ATHANASIOU & CALLOW

[2013] FamCA 729

FAMILY COURT OF AUSTRALIA

ATHANASIOU & CALLOW [2013] FamCA 729

FAMILY LAW – Children – Where the mother sought that the Independent Children’s Lawyer be discharged and replaced by another Independent Children’s Lawyer

Family Law Act 1975 (Cth)

APPLICANT: Mr Athanasiou

RESPONDENT: Ms Callow

INDEPENDENT CHILDREN’S LAWYER: Ms Barbara Fox

FILE NUMBER: BRC 8429 of 2007

DATE DELIVERED: 16 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Simonidis Steel Lawyers

FOR THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr George
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Barbara Fox Solicitor

Orders

IT IS ORDERED THAT

1. The Mother’s Application in a Case filed on 22 August 2013 be dismissed.

1. The Mother have leave to inspect documents produced on subpoena.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8429 of 2007

Mr Athanasiou

Applicant

And

Ms Callow

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed on 22 August 2013, the mother, Ms Callow, applies for an order having the effect that the currently appointed Independent Children’s Lawyer would be discharged and be replaced by another Independent Children’s Lawyer. 

2. It is important that it be understood that the role of an Independent Children’s Lawyer is as set out in section 68L and section 68LA of the Family Act 1975 (Cth) (“the Act”).  It is important to note that the Independent Children’s Lawyer was appointed to separately represent the interests of the child S, born in 2005, in the context of a great deal of conflict between the child’s parents.

3. As is made clear from the sections referred to, it is not the role of an Independent Children’s Lawyer to act upon the instructions of the child for whom they are appointed.  The role of the Independent Children’s Lawyer includes forming an independent view based upon available evidence of what is in the best interests of the subject child.  The Independent Children’s Lawyer is statutorily bound to act in the interests of the child and to make judgments, as the section reflects, as to the manner in which that is to be achieved.

4. For example, under subsection (3) of section 68LA, the Independent Children’s Lawyer 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. 

5. The mother complains, in a number of respects, about the Order made by this Court on 24 July 2012 which was an Order made on an interim basis by the Principal Registrar.  The Order then made, until further order, included an Order, inter alia, that the child spend time with and communicate with the mother at all times as agreed between the parties, but failing agreement, on a supervised basis.  As noted, that was an Order made on an interim basis pending the trial of the proceedings when the various allegations that litter this matter could be tested. The mother is critical of the Independent Children’s Lawyer’s support of such an order.

6. The Court then made that Order and, likewise, the Independent Children’s Lawyer then had regard to documents that were obtained from the Department of Child Safety on subpoena.  The mother’s complaint is that the departmental records are inaccurate in many respects.  However, that overlooks the feature that, on an interim hearing when allegations cannot be tested, both the Independent Children’s Lawyer and ultimately the Court must act conservatively in the best interests of the children making due allowance for the prospect that such allegations would be made out at a trial. 

7. The central complaint by the mother about the Independent Children’s Lawyer having a conflict of interest or displaying bias seems to be largely derived from the feature that, where the Independent Children’s Lawyer has advanced any allegations that are contrary to the mother’s perceived interests in the proceedings, that is said by the mother to demonstrate bias or a conflict against the mother.  However, as was pointed out to the mother during the argument, as an example of balance, the outline of case on behalf of the Independent Children’s Lawyer contains a chronology which includes allegations that are adverse to the father. 

8. The departmental records contain a number of notifications or assertions of fact that the mother takes issue with in terms of accuracy.  However, for the purpose of the interim hearing, the Independent Children’s Lawyer, in my view, properly had regard to what independent agency records contained, the department being an important such agency.  Whether the allegations are ultimately made out is a function for this trial rather than the interim hearing.

9. Aside from those features, the mother asserted that there is a conflict of interest flowing from the feature that the Independent Children’s Lawyer, she says, attended the same university as the solicitors for the father.  With respect, that overlooks the duties imposed upon an Independent Children’s Lawyer by statute.  It is the fact that it will often be the case that lawyers appointed to perform that role will have attended the same universities attended by one or more lawyers in firms of one or other of the parties to the proceedings. 

10. What is important is that, in this case, the simple fact that the Independent Children’s Lawyer may have attended the same university, nothing is borne out on the evidence of the mother to suggest that she has deferred her statutory responsibilities and role as an Independent Children’s Lawyer in favour of some personal relationship with anybody. 

11. The mother has raised concerns with Ms M, the team leader of the Department, but, again, that seems to me to conflate any difficulties the mother might have with the Department and its officers as opposed to the role of the Independent Children’s Lawyer in properly bringing forward to the Court subpoenaed documents from that Department.  The reference by the mother to the legal professional rules and the Privacy Act 1988 overlooks the statutory responsibilities of the Independent Children’s Lawyer.

12. True it is that a lawyer is governed by the legal professional rules, but a lawyer appointed as an Independent Children’s Lawyer has imposed upon him or her the statutory responsibilities outlined in the Act.  Again, by reference to the obligation on the Independent Children’s Lawyer, they will often have to follow a course that they believe to be in the best interests of the child in terms of submissions and the like to the Court.  For example, that necessarily involves expressing, to some extent, a personal opinion, being one of the complaints agitated by the mother in her affidavit about what the Independent Children’s Lawyer is alleged to have done wrongly.

13. The mother also asserted from the bar table that one Mr X had been sent the case outline by the Independent Children’s Lawyer in this case, but pressed to reveal on what basis she was making that assertion, confirmed that she did not know how it is, or whether, in fact, that is the case. 

14. The mother complains that, in respect of the July 2012 order, some of the subpoenaed documents have not been available to her.  As I have indicated to her in the course of the argument, I will give her leave, if she has not already been granted that leave, to inspect the subpoenaed documents from the department. 

15. Finally, the mother complains, in effect, that the Independent Children’s Lawyer shows a conflict or bias by imposing upon the mother, as she would have it, little in the way of a relationship between the mother and the child since the Orders of July 2012 were made.  However, the evidence reveals that Orders were made for the mother to be able to spend time on a regular basis with the child, albeit supervised, each Saturday, but the mother has elected, apart from, I think, one visit, not to avail herself of that Order and to undertake that time. 

16. For these reasons, I am not persuaded that the Independent Children’s Lawyer ought be discharged and the application of the mother is dismissed.  I will, as indicated, give leave to the mother to inspect any documents on subpoena, if she has not already been given that leave. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 September 2013.

Associate: 

Date:  17 September 2013