Ainsley & Ainsley (No 2)
[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:
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.
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.
The present application is the mother’s application to discharge the ICL, which is opposed. The other parties have all indicated that they do not wish to be heard and have been excused from participation in this hearing.
The mother has filed a Summary of Argument on 13 May 2022 and relies on two affidavits sworn by her on 12 May 2022 and on 3 May 2022. She also provided a Letter of Urgency filed on 13 May 2022.
The ICL has filed written submissions dated 12 May 2022.
Four main complaints are made by the mother in relation to the ICL throughout her
Summary of Argument and Letter of Urgency (the complaints are broader in her affidavit):
·Fabrication of evidence by the ICL
·Failure by the ICL to communicate with the mother, her legal representatives and maternal family
·Neglect by the ICL for the wellbeing of the children
·The ICL’s conspiring with the paternal family
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.
Their Honours added:
These statements are of general application to all cases and we are in broad agreement with them.
We would add that for a separate representative to adequately fulfil those roles, it is highly desirable that he or she should be appointed at as early a stage in the proceedings as possible, usually at the first directions hearing. In cases such as this one, the appointment should usually be made earlier, if this is possible.
We also consider that it should usually be the role of counsel for the separate representative to call the expert evidence, although not be limited to examination in chief of such witnesses. This does not, of course preclude the parties from calling expert evidence of their own in appropriate cases.
…
We stress that the above discussion of the role of the separate representative and his or her duties and the circumstances in which a next friend is to be appointed are intended by way of guideline only and there may well be cases where a different approach is warranted. We trust however, that it will be of assistance in dealing not only with these matters, but all cases in which a separate representative is or should be appointed.
As can be seen from this formulation, the role of the ICL does not extend, as the mother seems to contend, to a pro-active protective role.
In broad terms, the parents have an obligation to make such applications to the Court as are necessary to protect the child. The Court has the obligation of making such orders as are in the child’s best interests. The obligation of the ICL is to ensure that the Court has all of the material evidence for its consideration when making such decisions.
The principles to be applied in an application to discharge an ICL have been considered in a number of cases.
It is not in dispute here that the Court has the power to discharge an ICL.
In T & L (2000) FLC 93-056, Chisholm J summarised the law as follows:
At least in general, then, it seems that the critical question in considering an application to remove a child’s representative is whether the representative is likely to carry out his or her task properly. It is not necessary to attempt to state generally the circumstances that might cause the Court to find that child representative is unlikely to do so. Given the issues in the present case, it is sufficient to say that it might well be appropriate to remove a child representative where the evidence showed that he or she had deliberately misled the court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child representative to “act in an independent and unfettered way in the best interests of the child”.
It is appropriate to note in this connection that it is frequently part of the child representative’s role to advance propositions which will be seen by one party as contrary to that party’s interests and/or contrary to the child’s interests. Differences of views are of course inevitable in litigation. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove a child representative merely because a litigant has taken the view that the child representative is acting contrary to that litigant’s position, or (from that litigant’s point of view) contrary to the child’s best interests. I agree with the child representative’s submission that it is important to avoid a situation in which the child representative “is a captive or the most vocal, litigious or dissatisfied parent or party”.
Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045, referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.
The reasons that is so, as identified by His Honour include:
The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour.
In Knibbs & Knibbs [2009] FamCA 840, Murphy J, agreed with the statements of Holden CJ and stated:
43.Once it is understood that the ICL’s primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances - provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.
44.Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
45.In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).
In Lim & Zong [2021] FamCAFC 165, the Full Court stated:
21.A number of authorities have considered the removal of an Independent Children’s Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children’s Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
•Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the Court as does any licenced legal practitioner;
•On occasion, the Independent Children’s Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
•Inevitably the role of the Independent Children’s Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take;
•It is certainly not the case that, even if an Independent Children’s Lawyer does make a mistake, the Court will necessarily accede to an application to have them discharged. Significantly more than that is required;
•It is inevitable that the high standards of competence which the Court expects of Independent Children’s Lawyers are not always met. Independent Children’s Lawyers are, like anybody, liable to human frailty;
•A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.
22.I should also note that the Court has published guidelines for the conduct of Independent Children’s Lawyers. Relevant to this application they provide that the Independent Children's Lawyer must, if satisfied that a particular course of action is in the best interests of the child, make a submission to the Court suggesting the adoption of that course. That, of course, is merely a repetition of the duty imposed by s 68LA(3) of the Act.
In so far as there may be a divergence of opinion as to whether an ICL should only be removed if the Court finds actual bias in his or her conduct of the case, or whether a finding of the apprehension or perception of bias is sufficient, I am of the view that either actual or perceived or apprehended bias is sufficient.
Whilst I accept that the mother perceives that the ICL is biased, the test is objective and not subjective. The principles, which have developed in the context of applications for judges to be disqualified, apply equally to such applications relating to an ICL.
In the High Court decision of Johnson v Johnson (2000) 201 CLR 488 at 492, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
That formulation has been followed in later decisions.
In this context I propose to consider the mother’s application to discharge the ICL by reference to the evidence she adduces in relation to each category of complaint.
FABRICATION OF EVIDENCE
The allegation by the mother that the ICL has falsified and fabricated evidence is a very serious matter and goes to the heart of the ICL’s obligations as a legal practitioner and an officer of the Court. If it were found to be true, the ICL would be subject to disciplinary proceedings and almost certainly lose her right to practice as a lawyer.
Having regard to the gravity of the allegations, s 140 of the Evidence Act 1995 (Cth) must be applied. That section is set out below:
140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
The mother’s allegations are made in the form of general assertions and not supported by evidence which can be found in the documents upon which she relies. However, I propose to set them out.
At paragraph 61 of her affidavit sworn on 12 May 2022, the mother deposed:
On the 8 February 2022, the ICL subpoenaed the Mothers medical records, no other medical records were subpoenaed for the Paternal side.
I am aware from the affidavit that the mother has a lengthy and complex medical history. I am not aware of a relevant medical history in the paternal family that is relevant to the issue of where the children should live. The purpose of a subpoena is to bring relevant material before the Court. I have not been provided with a reason why the medical history of the paternal family is relevant. Counsel for the ICL stated that an examination of the subpoenas that were issued will show that subpoenas were issued for the records of the maternal and paternal family and for the children. However, I am not in a position to determine whether that is so.
In any event, this is not an allegation that the ICL falsified evidence.
At paragraph 66 the mother deposed:
ICL has provided false submissions, claims and has done all things in the attempt to allow continuous abuse to occur to the children.
There is no evidence in support of that assertion.
At paragraph 80 the mother deposed:
The ICL hindered, manipulated and falsified subpoena material.
There is no evidence in support of that assertion.
At paragraph 102 the mother deposed:
The ICL has submitted her submissions and has caused the cumulative effect to create a ‘materially distorted view of the case that the Mother had mental health issues and that the Mother coached the children. Without any evidence concerning Mental health and cherry-picked out of the subpoena material.
(As per the original)
There is no evidence in support of that assertion.
At paragraphs 126 and 127 the mother deposed:
On 19 July 2019, after orders were made, the ICL submitted her case outline. Please see the following information below to show falsified documentation.
Paragraphs 7, 28, 87, 56, 57 and 59 are untrue and the ICL has modified them. Other material will confirm that the ICL has changed the evidence. O Group Subpoena pocket, information declared by the ICL untrue. Medical evidence will confirm that this is false information.
(As per the original)
Further allegations of the ICL’s falsifying or misrepresenting documents produced on subpoena are found at paragraphs 128 to 135.
In order to determine those allegations, it would be necessary to have the ICL’s Case Outline in evidence and also to have each of the subpoenas to which the mother refers so that the original document produced can be compared to what I assume to be the ICL’s summary. That evidence is not before me and I am unable to accept that this allegation is proven.
One instance of the ICL’s alleged falsifying of evidence is the mother’s allegation that the ICL fabricated an assertion that the mother had threatened to kill herself and the children. Material produced by the police on subpoena in the proceedings in the Federal Circuit Court (as it then was known) includes a notification to the police on 2 October 2019 by a named supervisor at TT Childcare to the effect that the mother made those statements. The mother is in possession and will rely on other material that suggests the statement was not made. However, the fact that there is conflicting evidence does not demonstrate the contention that the ICL fabricated the evidence.
The mother represents herself in this application and she has not substantiated her allegation that the ICL has falsified or misrepresented evidence produced on subpoena. However, in the substantive hearing, she will have the opportunity to tender any evidence from material on subpoena or elsewhere that she contends is relevant and I will be then in a position to read that material for myself, rather than relying on a summary.
FAILURE TO COMMUNICATE WITH THE MOTHER, HER LEGAL REPRESENTATIVES AND MATERNAL FAMILY
At paragraph 6 of her affidavit the mother deposed:
The ICL has breached several Family Court Rules under the section that refused to respond to any concerning correspondence concerning the children for 12 months.
Other than the letter of 7 July 2021, to which reference is made later in these reasons, the mother does not specify to what correspondence the ICL did not respond.
At paragraph 78 of her affidavit the mother deposed:
The ICL refused to respond to correspondence by the Mother despite numerous attempts.
Again, other than the letter of 7 July 2021, to which reference is made later in these reasons, the mother does not specify to what correspondence the ICL did not respond.
There is no evidence upon which a finding could be made that the ICL has failed to communicate appropriately with the mother or her legal representatives.
NEGLECT FOR THE WELLBEING OF THE CHILDREN
I propose to treat this allegation as a general allegation that the ICL has failed to act in the children’s best interests.
Although the mother makes a number of assertions in this regard, she does not provide evidence to support those assertions.
Such assertions can be found at paragraphs 45, 54 (although the letter dated 21 April 2021, to which reference is there made, is not annexed), 101, 104, 106, 111, 112, 114, 118 and 142 of her affidavit.
In relation to the mother’s assertion that the ICL frustrated the mother’s attempts to get medical attention for the children, and Y in particular, the ICL submits that in 2019 she sought orders restraining the mother from taking the children to medical practitioners without the consent of the father and the paternal grandmother.
The material provided in the mother’s affidavit is insufficient for any determination to be made about whether the ICL’s position was appropriate.
The mother, at paragraph 59 asserts that the ICL “never attempted to re-establish contact between the Mother and the Children”. The material provided in the mother’s affidavit is insufficient for any determination to be made about whether, in fact the assertion is accurate and, if it is accurate, whether the ICL’s actions or inactions were appropriate.
At paragraph 119 of her affidavit the mother asserts that the ICL “sabotaged” the mediation and “instructed the Mother to admit that she made false claims, or the Mother will never see the children”.
There is no evidence about where or how the mediation was arranged. If the mediation was “Family Dispute Resolution” as defined in s 10F of the Family Law Act 1975 (Cth) (“the Act”) then the confidentiality provisions of s 10J of the Act would apply.
If the mediation was not in accordance with the requirements of s 10F of the Act, then generally, evidence of what was said in settlement negotiations is not admissible in Court.
This allegation is not made out.
CONSPIRING WITH THE PATERNAL FAMILY
The mother asserts that:
·The ICL’s children attended the same school as the paternal grandmother’s godsons, graduating in the same year.
·The receptionist at the ICL’s law firm is a friend of a person who is a friend of the paternal family.
·The ICL’s daughter applied unsuccessfully for a job with the mother’s organisation.
I do not accept that any of these matters raises doubt about the independence and objectivity of the ICL.
On 7 July 2021, the mother’s then solicitor wrote to the ICL raising the issue of the father’s interaction with the ICL’s legal firm on Facebook. The solicitor stated:
Further it is noted that the Father frequently “likes” posts on your professional Facebook page. In circumstances where my client had previously interacted with the LinkedIn pages of the solicitor for the Father and the solicitor for the Paternal Grandmother, these matters were immediately raised and addressed. The “likes” still exist on your posts and raise further questions in my client’s mind about your independence…
A number of pages from the ICL’s firm Facebook were attached to the affidavit, showing those pages had been “liked’ by the father. The pages were of the nature of general advice and had no connection to the proceedings. I do not accept that the fact that the father “liked” the posted information evidences any alignment of the ICL with the father.
The mother deposed:
The ICL has been in contact with the paternal side outside of the proceeding. The ICL included various members of her family and friends through social media channels to attack the Mother alongside the Paternal Family.
There is no further evidence to support this assertion. Absent copies of the materials to which the mother refers I am unable to find that the ICL has acted as she alleges.
The mother asserts, at paragraphs 76 to 79 of her affidavit sworn 12 May 2022 that the ICL has “dismissed, modified and played down” behaviour by the paternal family; that the ICL praised the father and that the ICL only relisted the matter on behalf of the father. Again she provides no evidence to support those assertions.
At paragraph 113 the mother deposes:
In circumstances where the ICL has supported the Paternal Family by sending continuous threatening and psychopathic letters attempting to force the Mother to commit suicide, not even considering the other child in the Mother’s care, or the impact that would have on the children.
If it is intended to assert that the ICL has sent such letters, then the letters should have been in evidence, annexed to the mother’s affidavit. If it is asserted that others sent the letters then there is no evidence that the ICL has supported or encouraged such behaviour.
At paragraph 115 of the affidavit, the mother deposed:
The ICL has protected and continued to support and advocate for the Father and the [paternal grandmother], disregarding that they have informed the Children that their Mother is going to die.
I accept that the ICL has, from time to time, made submissions that supported the position of the paternal grandmother but I have not been directed to any objective evidence that the children have been told, either by her or their father, that their mother is going to die.
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.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 29 June 2022
SCHEDULE OF PARTIES
WOC 455 of 2019 Respondents
Fourth Respondent:
MR MAGNUS
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