Belkin & Ming (No 2)
[2021] FCCA 1225
•3 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Belkin & Ming (No 2) [2021] FCCA 1225
File number(s): PAC 3506 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 3 June 2021 Catchwords: FAMILY LAW – application to remove Independent Children’s Lawyer – application dismissed Legislation: Family Law Act 1975 (Cth) ss 68L, 68LA Cases cited: Howell & Carter (No.2) [2017] FCCA 377
Amari & Qureshi [2017] FamCAFC 122Number of paragraphs: 21 Date of last submission/s: 31 March 2021 Date of hearing: 31 March 2021 Place: Parramatta Solicitor for the Applicant: No appearance Solicitor for the Respondent: The Father appeared in person Solicitor for the Independent Children’s Lawyer: Mr Jauncey ORDERS
PAC 3506 of 2018 BETWEEN: MS BELKIN
Applicant
AND: MR MING
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 JUNE 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Father’s application to remove the Independent Children’s Lawyer is dismissed.
2.In relation to the Father’s Application in a Case filed 25 March 2021, the Court appoints a short interim hearing on 14 October 2021 at 10am.
3.Each party shall file and serve on each other party and provide to the Court (by email to [email protected]) no later than 7 days prior to the interim hearing a case outline setting out material relied upon, Orders sought and brief submissions in relation to relevant considerations under s.60CC of the Family Law Act 1975. No party shall be permitted to rely upon any Affidavit that exceeds ten (10) pages or contains more than five annexures, in accordance with Practice Direction No. 2 of 2017.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Belkin & Ming (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
The Father seeks an Order that the Independent Children’s Lawyer (“the ICL”) be removed from the proceedings and that the child be appointed a new ICL. The child is X born 2017.
The ICL opposes the Father’s above proposed Order.
MATERIALS RELIED UPON
The Father relied upon the following documents:
(a)His Application in a Case filed 25 January 2021.
(b)His Affidavit filed 22 January 2021.
The ICL relied upon the following documents:
(c)Her Case Outline filed 30 March 2021.
(d)Her Affidavit filed 26 March 2021.
LEGAL PRINCIPLES
The Court sets out the provisions of s 68L of the Family Law Act1975 (Cth) (“the Act”).
Court order for independent representation of child's interests
(1) This section applies to proceedings under this Act in which a child's best interests are, or a child's welfare is, the paramount, or a relevant, consideration.
(2) If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
(3) However, if the proceedings arise under regulations made for the purposes of section 111B, the court:
(a) may order that the child's interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and
(b) must specify those circumstances in making the order.
Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.
(4) A court may make an order for the independent representation of the child's interests in the proceedings by a lawyer:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation concerned with the welfare of children; or
(iii) any other person.
(5) Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child's interests to find out what the child's views are on the matters to which the proceedings relate.
Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.
(6) Subsection (5) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
Section 68LA of the Act provides:
Role of independent children's lawyer
When section applies
(1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children's lawyer
(2) The independent children's lawyer must:
(a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
(3) 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.
(4) The independent children's lawyer:
(a) is not the child's legal representative; and
(b) is not obliged to act on the child's instructions in relation to the proceedings.
Specific duties of independent children's lawyer
(5) The independent children's lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court's attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children's lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children's lawyer.
(7) The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
In Howell & Carter (No.2) [2017] FCCA 377 the Court there stated:
20. Section 68L of the Act confers the power to appoint the ICL. The legislative forerunner to the present s.68L was s.65 of the Act, although under s.65, the court ordered the child to be “separately represented”. The power to order separate representation of the child had as its genesis in reg.115A of the Matrimonial Causes Rules, permitting the appointment of a guardian ad litem. The legislative background to s.65 was examined by Fogarty J in In the Marriage of Harris[12] (“Harris”) putting the current s.68L of the Act in context.
21. Section 68L of the Act makes provision for the appointment of an ICL and the circumstances in which an order for such appointment are to be made whereas s.68LA of the Act makes provisions about the detail of the ICL’s role. In its current iteration, the precise stipulations of Division 10 of Part 7 of the Act (incorporating s.68L and s.68LA) give legislative effect to various judicial observations about the metes and bounds of the role of the person who provides separate representation for the child. Those judicial observations include comments the veneration of which have stood from the early days of the operation of the Act, including such cases as In the Marriage of Todd,[13] In the Marriage of Pailas,[14] In the Marriage of Demetriou[15] (“Demetriou”), In the Marriage of Wotherspoon and Cooper[16] and others.
22. In its current iteration, s.68LA of the Act sets out in considerable detail the general nature of the role of the ICL as well as the specific duties of the ICL. The ICL’s duty to act impartially is now codified in s.68LA(5)(a) of the Act whereas prior to the operation of that section that duty emanated from the observations of the Full Court.
(Nicholson CJ, Simpson and Finn JJ) in In the marriage of Bennett.[17]
23. So far as the precise details of the ICL’s obligations in the performance of the ICL’s role was concerned, the legislation and cases have seemingly deliberately eschewed making any prescriptions. That may explain why ss.68LA(4) and 68LA(5) of the Act are broad in respect of the things those sections state, especially the tasks mandated in s.68LA(5) of the Act. Nowhere is there a specific obligation imposed upon the ICL to investigate anything in particular. The statutory obligations are expressed in mandatory terms in ss.68LA(2), (3) and (5) of the Act, each subsection being expressed in terms that the ICL “must” do the things there set out. Investigation is not one of those mandatory obligations.
24. As a matter of statutory construction, Division 10 of Part 7 of the Act is to be construed in accordance with well-established canons of statutory construction.
…
29. Applying those canons of construction, there being no mention of the ICL “investigating” the matters about which the father complained in this application, I do not accept the primary submission of the father that the ICL was under any such obligation as that for which the father contended. The Full Court of the Family Court of Australia has held as much in T v S.[40]
30. My view is reinforced by the express words of s.68LA of the Act. Under s.68LA(2) of the Act, the ICL is required to form an independent view of what is in the best interests of the child. Under s.68LA(5) of the Act, the ICL must act impartially. Most significantly for present purposes, s.68LA(5) of the Act does not confer upon either party to the litigation any power to enforce the ICL’s obligation to act impartially. In other words, neither the father nor the mother have standing to compel the ICL to act impartially if it were the case that facts existed (none of which are open on the evidence presently before me) to that effect.
31.Under s.68LA(4) of the Act the ICL is not the child’s legal representative. Yet under the whole of s.68LA of the Act the ICL must act in the proceeding a way that is in what the ICL believes to be the best interests of the child.
…
46. It seems to me that the power to order the removal of an ICL is so entrenched in family law jurisprudence that it cannot now be sensibly contended that no such power exists.
Grounds for removal
47. Whatever the aggregated bases for the removal of an ICL may be, it has never been the law that an ICL or a separate representative may be removed on account of failing to abide the wishes of one of the parties to the litigation.
…
49. The real issue in this case was whether legal principles concerning actual or apprehended bias applied to the ICL. If they did, the secondary issue was whether the father’s grievances in fact and in law amounted to actual or apprehended bias.
50. For the reasons set out below, I am of the view that concepts of bias – actual or apprehended – do not apply to the ICL.
51. The ICL does not represent the child, still less does the ICL advance any interest supportive of either parent of the child. That much is plain according to any construction of Division 10 of Part 7 of the Act. The ICL’s role and functions are set out in s.68LA(2)(a) of the Act (the statutory obligation to form an independent view, based on the evidence available to the ICL, of what is in the best interests of the child). The statutory obligation is also set out in s.68LA(2)(b) of the Act (acting in relation to the proceeding in what the ICL believes to be the best interests of the child).
52.In the performance of his or her obligations, the ICL must do the things enumerated in the various subsections of s.68LA(5) of the Act. Relevantly paraphrased, they are –
a. acting impartially in dealings with the parties to the proceeding;
b. ensuring the child’s views are fully put before the court;
c. analysing any report to be used in court and if so, ensuring matters are properly brought to the court’s attention;
d. endeavouring to minimise the trauma associated with the proceeding; and
e. facilitating an agreed resolution of matters in issue in the proceeding to the extent that doing so is in the best interests of the child.
…
54. In my judgment, rules of actual or apprehended bias have no application to the ICL. The general nature of the ICL’s role is set out in ss.68LA(2) and 68LA(5) of the Act by requiring the ICL to form an independent view of what is in the child’s best interests and to act accordingly as well as to act “impartially in dealing with the parties to the proceeding”.
55. The court in Isbester held that questions of bias are largely fact based. The facts of this case do not reveal the slightest suggestion of bias on the part of the ICL. For reasons already given, in my judgment legal concepts referrable to actual or apprehended bias have no application to the ICL.
In Amari & Qureshi [2017] FamCAFC 122, the Full Court of the Family Court of Australia stated:
52. The third and final procedural fairness issue concerns “bias” of the ICL. In essence it is said that the ICL favoured the mother and her questioning of witnesses lacked balance and demonstrated partisanship. True it is that impartiality of dealings with the parties is an important aspect of effective representation of a child by an ICL (s 68LA (5) of the Act), however it is not obvious to us how partisanship by an ICL in a trial where all parties are represented would sound in error by the primary judge. In any event, the father was able to establish that the ICL drew from the mother evidence of allegations of family violence she made in 2011. The questions invited the mother to adopt statements she had given to others, and, armed with this evidence, the father was questioned at some length by the ICL on the topic. Counsel for the father objected to the line of questioning and following his Honour’s observations that its relevance was not apparent it came to an end. The ICL then sought to tender documents the substance of which had not been put to the father. Objection to the tender was taken by counsel for the father and the primary judge ruled against their admission.
53. The ICL clearly considered the question of family violence to be relevant. Ultimately, the primary judge determined that given the time that had elapsed since the last occasion on which the mother alleged the father was violent to her he did not need to take account of this aspect of the case [15]. The point being no finding was made that the father had been violent towards the mother or that in his care there was a risk the child would be exposed to that type of conduct.
54. We see no reason to criticise the ICL for raising and seeking to explore issues of family violence. Doing so was entirely consistent with her obligation to “act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child” (s 68LA (2)(b)).
DISCUSSION AND DETERMINATION
The Father makes numerous allegations against the ICL which the Court now discusses.
The Father alleges that the ICL has failed to gain clarification on the provision of the current Interim Orders. The Father does not provide specific details of his alleged contacts with the ICL in this context. It is not the role of the ICL to clarify Court Orders for any party, or provide any party with legal advice. The Father is entitled to seek to obtain his own independent legal advice.
The Father alleges that the ICL has failed to relist the parenting proceedings before the Court upon his request. The ICL sets out at paragraphs 8 and 9 of her Affidavit the reasons why she did not relist the matter. The Court refers to paragraph 9 and its contents. The ICL’s reasons can be seen to be consistent with the child’s best interests.
The Father alleges that the ICL did not act in the child’s best interests by hindering time spent between the child and the Father after failing to facilitate discussion to do so “in the 12 months that I was being alienated from X”. In this context, the Court refers to its Reasons for Judgement delivered on 23 December 2020; in particular, the Court refers to its discussions under the need to protect primary consideration, in relation to allegations made against the Father by the Mother in relation to alleged violence, and it also refers to its discussions in relation to the Father’s allegations against the Mother that she had failed to facilitate the child spending time with the Father pursuant to Court Orders and otherwise. There is force to the submission of the ICL in this context, inter-alia, that given the polarity between the positions of the parents, and the competing views as to whether the child was at risk in the Father’s care, it was clear that the matter was not one suitable for mediation (at that time) and required judicial determination.
The Father alleges that the ICL has shown a biased relationship towards the Mother’s legal representatives and the Mother by only putting a small amount of material before the Court. In this context, the Court refers to the ICL’s Affidavit, including paragraphs 2, 3, 4 and 5. The ICL refers to not receiving a request from the Father to include material in her tender bundle prior to the Interim hearing held on 4 December 2020. There is force to the submission of the ICL that there was nothing to prevent the Father from tendering any document he determined to be of relevance at the Interim hearing.
The Father alleges that the ICL only produced records to support the Mother’s position and did not act in an independent manner. Again, the Court refers to the ICL’s Affidavit, including paragraphs 5 and 6, in relation to the ICL’s communications with the parties in relation to documents to be placed in the ICL’s tender bundle and the lack of response from the Father. Again, there is force to the ICL’s submission that she is not required to advance the case of the Father, and nothing prevented the Father from tendering any document that he wished to at the Interim hearing.
The Father alleges that the ICL has not made any recommendations to ensure that the child is not continuing to be medically neglected by the Mother. There is force to the ICL’s submission, in this context, that the allegation of medical neglect by the Mother is the position advanced by the Father and not the ICL. The ICL is not required to present the Father’s case. The Court refers to its Reasons for Judgement in relation to the alleged neglect of the child by the Mother, including at paragraphs 74 and 75.
The Father alleges that the ICL did not tender documents or other information relating to a domestic violence matter against the Mother before the Local Court in 2019. In the ICL’s Case Outline for the Interim hearing held on 4 December 2020, at page 8 of 15, she refers to the Local Court proceedings. Again, the Father was invited to place in the ICL’s tender bundle relevant subpoenaed records, and there was nothing to prevent him from tendering any document he determined to be of relevance at the Interim hearing.
The Father alleges that the ICL corresponds with the Mother’s legal representative without transparency and is aligned with the Mother’s case. There is force to the ICL’s submissions in this context. The Father’s allegations in this context lack particularity and is a bare assertion. The ICL is required to consider the evidence and advance a position that is in the child’s best interests. It may well be that the ICL’s position is one that is closer to that advanced by one parent. It does not follow that the ICL is acting contrary to the best interests of the child because her position is similar to that of one parent, provided that position is open to her on the evidence. The Court refers to the proposals of the ICL at the Interim hearing in comparison to the Orders made by the Court.
The Father alleges that the ICL failed to properly state the recommendations in the Family Report and disregarded recommendations in the Family Report. In this regard, the Court refers to the ICL’s Case Outline filed on 4 December 2020, at paragraph 15 under the heading “Whether there has been a significant change of circumstances”, and observes that the ICL referred to relevant recommendations of the Family Report writer. There is force to the submission of the ICL, in this context, that the ICL is not required to seek Orders consistent with the Family Report. There is force to the ICL’s submission that the Family Report was prepared on 2 September 2019, and, subsequent to the Family Report, there was a serious allegation of violence against the Father. There is also force to the ICL’s submission that the position of the ICL at the Interim hearing, that the child spend some supervised time with the Father, was one that was open to be made on the evidence.
The Father alleges that the ICL engaged in coercive and bullying behaviour towards him. The ICL, in her sworn Affidavit, denies any such conduct. There is force to the ICL’s submission in this context that such allegation made by the Father is particularly serious, which amounts to an allegation that the ICL has breached her ethical duties and the legal professional rules governing solicitors in New South Wales. There is force to the submission of the ICL in this context that there is insufficient evidence upon which the Court could make such a serious finding. The Court observes in this context that there was no cross-examination on the parties’ respective Affidavits in relation to this application by the Father to remove the ICL, and neither the Father nor the ICL sought to cross-examine the other.
The Court has previously made trial directions with a view to progressing these parenting proceedings to a Final hearing. The Court is of the view that the numerous allegations made by the Father in the context of his application to remove the ICL can be properly tested at the Final hearing.
Accordingly, the Father’s application to remove the ICL is dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 3 June 2021
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