Arndale & Kingley (No. 3)
[2011] FamCAFC 128
•15 June 2011
FAMILY COURT OF AUSTRALIA
| ARNDALE & KINGLEY (NO. 3) | [2011] FamCAFC 128 |
| FAMILY LAW - APPEAL - CHILDREN – FAMILY CONSULTANT – where the previous family consultant in the matter had been discharged, the mother raised concerns about the impartiality of a new Court-appointed family consultant – where the mother made an application for a specific psychologist, external to the Court, to be engaged to prepare a family report – whether the trial judge erred in making an order that the Manager of Child Dispute Services appoint a new family consultant to prepare a new family report – no merit found in this ground of appeal. FAMILY LAW - APPEAL – CHILDREN - INDEPENDENT CHILDREN’S LAWYER – where the mother alleged that the Independent Children’s Lawyer would be influenced by previous discussions with, and reports by, the discharged family consultant – whether the trial judge erred in dismissing the mother’s application that the Independent Children’s Lawyer be discharged and a new Independent Children’s Lawyer be appointed – no merit found in this ground of appeal. |
| Family Law Act 1975 (Cth) ss 69ZT and 93A(2) Family Law Rules 2004 (Cth) r 22.22(2)(a) |
| CDJ v VAJ (1998) 197 CLR 172 at 201 to 203 B and R and the Separate Representative (1995) FLC 92-636 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 Bennett and Bennett (1991) FLC 92-191 at 78,266 and 78,267 Wen & Thom [2010] FamCAFC 81 at [57] |
| APPELLANT: | Ms Arndale |
| RESPONDENT: | Mr Kingley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| APPEAL NUMBER: | NA | 117 | of | 2010 |
| DATE DELIVERED: | 15 June 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland and Ainslie-Wallace JJ |
| HEARING DATE: | 31 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 October 2010 |
| LOWER COURT MNC: | [2010] FamCA 968 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Baston (by direct brief) |
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Smith & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Brasch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley (No. 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 117 of 2010
File Number: BRC 1363 of 2008
| Ms Arndale |
Appellant
And
| Mr Kingley |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Arndale (“the mother”) against certain orders made by O’Reilly J on 8 October 2010 in parenting proceedings between the mother and Mr Kingley (“the father”). Those proceedings are in relation to the parties’ child born in December 2006.
The orders of O’Reilly J, in summary, discharged the family consultant, provided for a new family consultant to be appointed by the Manager of Child Dispute Services in Brisbane, refused an application seeking the discharge of the Independent Children’s Lawyer and the appointment of a new Independent Children’s Lawyer, and dismissed paragraphs of an Application in a Case filed by the mother on 30 June 2010. The listing of interim parenting issues was also vacated.
Both the father and the Independent Children’s Lawyer seek that the mother’s appeal be dismissed.
Background
The father was born in 1959 and was aged 51 years at the time of the hearing. The mother was born in 1969 and was aged 41 years at the time of the hearing. The father has an adult child from a previous relationship. The mother has three other children from a previous relationship.
The parties commenced a relationship in 2003 and separated in August 2006.
The parties’ child the subject of the proceedings was born in December 2006 and was aged 3 years at the time of the hearing before O’Reilly J.
Proceedings between the parties in relation to parenting matters commenced in the Federal Magistrates Court in February 2008. Subsequently, on
25 July 2008, they were transferred to the Family Court.
On 7 September 2009 Mr P, family consultant, provided a
Child and Parents Issues Assessment report.
On 30 October 2009 the matter came before Barry J. His Honour listed the matter for a half day hearing on 3 December 2009 and made various orders, including interim parenting orders. His Honour made orders, inter alia, for the parties to attend upon Dr V for the preparation of a psychiatric assessment and for the preparation of a family report by Mr P. His Honour discharged all previous orders and ordered that the child live with the mother and spend three hours per week with the father (with additional visits on Father’s Day, the child’s birthday and Christmas Day), such time to be supervised and occur at a children’s contact centre. Specific orders were made in relation to handover and the mother’s presence during that time should the father’s time take place at the T contact centre. Orders were also made for the father to communicate with the child by telephone.
On 3 December 2009 the matter came back before Barry J. His Honour discharged orders 11 to 30 and 33 made on 30 October 2009 and made further interim orders. Upon the undertaking of the father filed on that date that he not consume alcohol while the child was in his care or for 24 hours prior to such time, his Honour made orders, inter alia, that the child spend time with the father, supervised by the paternal grandmother. The time was to gradually increase from time during the day on a Saturday to each alternate weekend from 9:00am Saturday morning to 4:00pm Sunday afternoon commencing on 6 February 2010. Orders were also made for the father to contribute to the mother’s travel expenses and for the mother and father to undergo random blood tests and urine alcohol and drug screens.
On 30 March 2010 a psychiatric assessment was prepared by Dr V.
On 28 April 2010 Barry J “stood aside” in a matter of Reisner upon the application of the Independent Children’s Lawyer in that case following a discussion in chambers between his Honour and the family consultant Mr P regarding that matter (see Reisner & Reisner [2010] FamCA 473). In the context of that application, it became apparent that the family consultant and Barry J had also discussed “another matter” at that time.
On approximately 29 April 2010 Barry J also stood aside in this matter of his own motion.
On 30 April 2010 Mr P provided a family report in this case.
On 4 May 2010 this case entered O’Reilly J’s docket.
On 12 May 2010 O’Reilly J advised the parties that the matter was now in her Honour’s docket and the family report dated 30 April 2010 was released to the parties.
On 30 June 2010 the mother filed an Application in a Case in which she sought, in addition to interim parenting orders, the following orders:
4. That the Child and Parent Issues Assessment of 7 September 2009 and the Family Report of [Mr P] dated 30 April 2010 be removed from the file and all copies of such documents be recovered from any person to whom such documents have been provided.
5. That a family report be prepared by [Ms B], Clinical Psychologist and that the pariies [sic], [their child and the mother’s three children from a previous relationship] attend upon [Ms B] for the purposes of such a report.
6. That [Ms D] be discharged as the ICL and that the Director, Legal Aid (Queensland) appoint an ICL other than [Ms D].
On 10 August 2010 O’Reilly J “divided” the mother’s application into two parts, listing paragraphs 4, 5 and 6 for hearing on 27 August 2010, with paragraphs 1, 2 and 3 (specifying the interim parenting orders) to be listed on a date to be advised.
The hearing listed on 27 August 2010 was subsequently vacated after the mother was diagnosed with a Grade 4 brain tumour shortly before that hearing.
On 6 September 2010 the father filed an Amended Response to an Application in a Case seeking that the mother’s application be dismissed and interim parenting orders.
On 10 September 2010 May J dismissed the mother’s application seeking an extension of time to appeal the two interim orders of Barry J made in October and December 2009 primarily because there was no utility in such an appeal being heard.
The mother’s Application in a Case came before O’Reilly J on 5 October 2010. Counsel for the mother sought an adjournment of the application, which was opposed. Her Honour ultimately was not satisfied that the mother had given an adequate reason for her request for the adjournment and the application was refused. Counsel for the mother withdrew upon the dismissal of the application for an adjournment.
The application came before O’Reilly J for hearing on 7 October 2010. The mother was unrepresented at this hearing. Her Honour delivered reasons for judgment and made the orders the subject of this appeal on 8 October 2010.
On 4 November 2010 the mother filed a Notice of Appeal against order 5, namely, O’Reilly J’s refusal to appoint a new Independent Children’s Lawyer.
On 24 December 2010 the Independent Children’s Lawyer filed an Application in an Appeal seeking that the hearing of this appeal be expedited.
On 20 January 2011 May J expedited the appeal and ordered that, if possible, the appeal be heard in the week commencing 28 March 2011. Her Honour reserved the question of the costs of the application for expedition to the
Full Court.
On 20 January 2011 May J also delivered reasons for judgment in relation to the costs of the mother’s application for an extension of time dismissed on 10 September 2010. Her Honour dismissed the Independent Children's Lawyer’s application for costs.
The mother filed an Amended Notice of Appeal on 17 February 2011, in which she now appeals orders 4, 5, 6 and 7 made on 8 October 2010.
Reasons for judgment of the trial judge
Although the hearing before O’Reilly J was not a “trial”, for convenience we will refer to her Honour as “the trial judge” in these reasons.
The trial judge commenced her reasons by identifying that part of the mother’s Application in a Case that was before her Honour for determination, noting that paragraphs 1, 2 and 3 in relation to interim parenting matters were set for hearing on 22 October 2010.
Her Honour firstly addressed paragraph 4 of the Application, wherein the mother sought that the Child and Parent Issues Assessment and family report of Mr P be removed from the court file and that all copies of such reports be recovered.
Her Honour recorded that, in effect, the mother sought that Mr P be discharged as the family consultant, in addition to the relief in relation to the reports. Her Honour outlined that there were three bases for this application, namely:
1. a statement attributed to Mr [P] by counsel for the Independent Children's Lawyer in the matter of Reisner (namely that he went to chambers to discuss “another matter”);
2. that Barry J stood aside in the matter of Reisner on the basis of the discussion his Honour had had with Mr [P]; and
3. that Barry J had also stood aside in this matter, inferring that Mr [P]’s reference to “another matter” was this matter.
Her Honour took the view that it was plain that his Honour stood aside in this matter because the reference in the Reisner transcript to “another matter” was this matter. Her Honour said there was “no mystery about it” and “it was not a matter for inference”.
Her Honour thus summarised the circumstances, namely that on or before 28 April 2010 Mr P attended Barry J’s chambers to discuss “another matter”, which her Honour said was “plainly this matter”; Mr P’s report of 30 April 2010 was clearly dated after that attendance in his Honour’s chambers; but it was unclear whether the discussion had taken place prior to Mr P’s earlier report.
Her Honour then commented on the discussion between Mr P and Barry J which her Honour believed to have been an “unfortunate accident, caused perhaps by the peculiar circumstance that the family consultants and judges are housed in the one building”. Although her Honour did not know the circumstances of how the conversation came about, her Honour concluded that there had “been extra curial communication between a judge and a witness”.
Her Honour said it could not be discerned whether Barry J made statements “which may have influenced Mr [P]’s reports so as to taint them”, as it was not known what passed between his Honour and Mr P. Her Honour concluded though that there was a “reasonable apprehension that Mr [P]’s opinion as the family consultant may have been affected by remarks his Honour made in Chambers”.
Her Honour recorded that it is usual for a family report writer to state in their report those persons with whom they have had discussions or have interviewed, and for those persons themselves to be available as witnesses so they can be cross-examined. Her Honour said it would be inappropriate in this case for Barry J to become a witness of fact about what transpired between himself and Mr P, and that it would be inappropriate for Mr P to be cross-examined as to what transpired unless his Honour was also available for cross-examination. Her Honour noted that although counsel for the father submitted Mr P could still be cross-examined, that this was not a complete answer and the mother would be entitled to have his Honour state his version of what happened. Her Honour reiterated that it was undesirable to have a judge of the Court as a compellable witness and subject to cross-examination as “an incident of the general dispatch of the Court’s business.”
Her Honour considered that public perception was important, in that justice must not only be done but be seen to be done. Her Honour said if she did not “order that Mr [P] not continue as a witness in the case there may be public perception not only of sanction of permissible collusion between a judge and a witness”, but that any future judge who hears the matter and may wish to accept Mr P’s opinion would be similarly maligned “so as to bring the justice system into disrepute”.
Her Honour thus said she had no hesitation in ordering that Mr P be discharged as the family consultant in this matter.
Counsel for the father had submitted before her Honour that the removal of Mr P would require a new family consultant to be appointed and thus the child would need to be interviewed again, which would not be in the child’s best interests and would be tantamount to “systems abuse”. Her Honour, however, was satisfied that the child being subjected to a further family report would be unlikely to impact adversely upon her, as she had not previously been interviewed, due to her young age, but rather was observed by the family consultant.
Her Honour determined, however, not to remove Mr P’s reports from the file as sought by the mother, but instead said she would order that the documents be placed in sealed envelopes to be marked “[n]ot to be opened other than by an Order of a Judge.” Her Honour also did not consider that there was any basis for the reports to be recovered from those people who had received copies. However, her Honour indicated she would order that the reports not be introduced into evidence or used for any purpose in the proceedings, and that no reliance be placed upon them by any party, witness or the Independent Children’s Lawyer.
Her Honour then turned to consider paragraph 5 of the mother’s application in relation to who was to prepare the new family report. The thrust of the mother’s application was that the new report should not be prepared by an employee of the Court. The mother proposed that the report be prepared by Ms B, who is a psychologist in private practice.
Her Honour said she would not accede to the mother’s application for the report to be prepared by Ms B for the “simple reason” that a family report should not be commissioned only by one party or for the writer to be the choice of only one party.
Her Honour noted that the Independent Children’s Lawyer’s funding was capped in this case, and may even have run out, and that in the circumstances it was not fair to ask the mother and father to share the costs of a new privately commissioned family report. Her Honour thus ordered that a new family consultant be appointed by the manager of Child Dispute Services and for a new family report to be prepared, to be funded by the Court.
Her Honour said that there could be no valid criticism of an order that a new family consultant be appointed by the manager of Child Dispute Services, even if the new family consultant was a court employee, and that there could be no criticism that any new family consultant would not faithfully perform their role.
Finally, her Honour turned to consider the mother’s application that the Independent Children’s Lawyer be discharged. Her Honour firstly referred to the relevant authorities concerning the role and discharge of an Independent Children’s Lawyer, including, in particular, Lloyd and Lloyd and The Child Representative (2000) FLC 93-045. Her Honour said she agreed with the comments of Murphy J in the recent decision of Knibbs & Knibbs [2009] FamCA 840, namely, that it is not only in cases of actual rather than apprehended impartiality that consideration should be given to removing an Independent Children’s Lawyer. Her Honour considered that it was appropriate to consider the removal of an Independent Children’s Lawyer if actual or apprehended bias is demonstrated. Her Honour commented however (at paragraph 31):
…It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial. (Emphasis in original)
Her Honour considered that the issue of apprehended bias of judges was analogous to the alleged apprehension of bias of an Independent Children’s Lawyer, and her Honour then referred to some of the authorities relating to the former issue.
Her Honour identified (at paragraph 40) that the mother’s grounds for seeking that the Independent Children’s Lawyer be discharged could be summarised into three broad categories, namely:
o the independent children’s lawyer had close dealings with Mr [P], such that she may have aligned herself with his views in the matter.
o perceived failings by the independent children’s lawyer, in relation to past Court events, to bring relevant materials to the attention of the judicial officers dealing with those Court events, and perceived failings in investigating relevant matters to bring them to the attention of such judicial officers.
o a perceived wrongful role by the independent children’s lawyer concerning the parties’ use of contact centres, and her dealings with them, in particular, the [T] Contact Centre.
Her Honour said that overarching these three grounds was that the mother had a perception of partiality by the Independent Children’s Lawyer towards the father.
In relation to the first category, her Honour determined there was no basis for this concern. Her Honour emphasised that, as a solicitor, the Independent Children’s Lawyer is an officer of the Court and her role as an appointed Independent Children’s Lawyer is based upon the Court’s trust as to her ability to represent the interests of the child independently. Her Honour found there was no evidence that the Independent Children’s Lawyer had aligned herself with Mr P’s views, as opposed to the independent exercise of her role.
Her Honour was satisfied there was no evidence on which it could be said that the Independent Children’s Lawyer would fail to act independently.
Her Honour also determined that there was no substance to the second category of the mother’s complaints. Her Honour recorded that the evidence and matters referred to in an interim hearing will differ from that relied upon and referred to at a final hearing. Her Honour accepted the submissions of counsel for the Independent Children’s Lawyer in relation to this allegation.
In relation to the third category, her Honour was also not satisfied that there was any evidence of conduct by the Independent Children’s Lawyer in this respect warranting her discharge.
Her Honour concluded that any subjective perception by the mother that the Independent Children’s Lawyer favoured the father was “groundless” and that there was also “no basis for objective perception as to such”.
Her Honour then referred to the submissions on behalf of the Independent Children’s Lawyer which her Honour said convinced her that there was no substance in any of the mother’s complaints.
Her Honour concluded that the mother had failed to identify any conduct by the Independent Children’s Lawyer which demonstrated actual or apprehended bias, and paragraph 6 of her application would thus be dismissed.
Finally, in relation to the listing of interim parenting issues, her Honour recognised that the listing on 22 October 2010 could not proceed until a new family consultant was appointed, and thus the hearing was to be vacated and a procedural order made for the application in relation to interim orders to be set for hearing as soon as possible after the preparation and release of the new family report.
Orders made on 8 October 2010
O’Reilly J made the following orders on 8 October 2010:
Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010
1 [Mr P] be discharged as the family consultant in the proceedings.
2 [Mr P’s] reports dated 7 September 2009 and 30 April 2010 and any affidavits annexing copies of or referring to the contents of those reports not be removed from the Court file but be sealed up in envelopes bearing the same folio numbers and marked “Not to be opened other than by the Order of a Judge”.
3 [Mr P’s] reports dated 7 September 2009 and 30 April 2010 not be introduced into evidence in these proceedings, not used for any purpose in them and there be no reliance on them by any party or any witness or the independent children’s lawyer in the proceedings.
4 Mr [H], Manager Child Dispute Services, appoint a new family consultant in the matter to prepare a new family report as soon as possible.
5 The independent children’s lawyer not be discharged and a new independent children’s lawyer not be appointed.
6 Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010 otherwise are dismissed.
Listing 22 October 2010 vacated
7 The listing on 22 October 2010 in relation to interim parenting orders sought by the mother in her application filed 30 June 2010 paragraphs 1, 2 and 3 and by the father in his amended response filed 6 September 2010 be vacated.
Further listing
8 The matter be listed at 10.30 am on 30 November 2010 before Registrar Kane for directions in relation to:
a.the listing of the applications for interim parenting orders referred to in paragraph 7; and
b.trial directions.
9 If possible, dates for trial be allocated no later than early 2011 before the Honourable Justice O’Reilly or another judge for 15 days as estimated by Mr Baston of Counsel as fixed trial dates.
Order 12 May 2010
10 Paragraph 6 of the order made 12 May 2010 is discharged.
Dr [V]
11 The mother and the father attend upon Dr [V] for further psychiatric assessment and report on dates and at times advised to them by the independent children’s lawyer. (Emphasis in original)
The mother appeals orders 4, 5, 6 and 7. However, it is difficult to discern what the challenge is to order 7, and in fact, in the end result no written or oral submissions were directed to this order in the appeal.
Application in an Appeal
On 17 March 2011 the mother filed an Application in an Appeal seeking to adduce further evidence. That evidence sought to be adduced was in the nature of an affidavit filed by the mother on the same date.
Section 93A(2) of the Family LawAct 1975 (Cth) (“the Act”) provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. The principles applicable to the receipt of further evidence are well settled, as outlined by the High Court in CDJ v VAJ (1998) 197 CLR 172 at 201 to 203.
The Independent Children’s Lawyer and father did not oppose the application to adduce further evidence. The Independent Children’s Lawyer, however, submitted that it was a question of the weight to be placed upon this further evidence by the Court. In this respect, the Independent Children’s Lawyer, in her written submissions, highlighted that many assertions of the mother contained in her affidavit would be inadmissible but for the provisions of s 69ZT of the Act and that the affidavit contained assertions which were inconsistent with other evidence before the Court and were not supported by the facts or the evidence. The father adopted the submissions of the Independent Children’s Lawyer on this issue.
Subject to the relevant and appropriate limitations identified by the Independent Children’s Lawyer, we received the further evidence comprised in the affidavit filed by the mother.
On the day prior to the hearing of the appeal, namely 30 March 2011, the mother forwarded to the Court documents in response to the Independent Children’s Lawyer’s and the father’s summaries of argument. Those documents consisted of responding submissions, attached to which were the Guidelines for Independent Children’s Lawyers endorsed by the Chief Justice of the Family Court of Australia and three medical reports, namely, a psychological “pre-sentence” report of the father prepared by Ms Y in relation to a drink driving charge, a psychiatric report prepared by Dr W on 18 September 2008 and a psychiatric report prepared by Dr E, the father’s treating psychiatrist, attached to an affidavit of Dr E sworn on 2 December 2009.
It was conceded by Mr Baston that the medical reports comprised in the annexures to the mother’s responding submissions were not before O’Reilly J on 8 October 2010. No application was filed seeking to adduce these reports as further evidence in the appeal. In any event, as highlighted to Mr Baston at the hearing, it is a question of the relevance of these documents. Given the nature of the orders under appeal, we do not consider the reports are of relevance. In these circumstances, we indicated at the hearing of the appeal that while we would take into account the submissions in reply on behalf of the mother, we would not accept the annexed reports. These documents were thus not before us.
We observe that the thrust of the responding submissions of counsel for the mother seems to be to demonstrate that on the available evidence the Independent Children’s Lawyer could not have reasonably supported unsupervised time with the father and the child, as it is alleged she did. That in turn, it is said, indicates a lack of “reasonable professional skill, care and attention” on the part of the Independent Children’s Lawyer. Putting aside for the moment the accuracy of the allegation that unsupervised time was being unreasonably supported, we also assume that this is intended to establish that the Independent Children’s Lawyer had a “prejudged opinion against the mother” and had “ignored evidence”. Presumably that in turn results from the Independent Children’s Lawyer being tainted as a result of having discussed this matter with the family consultant Mr P, which in turn allegedly followed upon a discussion between Mr P and Barry J.
In relation to the allegation that the Independent Children’s Lawyer was unreasonably supporting unsupervised time, it has been demonstrated to us by Ms Brasch from the transcript of the proceedings (see AB7, pp. 995, 1015, 1055) and from the written submissions of the Independent Children’s Lawyer (see AB6, p. 795) that that is not a fair representation of the expressed view of the Independent Children’s Lawyer. At the hearing on 30 October 2009 the Independent Children’s Lawyer’s position was plainly subject to a number of conditions being satisfied. Further, as at 3 December 2009 the Independent Children’s Lawyer pointedly submitted that there were “too many unknown factors about which there is limited or no evidence and which are disputed”, such that unsupervised time is “premature”. Thus, we are not satisfied that the respondent’s submission provides any basis for finding error on the part of the trial judge in relation to refusing to discharge the Independent Children’s Lawyer.
Grounds of appeal and orders sought
The mother’s grounds of appeal as contained in her Amended Notice of Appeal filed on 17 February 2011 are as follows:
1. The trial judge failed to give adequate reasons for her decision.
2. The trial judge erred in law in not granting to the Appellant an adjournment of her application.
3. The trial judge did not afford the Appellant natural justice or otherwise comply with the litigants in person guidelines.
4. The trial judge erred in law in not making an order that the ICL be discharged.
5. The trial judge erred in law in making an order that allowed a family consultant employed or recently employed by the court being appointed by the Manager Child Dispute Services to prepare a family report.
6. The trial judge erred in law in not making an order that the orders made 30 October 2009 and 3 December 2009 be discharged.
The mother sought that the appeal be allowed and also sought the following further orders:
2.That Order 5 of the orders made 8th October 2010 be discharged and in lieu thereof the following words be inserted:
“5.That the ICL be discharged and that no other ICL be appointed OR alternatively That the Director, Legal Aid Office (Qld) appoint an ICL and that such ICL not be a legal practitioner who is currently employed or has recently been employed by the Legal Aid Office (Qld).”
3.That the Father and the ICL pay the appellant’s costs of and incidental to the appeal and the application before O’Reilly J or in the alternative that the appellant be granted a costs certificate.
4.That Order 4 of the orders made 8th October 2010 be amended by:-
a.inserting after the words “as soon as possible” the words:
“and that such appointment be from a panel of four clinical psychologists with two to be nominated by the mother; and
b.inserting a further order:
“That the costs of the family report be paid by the Manager, Child Dispute Services or alternatively that the mother and father share equally the costs of the family report and further in the alternative in the first instance to be paid by the mother with the mother having leave to seek a contribution from Child Dispute Services and or the father at the conclusion of the trial of this matter.”
5.That the orders made 8th October 2010 be amended by inserting the following further orders:
“i.That the orders made 30 October 2009 and 3 December 2009 be discharged.
ii.That no party or witness be able to rely upon or refer to those matter surrounding the attendance of the parties or the child upon Mr [P] for any purpose in these proceeding nor-That [sic] no party provide to any person a copy of the Family Issues Assessment or Family Report of Mr [P] or any material which refers to or relies upon the Reports of Mr [P].
iii.That order 1 of the Orders made 12 May 2010 be discharged and an order be made that:
“The parties and any solicitor retained by them do all such things so as to recover any and all copies of the reports of Mr [P] of September 2009 and April 2010.”
iv.That prior to any further family report being prepared that the parties confer for the purposes of agreeing upon what documents be provided to the appointed family consultant or report writer and should the parties fail to agree they have liberty to apply for directions in that regard to a Judge.”
At the hearing of the appeal Mr Baston advised that the mother did not in fact seek that there be no Independent Children’s Lawyer. He conceded that there needed to be an Independent Children’s Lawyer, but as expressed in the orders sought that person should not be a legal practitioner who is currently or has recently been employed by the legal aid office.
The mother did not pursue grounds 2 and 6 at the hearing of the appeal. We note that there was no application for an adjournment made on 8 October 2010, rather this application was made on 5 October 2010 and there is no appeal from the orders made on that date. Interim parenting matters to which ground 6 related were also not before the trial judge at the hearing on 8 October 2010.
The initial summary of argument of the mother does not comply with sub-rule 22.22(2)(a) of the Family Law Rules 2004 (Cth) in that it does not directly address the grounds of appeal. Rather, the summary discusses in general terms the areas of complaint of which ultimately there appear to be two, namely:
1. The trial judge erred in not discharging the Independent Children’s Lawyer (ground 4)
2. The trial judge erred in ordering that a family consultant employed by the Family Court prepare the family report (ground 5)
During the course of the hearing before us counsel for the mother referred briefly to ground 3, but in the context of the challenge to the trial judge effectively comprised in ground 5. Thus, we propose to focus on the two challenges identified above, although we consider it necessary to also specifically address ground 1. Given the arguments advanced before us we consider it appropriate to first address grounds 5 and 4 and then consider ground 1.
Both the father and the Independent Children’s Lawyer seek that the mother’s appeal be dismissed.
Discussion
At the outset we record that the father was not in receipt of a grant of legal aid in relation to the appeal. As such, the father supported the written submissions of the Independent Children’s Lawyer and relied upon the same. Mr Smith, solicitor, appeared on behalf of the father at the hearing of the appeal, where he again adopted the submissions of the Independent Children’s Lawyer and made only brief submissions in response to the appeal.
The mother was not represented by solicitors, but directly briefed Mr Baston of counsel to represent her at the appeal hearing. The mother was granted leave to sit at the bar table at the hearing for the purposes of providing any assistance to Mr Baston with respect to the documents which she had prepared.
Ground 5
This challenge needs to be put into context. In other words, her Honour’s order was in relation to the specific application by the mother for a report writer external to the Court, namely Ms B to be engaged to prepare a family report and interview the parties and the children for the purposes of such report.
There was no alternative application before her Honour such as is now being raised in paragraph 4 of the orders sought by the mother in her amended Notice of Appeal. Thus it is not open to us for example to find that her Honour erred in not making an order in accordance with this alternative claim. We can only determine whether her Honour erred in making the order that she did on the basis of the application, the evidence and the submissions before her. There is also nothing in the further affidavit of the mother filed 17 March 2011 which would enable us to find that her Honour erred in the order that she did make. The mother in her affidavit deposed to her dealings with the new family consultant subsequent to her Honour’s order and she has set out suspicions and concerns that she has about that family consultant being able to carry out the task of providing an impartial family report. However, these are entirely her subjective views and there is no acceptable evidence that we can see of either actual or perceived bias on the part of that family consultant, or, to put it in the terminology of the mother’s counsel, no acceptable evidence demonstrating that public confidence in the administration of justice is being undermined.
Thus, to return to the ground of appeal, as can be seen from her Honour’s reasons (paragraphs 22 to 25) her Honour was concerned that a family report should not be commissioned by only one party and the writer should not be the choice of only one party. Her Honour correctly found that that in itself could raise issues of perceived bias. Further, as there was no funding available for a private external report to be obtained, in the circumstances of the case it was unfair to ask the parties to share that cost. Thus her Honour concluded that a new family consultant should be appointed.
Her Honour then addressed the question of the independence of a new family consultant and said this:
25.I have indicated that I will order that Mr [P]’s reports be sealed up and not be used for any purposes in these proceedings. Although there may be concern as to “Chinese walls” within Child Dispute Services, in my view there can be no valid criticism of my ordering that Mr [H] appoint a new family consultant in the matter, even if such be a Court employee. Each of the persons employed by the Court as a family consultant enjoys the confidence of the Court in his or her ability to be independent in the tasks assigned to them and as to their integrity in the performance of their important role. There can be no basis, thus, for criticism by the mother that any new family consultant designated by Mr [H] would not faithfully perform that independent role.
We are not persuaded that her Honour erred in making the order that she did. The submission was put that it was necessary for the order that was made to maintain public confidence in the administration of justice. In reality though the complaint that the mother makes is that there is no one who is employed by the Court who can be trusted to act impartially and professionally in this case because they are all tainted by association with Mr P who is also an employee of the Court.
There could be no evidence that would support that proposition, and to repeat, there is also nothing in the mother’s further affidavit that provides a basis for us finding that her Honour erred in that regard.
In his oral submissions to us during the hearing of the appeal counsel for the mother suggested that there was an obligation on the trial judge to agitate with the mother as a litigant in person the difficulties that might prevent the order that she sought being made and to alert the mother to other orders that could be made to achieve the desired result. This perhaps brings in ground 3, namely the complaint that the trial judge did not afford the mother natural justice or otherwise comply with the litigant in person guidelines. However, in the circumstances of this case we are not persuaded that there was such an onus on the trial judge. Although the mother appeared in person before her Honour, the mother had previously, and up to 5 October 2010, been represented by experienced counsel, and the order sought was quite specific in its terms. Further, as counsel for the Independent Children’s Lawyer in her written summary of argument and her oral submissions has demonstrated, her Honour “assisted” the mother and “ensured that she was afforded procedural fairness” in accordance with the litigants in person guidelines. Her Honour gave the mother every opportunity to address the concerns raised by the Independent Children’s Lawyer about Ms B being engaged to prepare a new family report, and it is apparent from the transcript of the proceedings to which we were taken that the mother took up the opportunity.
Thus, we find no merit in this ground of appeal and to the extent necessary we also find no merit in ground 3.
Ground 4
As identified by the counsel for the Independent Children’s Lawyer, in her further affidavit filed on 17 March 2011 the mother raises three grounds as to why the Independent Children’s Lawyer should be discharged, namely the:
1.ICL had pre-judged opinion against the mother, conducted her case in manner partially against her and was aligned with the views of Mr [P];
2.ICL has ignored evidence and failed to procure information;
3.ICL has manipulated relationship with Court officials and third parties…
Part of this is in effect repeated in the responding submissions of 30 March 2011 referred to above in paragraphs 63, 64, 65 and 66. However, in the initial summary of argument of the mother the complaint as expressed was that given that Barry J had stepped down from the case and the family consultant
Mr [P] had been dismissed, “without also discharging the ICL public confidence in the administration of justice could not be assured”. This then was the theme agitated before us at the hearing of the appeal. In particular, the issue pursued was that because the Independent Children’s Lawyer had discussions with the family consultant, it was open to find that the Independent Children’s Lawyer’s views were influenced by these discussions and the “tainted” family reports. That in turn would mean, it is said, that the Independent Children’s Lawyer would have difficulty in putting aside the matters discussed with Mr [P] when conferring with the new family consultant and that would then taint the new family report. Again though, in reality, the complaint is the Independent Children’s Lawyer cannot be trusted to act professionally.
Given this is the challenge ultimately promoted before us, we do not propose to further address the submission that the Independent Children’s Lawyer should be discharged because that lawyer for example allegedly “ignored evidence and failed to procure information”, or “manipulated relationships with Court officials and third parties”. Indeed, we do not understand to what the latter refers.
The first point to note though is that we do not accept the broad assertion by the mother in paragraph 13 of her summary of argument that there was “uncontested evidence that the ICL and the Family Consultant had conferred and possibly predetermined an outcome prior to the 30 October 2009 hearing” namely, the first day of the trial.
As Ms Brasch correctly points out in her summary of argument there was no evidence before the trial judge that suggests that there was discussion between the Independent Children’s Lawyer and the family consultant prior to the first day of the trial. That part of the transcript of the hearing on 30 October 2009 referred to by the mother merely indicates that there were discussions between the Independent Children’s Lawyer and the family consultant on that very day.
In any event, again, as Ms Brasch points out, it is not only usual practice, but it is indeed recommended practice pursuant to the Guidelines for Independent Children’s Lawyers for the Independent Children’s Lawyer to discuss the case with the family consultant (sections 4 and 6.3). We also observe that the nature of the less adversarial process on the first day of trial encourages discussions between the Independent Children’s Lawyer and the family consultant, as well as with the parties, on that day.
It is also pertinent to note that section 4 of the Guidelines for Independent Children’s Lawyers also require:
The ICL is to ensure that the views and attitudes brought to bear on the issues before the Court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.
The ICL must, if satisfied that the adoption of 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 of action.
We also accept the Independent Children’s Lawyer’s submission that there was no evidence before her Honour, and indeed we doubt that there could be, demonstrating that the Independent Children’s Lawyer could not put aside any discussion with Mr [P] and the contents of Mr [P]’s reports in order to progress the matter. By analogy, the Independent Children’s Lawyer is in the same position as a trial judge and other counsel where material of which they are all aware is determined to be inadmissible. That material is put aside and the trial proceeds on the basis of the evidence that is admitted.
We also agree with Ms Brasch that taken to its logical conclusion, because O’Reilly J was aware of the tainted material including the report by Mr [P], her Honour should also step down from the case. However, we observe that that is not suggested by the mother and nor could it be as the same argument would apply to any judge assigned to hear this case. That would be an absurd result in our view.
It also must not be forgotten that ultimately it is the trial judge who determines what evidence is admitted (and that includes any family report) and what weight is attached to that evidence, and what submissions of the parties, including the Independent Children’s Lawyer, will be accepted.
A criticism that the mother appears to make is that the Independent Children’s Lawyer formed a view about her and about the case very early in the proceedings, and that in some way demonstrates partiality. We do not accept that criticism. It is appropriate for an Independent Children’s Lawyer to form a view about the parties and the case, even prior to the commencement of the trial. Indeed, it is sometimes necessary for an Independent Children’s Lawyer to put a position to the Court that is contrary to that contended for by a party (for example see B and R and the Separate Representative (1995) FLC 92-636), but that does not indicate partiality.
Importantly, section 2 of the Guidelines for Independent Children’s Lawyers states:
The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities.
We have not been taken to anything by the mother that demonstrates that the Independent Children’s Lawyer cannot be trusted to act professionally in this case, such that her Honour erred in refusing to discharge the Independent Children’s Lawyer. Nor were we persuaded that such an order was necessary to ensure that public confidence in the administration of justice is maintained.
Thus there is no merit in this ground of appeal.
Ground 1
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 279 that:
without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett and Bennett (1991) FLC 92-191, the Full Court (Nicholson CJ, Simpson and Finn JJ) said at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours continued at 78,267:
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
Finally, as Coleman J recently observed in Wen & Thom [2010] FamCAFC 81:
57. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
Unlike in his summary of argument, at the hearing before us counsel for the mother only relied on this ground in alleging that in the reasons for judgment her Honour failed to address the options for providing an independent family report other than engaging Ms B. In his summary of argument counsel had suggested that there were inadequate reasons in relation to the appointment of a new family consultant and the refusal to discharge the Independent Children’s Lawyer. In our view, counsel was correct in abandoning that submission given that it is difficult to imagine what more her Honour could have constructively added to her reasons for judgment on these topics, and indeed how her Honour failed to articulate the necessary process was not suggested by Mr Baston.
In any event, as to the challenge ultimately made we also fail to see how this can succeed. We have already found that in the circumstances of this case it was unnecessary for her Honour to raise with the mother any other options that might be available to achieve the mother’s express purpose. Thus, we consider that it was also unnecessary for her Honour to address this in her reasons for judgment. In our view, her Honour has “spelt out” why she concluded as she did in relation to the specific application made by the mother, and the reader is not left in any doubt as to that.
Thus, this ground of appeal must also fail.
Conclusion
Having found no merit in any ground of appeal the appeal must be dismissed.
Costs
In relation to the appeal, neither the father nor the Independent Children’s Lawyer sought costs in the event of the appeal being unsuccessful. As referred to though in paragraph 26 above, in the context of expediting the appeal May J reserved the question of the costs of the application for expedition to the Full Court. Although we heard no submissions in relation to these costs, given the result of the appeal and the circumstance that no costs are sought by either the father or the Independent Children’s Lawyer, we do not consider that any costs should be awarded in relation to the application for expedition. In these circumstances there will be no order for costs.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland and Ainslie-Wallace JJ) delivered on 15 June 2011.
Associate:
Date: 15 June 2011
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