(s): WOC 455 of 2019
Judgment of: REES J
Date of judgment: 29 June 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother to discharge the Independent Children’s Lawyer (“ICL”) – Court not persuaded the ICL acted inappropriately – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 10F, 10J

Evidence Act 1995 (Cth) s 140
Cases cited:

Johnson v Johnson (2000) 201 CLR 488

Knibbs & Knibbs [2009] FamCA 840

Lim & Zong [2021] FamCAFC 165

Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

P and P (1995) FLC 92-615

T & L (2000) FLC 93-056
Division: Division 1 First Instance
Number of paragraphs: 86
Date of hearing: 27 June 2022
Place: Sydney
Applicant: Litigant in person
First, Second, Third & Fourth Respondents: Did not participate
Counsel for the Independent Children’s Lawyer: Mr Cook
Independent Children’s Lawyer: Bowral Legal

ORDERS

WOC 455 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS AINSLEY

Applicant
AND:

MR AINSLEY

First Respondent

MS RANDALL

Second Respondent

MS FENNEL (and another named in the Schedule)

Third Respondent

BOWRAL LEGAL
Independent Children’s Lawyer

ORDER MADE BY:

REES J

DATE OF ORDER:

29 JUNE 2022

THE COURT ORDERS:

1.That the application of the mother to discharge the Independent Children’s Lawyer is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Ainsley & Ainsley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

  1. Proceedings relating to the parenting arrangements for X aged seven years and Y aged six years, have been on foot since 2019. The parties to the proceedings are the father, Mr Ainsley; the mother, Ms Ainsley; the paternal grandmother and the maternal grandparents. An Independent Children’s Lawyer (“ICL”) has been appointed for the children.

  2. On 12 December 2019, orders were made by a judge of the Federal Circuit Court (as it then was known), placing the children in the care of the paternal grandmother where they remain. The matter is being prepared for the substantive hearing but those arrangements have been paused so that this application can be determined.

  3. The present application is the mother’s application to discharge the ICL, which is opposed.…

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AGLC
Ainsley & Ainsley (No 2) [2022] FedCFamC1F 455
Case
[2022] FedCFamC1F 455
Decision Date

CaseChat Overview and Summary

Ainsley & Ainsley (No 2) involved a dispute between a mother and the Independent Children's Lawyer (ICL) in family law proceedings concerning the welfare of her children. The mother alleged various misconduct by the ICL, including fabrication of evidence, failure to communicate, neglect of the children's wellbeing, and collusion with the paternal family. The court was tasked with determining the validity of these allegations and deciding whether the ICL should be discharged.

The primary legal issue before the court was whether the ICL had acted appropriately in their role, particularly considering the allegations of misconduct made by the mother. The court had to assess the mother's claims against the principles guiding the role of the ICL, which include acting in the best interests of the child, ensuring impartiality, and minimising trauma to the child. The court also had to consider the mother's lack of legal representation and the procedural fairness in handling the allegations.

The court found that the mother's allegations did not provide sufficient evidence to support the claims of misconduct against the ICL. The court examined the mother's affidavits and the accompanying documents but could not find compelling evidence to substantiate the allegations. Consequently, the court rejected the mother's request to discharge the ICL and noted that the allegations would be properly assessed during the substantive hearing, where the evidence could be tested more thoroughly. The court also highlighted that the ICL's submissions would be treated equally with those of other parties.

The court's final orders did not include discharging the ICL but did acknowledge the importance of a fair and thorough examination of the evidence in the substantive proceedings. The court reminded all parties that the documents considered in interim determinations would not be admissible unless properly tendered. This decision underscored the importance of adhering to legal principles and ensuring a fair process, especially in sensitive family law matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In these reasons I have attempted to group the specific complaints under those four headings.FABRICATION OF EVIDENCE The mother states, in her Letter of Urgency:That the ICL has conducted in authorised practice to further falsify mislead and abuse her position of power to manipulate or tamper with the evidence in the subpoena pocket of the ICL’s Tender Bundle. (As per the original) In the same document, she states, “the ICL fabricated a statement that the Mother [said] ‘I am going to kill my children or run away’”. The mother states that, “the ICL has fabricated communications with the Department…”. I have assumed that the reference to “the Department” is a reference to the Department of Communities and Justice” (“DCJ”) which has a history of involvement with the subject children and with a two year old child of the mother who is not the subject of these proceedings.FAILURE TO COMMUNICATE WITH THE MOTHER, HER LEGAL REPRESENTATIVES AND MATERNAL FAMILY The mother asserts that the ICL refused to communicate with her or her previous legal representatives for a year. Further she asserts:Not only as a consequence of the earnestness of the bruising contest but more so because of the plenitude of Applications this matter where the ICL has not seeked any resolution in fact disregarded all correspondence with the Maternal side. Where there has been evidence of psychological distress.(As per the original) NEGLECT FOR THE WELLBEING OF THE CHILDREN The mother asserts that: The children are at critical levels of distress resulting in attempts of self-harming, medication for sedation, alarming disclosures, concerning images, text messages, and attempts to run away. The mother further asserts:The ICL has had the benefit of this knowledge and refuses the expert to be advice of this material. Further she asserts:The ICL ignored the children’s distressed, and refused the pending expert report before subjecting the children to another traumatic psychological distressing visit.(As per the original)CONSPIRING WITH THE PATERNAL FAMILY Broadly, the mother asserts that the ICL “was in the arena for the father and the paternal grandmother”. She asserts:The Paternal Grandmother and the ICL have conspired and formed a submission stating that the Department made contact in June, in relation to a Child not subjected in these proceedings. They have provided evidence to confirm this was falsified and fabricate evidence.(As per the original)THE LAW Before dealing with the mother’s specific complaints it is useful to understand the principles which will guide this determination. In the matter of P and P (1995) FLC 92-615, the Full Court stated that the role of the ICL (then called the “Separate Representative”) was to:1. Act in an independent and unfettered way in the best interests of the child.2.Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.3.Inform the Court by proper means of the children’s wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.4.Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.5.Test by cross examination where appropriate the evidence of the parties and their witnesses.6.Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.7. Minimise the trauma to the child associated with the proceedings.8. Facilitate an agreed resolution to the proceedings.

Decision

Reasons for decision

I do not accept the mother’s assertion that the ICL has conspired with the paternal family.CONCLUSION In the examples given above, I have not attempted to canvass every one of the mother’s allegations, but I have read her affidavits sworn 3 May 2022 and 12 May 2022 and some 327 pages of documents which were exhibited to her affidavit sworn 12 May 2022. I have not been able to find any more persuasive evidence than that which has been set out above. I am not persuaded, on the evidence before me, that the ICL has acted inappropriately and I do not propose to make orders discharging the ICL as sought by the mother. I am conscious that this matter has been dealt with previously on an interim basis only and that there has not been any opportunity to test the evidence, and particularly, to make a proper, forensic examination of the evidentiary weight to be given to the material produced on subpoena. That opportunity will be given in the substantive hearing, if the material is admissible and relevant. I am also conscious of the fact that the mother does not have legal representation. The ICL’s submissions carry no greater weight than the submissions of any other party to the proceedings. The evidence which the ICL will seek to adduce will be treated in the same manner as that of the other parties. The documents and material which have been considered in earlier, interim determinations will not be in evidence before me unless those documents are tendered before me. I will determine the competing applications having regard to the evidence before me in the substantive proceedings.

Ratio Decidendi

Legal Principle Established

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