Barkly and Ivanson

[2013] FCCA 1936

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARKLY & IVANSON [2013] FCCA 1936

Catchwords:
FAMILY LAW – Application to remove Independent Children’s Lawyer.

Applicant: MR BARKLY

Respondent: MS IVANSON

File Number: BRC 1693 of 2012

Judgment of: Judge Howard

Hearing date: 19 November 2013

Date of Last Submission: 19 November 2013

Delivered at: Brisbane

Delivered on: 25 November 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: In person

Counsel for the Independent Children's Lawyer:	Mr S
Solicitors for the Independent Children's Lawyer:	(omitted) Solicitors

ORDERS

1. That the mother’s Application in a Case filed 4 November 2013 be dismissed.

2. That the Independent Children’s Lawyer (pursuant to his own application made instanter in Court on 19 November 2013) is granted leave to withdraw as the Independent Children’s Lawyer in this case.

3. That a new Independent Children’s Lawyer be appointed forthwith to represent the interests of X born (omitted) 2009.

4. That the Trial of this action be heard by a Judge of the Federal Circuit Court of Australia sitting in Brisbane other than Judge Howard.

IT IS NOTED that publication of this judgment under the pseudonym Barkly & Ivanson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1693 of 2012

MR BARKLY

Applicant

And

MS IVANSON

Respondent

REASONS FOR JUDGMENT

1. These parenting proceedings relate to one child, X born (omitted) 2009.

2. The Applicant is the father of the child, Mr Barkly.  The proceedings were filed on 28 February 2012.  The matter came before the Court initially on 14 May 2012.  On that occasion Ms Zande of Counsel appeared on behalf of the Applicant father.  The mother attended as a self represented litigant.  The mother is the Respondent in the proceedings.  And Ms J appeared as a friend of the Court on behalf of the Department of Communities, Child Safety and Disability Services.  Orders were made providing that the child X live with the father and spend supervised time with the mother.

3. The matter was adjourned until 25 June 2012.  On that occasion Ms Zande of Counsel appeared on behalf of the Applicant father.  Once again, the mother attended as a self represented litigant.  Mr E of Counsel appeared on behalf of the Department of Communities, Child Safety and Disability Services (the intervenor). 

4. On 25 June 2012 the Court ordered the appointment of an Independent Children’s Lawyer.  It was specifically requested (probably by the intervenor) that the Court appoint Mr P as the Independent Children’s Lawyer.  It seems that this was requested because of Mr P’s earlier prior involvement with this family in relation to child protection proceedings.

5. The matter came back to the Court on 23 October 2012.  On that occasion Ms Zande appeared on behalf of the Applicant father.  The Respondent mother once again attended as a self represented litigant.  Mr A, a solicitor, appeared on behalf of the intervenor and Mr P, solicitor, appeared as the Independent Children’s Lawyer.

6. Leave was granted to the Department of Communities, Child Safety and Disability Services to withdraw from the proceedings at the hearing on 23 October 2012.

7. The matter returned to Court on 12 December 2012.  On that occasion Ms Zande of Counsel appeared on behalf of the Applicant father.  The Respondent mother again attended as a self-represented litigant.  Mr P, solicitor, appeared as the Independent Children’s Lawyer.

8. On that occasion there was an interim order made granting sole parental responsibility to the father.  There was a further interim order made that the child live with the father and an order was made for the mother to spend supervised time with the child once per month at the (omitted) Contact Centre.  There was a further order made enabling the child to communicate by telephone with the mother twice each week.

9. The matter came before the Court again on 19 June 2013.  On that occasion Ms Zande of Counsel appeared on behalf of the Applicant father.  The Respondent mother attended as a self-represented litigant.  Mr P, solicitor, appeared as the Independent Children’s Lawyer.  On that occasion the matter was set down for a final hearing to take place in the Federal Circuit Court of Australia at Brisbane on 19 and 20 November 2013. 

10. The orders made on 19 June 2013 also required the parties to file trial affidavits. 

11. On 4 November 2013 the mother filed an Application in a Case seeking the following orders:-

    “1. I seek that Mr P to be removed & replaced from this case affective immediately.

    2. An affidavit has been filed in the Court Registry outlining the professional misconduct of Mr P & (omitted) Solicitors.

    3. If an Independant Children’s Lawyer is to be appointed, I seek an appropriate ICL be allocated to this case.”

12. In addition, the mother filed an Affidavit on the same date (4 November 2013).  The mother’s Affidavit contained, inter alia, the following paragraphs:-

    “1. I am writing to the Court to seek the removal & replacement of the appointed Independent Children’s Lawyer named as (omitted) Solicitors.

    2. The person in question is Mr P.

    3. I have made complaints to external authorities of the professional misconduct of Mr P due to events that occurred years prior to any Court appearances were ever made.

    4. Mr P also fails to provide me with relevant information & I am only finding information via the Court portal if & when a document is filed.

    5. I make sure that any documents I serve on any other parties are always sent via registered post AND email so there can be no discrepancy as to whether or not I have served any other parties.

    6. I am also aware that Mr P has not filed an Affidavit of Service when he files his documentation in the court registry which is also an indication of his failed attempts to follow Court protocols.

    7. The matter of (omitted) Solicitors is currently in the hands of Commissions, Qld & the Australian Ombudsman & many Politicians.

    8. I raise issues in regard to Mr P having attended clubs & bars to where I was an exotic dancer in my younger years prior to having children.

    9. During these years I recognise Mr P as a customer at these venues.

    10. I also recognised his face & his gut wrenching voice of when he had verbally asked me for sexual favours.

    11. These sexual favours were to be paid for as if I was a prostitute which I most certainly wasn’t & never wished to be.

    12. I refused his offer of money in exchange for sex immediately.

    13. I was a dancer & never a prostitute.

    14. I left dancing before becoming a mother.

    15. In 2007 my custody battle for my second son began.

    16. During these court procedures Justice Bell ordered an ICL.

    17. That ICL was Mr P from (omitted) Solicitors.

    18. I attended the court hearing after Mr P was appointed as the ICL.

    19. When Mr P came & saw me, it was then when I realised who I Was going to deal with & dreaded to have to deal with him in the same manner as years prior to having children.

    20. On the first conversation in the court proceedings with Mr P was about my dancing & not about the court procedures & what his involvement entailed.

    21. What Mr P said to me just blew me away & I just had no option but to freeze up with his verbal threat.

    22. Mr P states “what you want now you will not have” was in reference made regarding my children due to not providing him sexual favours when Mr P had asked me all those years ago when I had rejected him.

    23. Now Mr P has been appointed on all my court matters relating to my children.

    24. There is the first point of conflict of interest.

    25. In the meantime while I am continuing to fight for justice & for the custody of my children, I have been seeing a psychologist as part of my case, in saying that I saw Dr G well & truly before Mr P was appointed ICL in the two matters that I currently have before the courts.

    26. Dr G has recently provided evidence to the courts stating the department of communities have requested he alter his report AGAINST me to benefit the department.

    27. This evidence has been filed in the childrens court.

    28. I have since heard that Mr P is also acting in a personal case for Dr G.

    29. There is point two of a case of conflict of interest.

    30. From day one I have suffered in the hands of (omitted) solicitors but to hear that a highly recognised Dr that is also suffering in his own “personal” case due to releasing information of perjury from the department which would also suggest that (omitted) solicitors had their own best interest as their hand was dipped in with the departments funds is beyond belief.

    31. There is point three of conflict of interest which now also involves a “personal attack” & not in the child’s best interest by any means.

    32. As my dancing days have never come up in a court hearing & I would suggest that it hadn’t done so due to the possibly that I could reveal every LEGAL PRACTITIONERS, MAGISTRATES & JUDGES THAT EVER ATTENDED A STRIP CLUB or to my knowledge any parlour or call out girls, swingers parties etc as I was not at all scared to expose any names & Mr P being one of them, this topic went hush hush.

    33. I have since been studying the law & taking the system on myself as I do not trust the legal system from the experiences that I am currently seeing.

    34. And as my dancing days have nothing at all to do with my court appearances, I would say that if Mr P & (omitted) solicitors where to continue on my case then that would be a complete breach of the Act.

    35. Not only that if the sections of the Act that legal practitioners & legal aid should abide by & having breached them it would then be a public interest as to why this ICL is still acting in my case.

    36. There is also a question to be raised as to why a person that is meant to be acting in the best interest of a child can act so threatening towards a mother fighting for her children in the sense sexual favours where not carried out when asked.

    37. This would also be concerning as to how a person or firm of this behaviour could still be registered & be recognised in the Law society.

    38. I have recently learnt the concept of conflict of interest due to my own court appearances & state that this is a case of SERIOUS conflict of interest & PERSONAL ATTACK.

    39. It was in a consultation that I had raised with Dr G about what Mr P had done to me & still continues to manipulate the power he has over me in my court matters.

    40. It was in that same consultation that Dr G had informed me of the conflict of interest.

    41. I believe this would not only be a huge public interest but also a parliamentary one if this is to continue in my case.

    42. I am kindly seeking that (omitted) solicitors be removed & replaced from all my court cases affective immediately.

    …”

13. The Application in a Case filed by the mother on 4 November 2013 was listed for a mention in the Court on 8 November 2013.  On that day there was no appearance by the Applicant father – no doubt because he had not been served with the Application.  The Respondent mother attended as a self represented litigant.  Mr P, solicitor, appeared as the Independent Children’s Lawyer.  It transpires that Mr P had not been served with the Application either.  He was only able to appear at the mention because he was in the precinct of the Court and heard the matter called.  Various orders were made including an order requiring that the mother serve the Application in a Case and supporting Affidavit (filed 4 November 2013) on the father by ordinary prepaid post.  The matter was then adjourned for further mention on 13 November 2013.

14. On 13 November 2013 the Applicant father attended by telephone link as a self represented litigant.  The Respondent mother attended in person as a self represented litigant.  Mr P, solicitor, appeared as the Independent Children’s Lawyer.  On that day the Court adjourned the matter for a hearing at 10:00am on 19 November 2013.  That time was subsequently brought forward to 9:30am on 19 November 2013. 

15. On 13 November 2013 it was made clear to the parties that there was a preliminary issue which needed to be determined by the Court.  It related to the mother’s Application in a Case filed on 4 November 2013.  It was apparent, from the nature of the Application in a Case and the content of the mother’s accompanying Affidavit that the Court needed to hear and determine the mother’s Application in a Case prior to the Trial proceeding.  Accordingly, on 13 November 2013 the trial dates (19 and 20 November 2013) were vacated.

16. The Independent Children’s Lawyer, Mr P, filed an Affidavit on 11 November 2013 addressing the issues raised by the mother in her Affidavit filed 4 November 2013.  Mr P has stated in his Affidavit filed 11 November 2013 as follows:-

    “1. I am the Independent Children’s Lawyer for X born (omitted) 2009.

    2. I refer affidavit filed by Ms Ivanson on 4 November 2013 and say that the allegations made against me therein are false in every respect.

    3. Since 12 December 2012 I have been the Independent Children’s Lawyer and/or Separate Representative (in child protection proceedings) for all three of Ms Ivanson’s children as follows:-

    (a) Z born (omitted) 2005

    I was the Independent Children’s Lawyer for Z from 12 December 2008 until the order of His Honour Justice Bell on 18 February 2010 that Z live with his Father and spend supervised time with Ms Ivanson. A copy of His Honour’s Reasons for Judgment is now produced and show to me marked “A”.

    (b) Y born (omitted) 2005.

    I was the Separate Representative for Y from November 2011 when the Department of Communities removed him from Ms Ivanson and placed him in foster care. Y remains in foster care on two year order. I refer the Court to the psychiatric assessment of Ms Ivanson by Dr H in his report dated 23 July 2012 which is exhibit “A” to the affidavit of Ms R filed herein on 5 October 2012. In relation to the false allegations made against me by Ms Ivanson I particularly refer the Court to Lines 5 – 20 on page 22 of 30 of Dr H’s report.

    (c) X born (omitted) 2009

    X is the child the subject of these proceedings. I was his Separate Representative from November 2011 when he was removed from Ms Ivanson by the Department of Communities and I have been his Independent Children’s Lawyer in these proceedings since 24 July 2012.

    4. I have never spoken to Ms Ivanson socially or outside a Court setting. Over the course of the last 4 years Ms Ivanson has attended upon three different Family Report writers and psychiatrists. She has not made any allegations against me to any of these experts including Ms D in her updated family report filed on 4 November 2013.

    5. Over the past 4 years there have been many Court mentions and Court ordered conferences and family group meetings including times when Ms Ivanson has had legal representation in which no allegations were made against me.

    6. I first became aware of Ms Ivanson’s allegations on Sunday 7 July 2013 whilst preparing for a hearing on Monday before Her Honour Judge Purdon-Sully. I was the Independent Childrens Lawyer. The Father in those proceedings was a (omitted) whom Ms Ivanson had seen in respect of the child protection proceedings concerning Y. The proceedings before Her Honour Judge Purdon-Sully had been on foot for eighteen months and Monday 8 July 2013 was the first day of a two day hearing. At the commencement of the hearing the Father handed up Ms Ivanson’s statement and sought to have me removed on the grounds that I had a conflict of interest. I had not had time to respond to the allegations and initially I sought leave to withdraw. After an exchange between my Counsel Mr B and Judge Purdon-Sully I withdrew my application and the hearing proceeded. The matter was resolved by way of Consent Final orders later that day a term of which was that the Father’s application to have me removed was struck out as being scandalous.

    7. I next became aware that Ms Ivanson may be persisting with her allegations on 11 July 2013 when in relation to child protection proceedings concerning Y, I was informed by Ms C of the Department that she had received an affidavit from Ms Ivanson and an affidavit from Dr G attaching an updated report. Ms C informed me that she was specifically directed by Ms Ivanson not to provide me with copies of the affidavits.

    8. On 22 July 2013 Ms C informed me that at the review mention Ms Ivanson had sought to raise with the Court a complain concerning me which she had lodged with the Legal Services Commission.

    9. On 22 July 2013 I telephoned the Legal Services Commission and inquired if Ms Ivanson had made a complaint against me. Complaints Officer Ms H informed me that Ms Ivanson had made on online complaint about me to the Legal Services Commission on 8 July 2013 and that on 11 July 2013 the Legal Services Commission sent Ms Ivanson an e-mail advising that her complaint had been considered in detail and that the Commission was not proceeding with the complaint and that the matter was closed.

    10. Now produced and shown to me and marked “B” is a copy of the e-mail dated 11 July 2013 from the Legal Services Commission to Ms Ivanson dismissing her complaint.

    11. On 29 July 2013 at the commencement of the adjourned child protection hearing in the Childrens Court at Beenleigh in respect of Y, Ms Ivanson handed up an affidavit setting out her allegations against me and requested Magistrate Dowse to remove me as Y's Separate Representative. I filed an affidavit in the same terms as this affidavit. Her Honour dismissed Ms Ivanson’s application and the hearing proceeded. Ms Ivanson declined to be cross examined on her affidavit containing her allegations against me. Her Honour made a two year custody (foster care) order in repsect of Y.

    11. On 9 August 2013 Ms Ivanson has also lodged a complaint in respect of her allegations with Legal Aid Queensland to which I have responded in the same terms as this affidavit. I have not received any response other than that may placement on the panel of Separate Representatives and Independent Children Lawyers has been renewed until 2017 and I continue to be allocated matters from Legal Aid Queensland.”

17. It will be noted that in paragraph six of his Affidavit Mr P inserted the words “and Judge Purdon-Sully”. Mr P made that correction when in the witness box on 19 November 2013.

18. In essence the Court is confronted with the following question for determination – should Mr P be removed as the Independent Children’s Lawyer?  In order to be in a position to answer such a question it became necessary for the Court to conduct a preliminary hearing.  This took place on 19 November 2013.

19. At the commencement of the proceedings on 19 November 2013, the Counsel for the Independent Children’s Lawyer, Mr S, rose to his feet and sought the leave of the Court for the Independent Children’s Lawyer to withdraw as the ICL in the case.  The essence of the submission was – that whilst Mr P denied the allegations made by the mother – he thought it would be prudent to withdraw so that the Court would not be forced to make findings in relation to the mother’s allegations and Mr P’s denials. 

20. I decided not to grant leave to the Independent Children’s Lawyer to withdraw from the case at that stage.  I came to the conclusion that the interests of justice will be best served if the Court was to hear and determine the mother’s Application.

21. The allegations made by the mother against Mr P are, of course, extremely serious.  By the time the matter came to the Court on 19 November 2013 – Mr P had already sworn an Affidavit (filed 11 November 2013) where he denied, on oath, the allegations made by the mother.  I came to the conclusion that if the Court were to allow Mr P merely to withdraw as the Independent Children’s Lawyer that there would remain a question mark in relation to the allegations made by the mother and there would remain a question mark in relation to the denials by Mr P.  Mr P appears on a regular basis in this jurisdiction as an Independent Children’s Lawyer.  It would not, in my view, further the interests of the administration of justice in Queensland (or Australia for that matter) for these issues to be unresolved and without a determination by a Court.

1. The matter therefore proceeded to a hearing on 19 November 2013. 

2. The mother gave evidence on 19 November 2013.  The mother swore on oath in the witness box that the contents of her Affidavit were true and correct to the best of her knowledge.

3. Under cross-examination by Mr S, Counsel on behalf of the Independent Children’s Lawyer, the mother confirmed that she first met Mr P in a Court setting in 2007 or 2008.  That evidence by the mother given from the witness box accords with the evidence of the mother included in paragraphs 15, 16, 17, 18 and 19 of her Affidavit filed 4 November 2013.

4. The Applicant father in these proceedings, Mr Barkly, was formerly the mother’s partner. Mr Barkly gave oral evidence in the Court on 19 November 2013.  Notwithstanding the fact that the mother had been ordered on 8 November 2013 to serve the father with the application and affidavit (both filed on 4 November 2013) – when the matter came on for hearing on 19 November the father still had not received a copy of the material and a copy was provided to him at the Court.  Having regard to the evidence of Mr Barkly (the father) and Ms Ivanson (the mother) I make the following findings of fact:-

   a)Mr Barkly met the mother on (omitted) 2009;

   b)Mr Barkly moved in to live with the mother at her rented premises situated at (omitted).  At this stage the mother had fallen pregnant with X;

   c)Mr Barkly lived with the mother at the property situated at (omitted) from April 2009 until March 2010;

   d)Mr Barkly was present at X’s birth at the (omitted) Hospital.  Mr Barkly confirmed that X weighed 6.2 pounds (or 3.3 kilograms), and he was born at (time omitted) on (omitted) 2009;

   e)Mr Barkly confirmed that he took care of the mother’s other two children during the week that the mother was in hospital having X.  The other two children are Y and Z;

   f)Mr Barkly confirmed that during the week that the mother was in hospital for the birth of X – that he, Mr Barkly, also fed the horses and the “chooks” at the mother’s property and generally looked after the premises;

   g)Mr Barkly confirmed that on occasions, when he was living in the premises with the mother – there would be domestic arguments between Mr Barkly and the mother.  On those occasions Mr Barkly confirmed that he wanted to withdraw from the situation of conflict and he would go and spend the evening at the residence of a friend – Mr R.  Mr Barkly said this in fact occurred once or twice per week;

   h)Apart from those occasions when he went to stay at the residence of his friend – Mr Barkly lived full time with the mother – as her partner – in the premises situated at (omitted);

   i)During the period of time that Mr Barkly lived with the mother, the proceedings in the Family Court of Australia concerning the child Z (born (omitted) 2005) came on before the Honourable Justice Bell. 

   j)Mr P was in fact the Independent Children’s Lawyer for Z from 12 December 2008 until the order of the Honourable Justice Bell made on 18 February 2010 (to the effect that Z live with his father and spend supervised time with the mother (Ms Ivanson));

   k)Mr Barkly swore an Affidavit in the parenting proceedings relating to Z.  Mr Barkly swore that Affidavit in those proceedings to assist the mother.  Mr Barkly was the mother’s partner at that time and was living with her at the premises situated at (omitted);

   l)Mr Barkly was called to give evidence and did in fact give evidence in the Commonwealth Courts building in Brisbane in the parenting proceedings relating to Z;

   m)While Mr Barkly gave evidence in the Court before the Honourable Justice Bell – Mr P was present in Court and was the Independent Children’s Lawyer for Z;

   n)At no time during 2009 or 2010 (or any other time) for that matter did the mother ever tell Mr Barkly of her allegations that she now makes against Mr P.

5. Mr Barkly had thought that the mother’s residence was situated at number (omitted), (omitted).  Indeed he seemed to think the name of the street was (omitted).  In my view these issues are not significant;

6. I accept the evidence of Mr Barkly.  I have made the findings of fact above after having had the opportunity to listen to Mr Barkly give evidence in the witness box.  Mr Barkly gave credible evidence and I consider him to be a witness of truth.

7. To the extent that there is any dispute in the evidence between Mr Barkly and the mother – I accept the evidence of Mr Barkly.  The mother was not an impressive witness.

8. The mother maintains that when Mr P was appointed as the Independent Children’s Lawyer on behalf of Z (in 2008) – she (the mother) recognised Mr P from an earlier time in her life as set out in her Affidavit file 4 November 2013.  I find it inconceivable that the mother would not have raised these allegations immediately upon becoming aware that Mr P had been appointed as the Independent Children’s Lawyer for Z.  I find it is inconceivable that the mother would not have raised these issues in the Court before the Honourable Justice Bell.  The mother has been present in Court as a self represented litigant in these current parenting proceedings on many occasions.  It is apparent from those occasions and it was also apparent from the mother’s evidence on 19 November 2013 – that the mother is not a shy and retiring person.  The mother speaks up and makes her point of view known to the Court.  This is an admirable trait.

9. But it does make it even harder for the Court in this instance to accept that the mother would not have raised these allegations with Justice Bell – if the allegations were true. 

10. Further, I find it inconceivable that the mother would not have mentioned these allegations to Mr Barkly – especially having regard to the fact that – at the relevant time in 2009/2010 when the proceedings were before Justice Bell – Mr Barkly was the mother’s partner and was living with her at (omitted).  Further, not only was Mr Barkly the mother’s partner at the time, but he was, of course, the father of her new child (born (omitted) 2009) namely X.

11. But it goes even further than that because here is a man, Mr Barkly, the mother’s partner at the relevant time when the proceedings were before Justice Bell – who was not only her partner but was supporting her during the litigation by swearing an Affidavit which was filed and relied upon in the mother’s case.  In addition to providing an Affidavit, Mr Barkly went to the Court and gave evidence in the Court on behalf of the mother before Justice Bell.  The mother now asks this Court to accept that notwithstanding her then very close association with Mr Barkly – that she made no mention (to Mr Barkly) of these extremely serious allegations against Mr P.

12. I have come to the conclusion that the reason that the mother never told Mr Barkly of the allegations (which are set out in the mother’s Affidavit filed 4 November 2013) concerning Mr P is because those allegations are not true.

13. I find that the mother has fabricated this story concerning Mr P. I find as a fact that the mother has lied to the Court both in her Affidavit filed 4 November 2013 and in her oral testimony given to the Court on 19 November 2013. 

14. I had the opportunity to observe Mr P give evidence in the Court on 19 November 2013.  I accept Mr P’s evidence in its entirety.  I accept that Mr P has told the Court the truth in relation to every aspect of this matter.

15. I note Mr P’s evidence that he completed his undergraduate law degree at the University of (omitted) in 1974.  He was admitted as a Barrister and Solicitor in (country omitted) in 1975.  Further, Mr P migrated to Australia from (country omitted) in 1980 and spent one year practising as a Solicitor by way of a conditional admission.  From 1980 Mr P worked for (omitted), solicitors of Brisbane.

16. In 1984 Mr P was admitted as a Barrister and practised from Chambers in (omitted) until 1992 when he was once again admitted as a Solicitor in Queensland.

17. The allegations made by the mother relate to a period of time when the mother says she was working as an exotic dancer on the (omitted).  The mother asked Mr P whether he had ever been to the (omitted) Hotel.  Mr P confirmed that he had been to that hotel – but he had not been there for years.  The mother asked Mr P as to whether or not he had been present when there were topless waitresses or strippers present in that hotel. Mr P stated that he had never seen any topless waitresses or strippers at the (omitted) Hotel.  Mr P stated that he had never come into contact with any stripper or topless barmaid at the (omitted) Hotel.  The mother was specifically referring to the mid 1990’s – late 1990’s. Mr P said that lawyers frequent the (omitted) Hotel all the time.  Furthermore, Mr P denied ever visiting premises known as “(omitted)” and he denied entering premises known as “(omitted)”.  I accept this evidence of Mr P. 

18. Mr P specifically denied during his oral testimony on 19 November 2013 that he had ever attempted to solicit the mother for sexual favours.  I accept this evidence of Mr P.

19. Further, I accept the evidence of Mr P given in paragraph four of his Affidavit filed 11 November 2013 where he stated:-

    “I have never met with or spoken to Ms Ivanson socially or outside a Court setting.”

20. The current proceedings before the Court were commenced when an Application was filed by the father, Mr Barkly, in February 2012. 

21. Mr P was appointed as the Independent Children’s Lawyer by order of the Court made on 25 June 2012. 

22. Mr P first appeared in the Court as the Independent Children’s Lawyer in October 2012.  On that occasion the mother was also present in the Court.  After that appearance in Court in October 2012 there were further appearances in the Court on occasions where both the mother and Mr P were present – namely 12 December 2012 and 19 June 2013.  The evidence reveals that the mother first mentioned the allegations against Mr P in a letter or statement that she had written in support of a man named Dr G.  This apparently occurred in early July 2013.  Dr G was then one of the parties in parenting proceedings before Her Honour Judge Purdon-Sully in the Federal Circuit Court of Australia.  It seems that Dr G is a psychologist.  The mother was, apparently, attending upon Dr G as a patient.  How it could possibly be the case that one of Dr G’s patients then prepared a letter/statement on his behalf to be used in his own parenting proceedings is presently incomprehensible.  In any event – there is no believable explanation from the mother as to why she was prepared to submit a letter/statement containing the allegations against Mr P in parenting proceedings before Her Honour Judge Purdon-Sully on 8 July 2013 – but the mother had not been willing to mention those allegations against Mr P on 19 June 2013 in this Court – even though this case (of course) involves her own child.  I note the annexures to the mother’s Affidavit filed 4 November 2013.  There is no believable or reasonable explanation from the mother as to why she lodged a complaint with the Legal Services Commission in May 2013 – but did not mention anything about her allegations against Mr P when she appeared in this Court on 19 June 2013. 

23. At no time prior to 4 November 2013 (when she filed this current application) did the mother raise her allegations concerning Mr P in these parenting proceedings concerning the child X.  The mother’s attempted explanations as to why she did not raise the allegations at an earlier time are not believable.  I mentioned earlier that I have come to the conclusion that the mother is not a shy person.  The mother has demonstrated in the past and the mother continues to demonstrate that she is the type of person to speak up and to speak her mind in the Courtroom – making sure that the Court is well aware of her point of view on every issue.  I have come to the conclusion that the mother did not raise these allegations against Mr P in this Court at any time prior to 4 November 2013 – because the allegations against Mr P made by the mother are not true.  It is inconceivable, in my view, that the mother would not have spoken out and informed the Court of her allegations at an earlier point in time – if indeed the allegations were true.

24. It is apparent to the Court that the mother is not happy with Mr P as the Independent Children’s Lawyer.  The mother is not happy with the course that these parenting proceedings have taken.  The mother has therefore made untrue allegations against Mr P in an attempt to have him removed as the Independent Children’s Lawyer.  This deliberate and deceitful course of conduct by the mother is reprehensible. 

25. The mother’s Application to have Mr P removed as the Independent Children’s Lawyer is dismissed. 

26. I will however acquiesce to the further Application made by Mr S on behalf of the Independent Children’s Lawyer during submissions – to the effect that if the Court found against the mother that the Court would nonetheless grant leave to Mr P to withdraw as the Independent Children’s Lawyer.  The sound reasoning behind that submission should be accepted by the Court.  Clearly, Mr P has had to take a position – contrary to the mother’s position in this Application in a Case – and Mr P's Counsel has sought findings by the Court against the mother.  In those circumstances it is appropriate for Mr P to withdraw as the Independent Children’s Lawyer and I grant him leave to do so.

27. Further, the Court has been placed in a difficult position.  The matter has been in my docket since February 2012 and was listed for Trial on 19 and 20 November 2013.  As noted earlier, those dates had to be vacated.  The Court has had to make findings of fact in relation to this matter.  The Court has made findings of fact against the mother.  The Court has made findings against the mother’s credit and the Court has come to the conclusion that the mother is not a person who tells the truth.

28. It is therefore now appropriate for the final hearing of the parenting proceedings in relation to the child X to proceed before a different Judge.  In this regard I agree with the submission of Mr S, Counsel on behalf of the Independent Children’s Lawyer.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 20 November 2013