Bondai & Bretton (No 2)
[2010] FamCA 1237
•6 December 2010
FAMILY COURT OF AUSTRALIA
| BONDAI & BRETTON (NO. 2) | [2010] FamCA 1237 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of independent children’s lawyer – Application made after final orders – No proceedings on foot – Application dismissed – Observations as to the role of independent children’s lawyers |
| Family Law Act 1975 (Cth) ss 68LA(2)(a), 68LA(5)(a) |
| Antoun v The Queen [2006] HCA 2 Bennett & Bennett (1991) FLC 92-191 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Harris & Harris (1977) FLC 90-276 Johnson & Johnson (2000) 201 CLR 488 Kingley & Arndale (No 2) [2010] FamCA 968 Knibbs & Knibbs [2009] FamCA 840 Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 Marsden & Winch (2009) FamCAFC 152 Miller & Harrington (2008) FLC 98-283 Pagliarella & Pagliarella (1993) 16 FamLR 688 Rice & Asplund (1979) FLC 90-725 S & E (unreported) BR 2362 of 1998, Warnick J, 10 July 2000 |
| APPLICANT: | Mr Bondai |
| RESPONDENT: | Ms Bretton |
| FILE NUMBER: | BRC | 13855 | of | 2007 |
| DATE DELIVERED: | 6 December 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 30 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Smith |
| SOLICITOR FOR THE APPLICANT: | Hogan Stanton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Baston |
| SOLICITOR FOR THE RESPONDENT: | Lynn & Rowland Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
IT IS ORDERED
The mother’s application filed 18 November 2010 for the discharge of the independent children’s lawyer, and other orders, is dismissed.
AND IT IS FURTHER ORDERED
Any applications for costs together with supporting material and written submissions be filed and served by 4.00pm on Tuesday 14 December 2010.
Any material in response together with written submissions be filed and served by 4.00pm on Tuesday 21 December 2010.
The applications for costs, if any, be dealt with on the papers.
NOTATION:
Mr Smith, Mr Baston and Ms Carmody agreed that any cost applications be dealt with on the papers.
IT IS NOTED that publication of this judgment under the pseudonym Bonsai & Bretton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 13855 of 2007
| MR BONDAI |
Applicant
And
| MS BRETTON |
Respondent
REASONS FOR JUDGMENT
Background
This is an unusual application seeking the discharge of an independent children’s lawyer after the conclusion of a trial and the making of final orders.
On 8 October 2010, I made several orders by consent (except in respect of a minor matter) concerning the children B born in March 2000 and E born in April 2001, including that the parties have equal shared parental responsibility for the children and that they live with the mother. The children, essentially, had become estranged from the father. In my reasons for judgment 8 October 2010 concerning the minor matter which I was required to determine, I said, in relation to the parties’ agreement for consent orders:
1.In this matter, which has occupied five days, it is an exceptionally pleasing result that despite the parties’ volatility and hostility and high level of conflict with each other, as the parents of [B] and [E] commendably they with the assistance of their excellent legal teams have been able to agree consent final orders in all respects save one. It is therefore necessary for me to make a determination on the one outstanding issue.
2.Part of the agreement is that the children live with the mother, and after being reintroduced to the father satisfactorily under the guidance of Dr [W], psychiatrist, they spend time with the father at all times as agreed between the parties, but failing agreement each alternate weekend from after school Friday to 5.00pm Sunday, half school holidays, special occasions and other times.
This part of the agreement is reflected in order 18 of the consent orders.
In relation to the current dispute, it is necessary to set out the following of the consent orders (in the parties’ own words and formulation) comprising Annexure A to the orders made 8 October 2010:
7.That the Mother and the Father and children attend upon Dr [W] for counselling at such time and frequency as directed by Dr [W] through the Independent Children’s Lawyer with the objective of assisting both parties in their conflict and to facilitate and monitor the reintroduction of the Father to the children;
…
9.That each of the parties provide the Independent Children’s Lawyer with a written authority within seven days to enable the Independent Children’s Lawyer to discuss the progress of the parties’ counselling with Dr [W] as referred to in paragraph 5 [skil 7] herein;
…
11.That neither party is to directly contact Dr [W] or his rooms in relation to appointments and in that regard all communications with Dr [W] is [sic] to be facilitated through the Independent Children’s Lawyer.
12.That the Independent Children’s Lawyer provide to Dr [W] the following reports:-
(a) Affidavit of Dr [H] filed 30 September 2010;
(b) Affidavit of Ms [C] filed 30 September 2010;
(c) Affidavit of Dr [S] filed 30 March 2010;
(d) Affidavit of Dr [K] filed 10 September 2010;
(e) Addendum of Dr [K] dated 9 September 2010.
…
20.That the Independent Children’s Representative [sic] not be discharged until 12 months from the date of this order.
Order 18 provided that “upon a satisfactory reintroduction of the father into the children’s lives”, they spend time and communicate with him as set out in 9 following subparagraphs.
A notation to the consent orders provides (again, in the parties’ own words):
NOTATION: The parents acknowledge that the intention of these orders is to put in place a child focused means by which the children might be re-introduced to the Father and spend substantial and significant time with him.
Application
On 18 November 2010, the mother filed an application for orders that the independent children’s lawyer be discharged, and, essentially, that she disclose and depose to any written and oral communications between herself and Dr W.
At the hearing of the mother’s application on 30 November 2010, the independent children’s lawyer proffered documents which became exhibits 1-4, exhibit 1 being a letter by her to Dr W 9 November 2010 containing, on the first page, formal information, and on the second page observations by her to Dr W, and exhibits 2 - 4 being diary notes of conversations with Dr W (or his office) on 12 November 2010 and 15 November 2010 concerning available appointments, in particular 17 November 2010 for E and 18 November 2010 for B, matters of cost, and ultimately the cancellation by the independent children’s lawyer on 15 November 2010 of those appointments.
The provision by the independent children’s lawyer of exhibits 1-4 had effect that the second limb of the mother’s application effectively did not need to be pursued, and during argument was not pursued, leaving for my determination only the question whether the independent children’s lawyer should be discharged.
I should add that the mother’s affidavit material contained assertion that Dr W, as the result of the independent children’s lawyer’s “actions”, and in particular by reason of matters communicated to him in the second page of the independent children’s lawyer’s letter 9 November 2010 (exhibit 1), could not now be “fair and impartial”, and that the matter may need to be “brought back before the Court for the appointment of a further practitioner”, on the basis that the independent children’s lawyer had “prejudiced our client before Dr [W]”, ie, prejudiced the mother “before Dr [W]”: affidavit Dianne Jean Rowland, the mother’s solicitor, filed 18 November 2010, annexure DJR2.
However, during argument, Mr Baston of Counsel, for the mother, made clear that the mother’s application did not encompass that Dr W not be the practitioner for the purpose of the consent orders.
The mother’s ground of complaint for discharge of the independent children’s lawyer
The mother’s ground of complaint in relation to the independent children’s lawyer, as articulated by Mr Baston (being distilled from the mother’s affidavit material), is that her conduct both during the trial and since the trial demonstrates either actual or perceived bias against the mother so that the independent children’s lawyer plainly has the view that the children’s estrangement from the father is the mother’s fault, with effect that, as between the mother and the father, she cannot act, or at least be seen as acting, impartially. Further it was put, implicitly, that unless the independent children’s lawyer is discharged, she may have the propensity to “taint” or “further taint” Dr W in his important role, not only because of what she has communicated to him already about the mother, but, unless discharged, what she might in the future communicate, so as to “taint” Dr W’s views about the mother.
More broadly, although not specifically argued, is the circumstances that, if the final orders should not result in successful reintroduction of the children to the father, so that there be new proceedings concerning them, the independent children’s lawyer has so conducted herself as not to be “impartial” as between the mother and the father in any new proceedings.
In this regard, it is relevant to mention observations which I made on 8 October 2010, in transcript format, recorded at the end of my reasons for judgment 8 October 2010, in the context of Rice & Asplund (1979) FLC 90-725, Miller & Harrington (2008) FLC 98-283 and Marsden & Winch (2009) FamCAFC 152, to which I would refer in full but would extract the two concluding paragraphs.
Order 18 is clear in its terms that upon - not if - but upon - a satisfactory reintroduction of the father into the children’s lives under the guidance of Dr [W] the children spend time with the father at all times as agreed between the parties, but failing agreement as set out. There is nothing in the orders that is predicated upon a presumption that if the proposed reintroduction fails then that’s the end of the matter and the boys and the father will continue to have no relationship. That’s not the way it works.
In my mind there is no doubt whatsoever that if a satisfactory reintroduction through Dr [W] is not achieved that in itself will be a significant and outstanding change of circumstances, not in the present relationship between the parties, but the predication of the success of these orders. If, therefore, they don’t work, and I sincerely hope that they do in the best interests of the children, if they don’t work then there will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him.
The mother’s concern, thus, is not only in relation to the role of the independent children’s lawyer under the present orders, but also in relation to any further proceedings which might ensue.
For my part, I will state categorically that, because final orders have been made, presently the role of the independent children’s lawyer is limited to the consent orders which I have set out, namely, orders 7, 9, 11, 12, and 20.
If, ultimately, there be the need for new proceedings, and in those proceedings, the appointment of an independent children’s lawyer, there would be opportunity for the mother then to submit that the independent children’s lawyer not be the present independent children’s lawyer.
However, presently, I am not concerned with that, but solely the question whether the present independent children’s lawyer continue in her role as defined by the presently existing final consent orders.
Observations made during argument
Before proceeding further, it is necessary that I mention observations which I made during argument.
First, I observed that, on all of the material, the present “fight” seems to be between and amongst the lawyers rather than the parties, such that the parties' acrimony seems to have “spiralled upwards” so as to contaminate the lawyers’ ability to communicate civilly with each other. This is regrettable. Lawyers need to have the ability to deal with each other on a courteous professional level, regardless of the intensity of dispute between their clients. I observed “What hope have the parties got, if their lawyers are fighting? And then what hope have the children got?” I observed that there is an urgent need in this case for the lawyers to stop fighting, and an urgent need for realistic and immediate conciliation amongst the lawyers in the case, to enable them to treat each other more professionally, in the hope that the children’s best interests can be put before the lawyers’ arguments with each other.
Secondly, I observed that on the final day of the trial, when the consent orders were proffered, that was in the context of Dr w being not available for appointments until February 2011, but that if earlier appointments be available that would be great. However, at all times it was known that the mother would be likely to take the children overseas in the December 2010/January 2011 school holiday period; and certainly I anticipated, as the trial judge, that if earlier appointments with Dr W should become available, there would be reasonable notice to the parties of such availability of appointments, in particular because the “groundset” was that the therapy with Dr W would not commence until February 2011, indeed, after the children’s 2010/2011 school holiday period. The appointments which the independent children’s lawyer notified to the mother on about 12 November 2010 (see exhibit 2, and annexure DJR1 to Ms Rowland’s affidavit filed 18 November 2010) for appointments available for the children on 17 and 18 November 2010, to my mind, did not allow sufficient time for the mother, in all of the circumstances of the case, to reorganise or adjust to the altered “groundset”. As I observed during argument, I have no criticism of the independent children’s lawyer in seeking to take advantage of the opportunistically available earlier appointments with Dr W. However, in my view, the period of notice of the suddenly available earlier than anticipated appointments was short notice indeed.
Thirdly, during argument I observed that always it is essential that an independent children’s lawyer, when communicating with any third party consultant or expert, particularly if such be in writing, either simultaneously or immediately provide a copy of such to the parties. Regrettably, as will be seen, the independent children’s lawyer did not provide a copy of exhibit 1 to the parties and did not do so until the hearing on 30 November 2010.
Fourthly, during argument I observed that whilst there is a practice in some high conflict cases, even when final orders have been made, to order that an independent children’s lawyer not be discharged for a period of, say, 12 or 18 months, I have always struggled with this concept on the basis that such is an anomalous practice because an independent children’s lawyer is a lawyer funded by Legal Aid for the purpose of representing children in “proceedings”, so that once final orders are made and there are no longer any “proceedings”, and independent children’s lawyer’s role, necessarily, in short, is finished, there being no ongoing proceedings. I observed however that, despite this anomaly, as a matter of practice often such an order is made, for a monitoring or supervisory role, with Legal Aid, until recent times funding such role. I observed however that recently Legal Aid has made clear that it will not fund any ongoing role of an independent children’s lawyer once final orders are made. Whilst politically, and in practical terms, I have no criticism of Legal Aid in that stance, and philosophically it is correct, in that once final orders are made in proceedings they are “over”, such that funding for a continued lawyer for children in “proceedings” in that sense is anomalous, there is difficulty because if judges make a final order for any continued role of an independent children’s lawyer (as indeed I did in this case), it is an honorary role, that is, one without remuneration. Categorically, thus, it must be accepted that the independent children’s lawyer, since the final orders were made on 8 October 2010, has acted on the honorary basis without remuneration. The independent children’s lawyer, either in evidence or during argument, confirmed this, as indeed Ms Carmody of Counsel has today. However, be that as it may, and whether the independent children’s lawyer since 8 October 2010 has acted on the honorary basis or a remuneration basis, she has had the very limited role not of acting in any current “proceedings” but in concluded proceedings.
Fifthly, during argument I observed that as the proceedings are concluded, if I should now discharge the independent children’s lawyer, there are presently no “proceedings” on foot in respect of which or for the purpose of which I could now appoint a new independent children’s lawyer (implicit in the mother’s application), or if there be no new independent children’s lawyer (if I am wrong in the stated implication), the circumstance would be, in relation to the parties and their own lawyers, no one to liaise with Dr W as to appointments, or to co-ordinate that exercise, so that there would be “a rudderless ship in a stormy ocean”. Put shortly, if I should discharge the current independent children’s lawyer, the circumstance that there are no current proceedings on foot has effect that I would have no power to order the appointment of a new independent children’s lawyer.
Sixthly, the material shows an unfortunate mishap amongst the lawyers, (regrettably) concerning order 11, namely:
11.That neither party is to directly contact Dr [W] or his rooms in relation to appointments and in that regard all communications with Dr [W] is [sic] to be facilitated through the Independent Children’s Lawyer.
Apparently, Dr W requested of the independent children’s lawyer that the parties contact him (or his rooms) directly to make appointments themselves. The independent children’s lawyer communicated this request by Dr W to the parties’ solicitors, and sought thus that the parties make their own appointments. The response of the mother’s solicitors was to the effect that the independent children’s lawyer thus was inviting the mother to breach order 11. The inference in the mother’s material is that the independent children’s lawyer may have been “setting up” the mother for contravention proceedings by the mother (contrary to order 11) directly communicating with Dr W (or his rooms). However, the same request was made to both parties.
The reasoning behind order 11, I had initially thought, was that neither party have opportunity to “put a view” to Dr W as to substantive matters. This is not so, however, as each could do that in the counselling sessions.
In my view, because order 11 expressly provided that the parties not communicate with Dr W, or his rooms, “in relation to appointments”, it was inappropriate for the independent children’s lawyer to request the parties to do so, and it would have been appropriate simply for the independent children’s lawyer to explain to Dr W that the order, in effect, required the appointments to be made by her.
Against that necessary background of observation, I now turn to Mr Baston’s articulated complaints in support of the mother’s contention that the independent children’s lawyer has demonstrated actual or perceived bias against the mother, so that as between the mother and the father, she cannot now act, or at least be seen as acting, impartially.
The submissions with reference to the evidence
Mr Baston of Counsel, for the mother, referred to acts of the independent children’s lawyer, both during the trial, and since the final consent orders, submitting that the former colours the latter.
First, in relation to the trial, he said that ultimately the “sole issue” was the manner in which the children’s reintroduction to the father would occur, because the parties’ cases otherwise were “abandoned” on the first day. He said that the independent children’s lawyer had a “misapprehension” of that issue, and “believed” that the issue for trial was “whether the mother in the past had and in the future would foster time between the children and the father”, which was “the wrong issue.” He referred to the circumstance that none of the three experts in the case had identified conduct of the mother in alienating the children from the father, and to the transcript 7 October 2010 (fourth day of the trial), when he objected, on the ground of relevance, to questioning of the mother by Ms Carmody of Counsel, for the independent children’s lawyer, who responded by identifying “the case for the independent children’s lawyer” as follows:
MS CARMODY: Well, I understand that, your Honour, but the case for the ICL is that the mother will do just about anything to besmear the father, or keep the father out of the children’s lives, so that whenever anyone provides any criticism of the mother, her response is to attack and report them to some higher authority so that – and these are - - - (emphasis added)
Secondly, although the parties and the independent children’s lawyer agreed, for the purpose of the consent orders, order 12, that the independent children’s lawyer provide to Dr W only the five reports listed, for the purpose of the counselling, she provided to Dr W a copy of the orders and the reasons for judgment 8 October 2010. Mr Baston said that the mother had no difficulty with provision of the orders, but that the reasons for judgment contained, at pp 3-4, observations I had made (in transcript format), a part of which is earlier extracted, but which I will now, relevantly, set out in full:
HER HONOUR: Now, the other thing is even though it’s been necessary for me when formulating reasons to call it as I see it, to state what my reasons are and not pretend that there are other reasons, I hope that what I have stated in my reasons concerning the possibility of the mother seeking to avoid the weekend time with the father, or the resumed relationship with the father not working, does not have negative impact upon her.
The whole basis of our being here for the whole week has been to achieve what’s been achieved, and I can say that what’s been agreed between the parties - if I had reserved my judgment this afternoon - what’s been agreed between the parties with the assistance of their lawyers is very likely to have been my determination in any event. So everyone is ad idem there.
So I just wanted to say, Mr Baston, and I’m sure that in the debrief you’ll explain this fully to the mother, nothing that I have said in the last half hour or so is intended to be insulting to her, or to have shown any prejudgment that she has been the cause of the children not wanting to see the father. There may well be dual causes or a multiplicity of causes of that, and it’s to be hoped that Dr [W] can sort it out.
It’s just that I think that because of the past situation, particularly in the transition phase until the children get used to seeing the father, it seems to me that if [B] put on a turn and said “I’m not going, I hate him. Why are you doing this to me?” then the mother wouldn’t be able to get him there or would say, “It’s okay you don’t have to go.” It’s easier on the mother the way I’ve ordered it because she doesn’t have to worry. The kids will be at school on those Friday afternoons. Dad picks them up and that’s that, straight into the car. So that allows for the smoother possibility of transition.
Now, I will also place on the record an observation I made about my reason for making final orders, which is now by consent, but Ms Carmody and the independent children’s lawyer had a reservation about that, and I have made clear, and I will now place on the record, in case things go off track in future, that I’m mindful of the rule in Rice & Asplund (1979) FLC 90-725, but since then there have been the decisions of Miller & Harrington (2008) FLC 98‑283 at 72, and Marsden & Winch (2009) FamCAFC 152 at 41‑47 first sentence.
As the latter two authorities show the rule is now applied taking into account best interest considerations, and the Court also must apply the provisions of Division 12A of the Act. Now, as the trial judge in this matter I can state that the final consent orders which have been made, and the one which I have determined, are all predicated upon the notation to the orders that the parents acknowledge that the intention of the orders is to put in place a child focused means by which the children might be reintroduced to the father and spend substantial and significant time with him.
Order 18 is clear in its terms that upon - not if - but upon - a satisfactory reintroduction of the father into the children’s lives under the guidance of Dr [W] the children spend time with the father at all times as agreed between the parties, but failing agreement as set out. There is nothing in the orders that is predicated upon a presumption that if the proposed reintroduction fails then that’s the end of the matter and the boys and the father will continue to have no relationship. That’s not the way it works.
In my mind there is no doubt whatsoever that if a satisfactory reintroduction through Dr [W] is not achieved that in itself will be a significant and outstanding change of circumstances, not in the present relationship between the parties, but the predication of the success of these orders. If, therefore, they don’t work, and I sincerely hope that they do in the best interests of the children, if they don’t work then there will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him.
Thirdly, Mr Baston relied on the independent children’s lawyer’s observations to Dr W in her letter 9 November 2010, exhibit 1, second page:
Please note that neither of the parties is to bring any further material to their appointments and all arrangements regarding appointments are to be made through the Independent Children’s Lawyer to ensure that the process is not contaminated by the parties and in particular the Mother.
The parties are each paying one half of all fees associated with your professional assistance.
The writer suggests that the Mother in particular will need to develop appropriate strategies to help her facilitate time between the children and the Father and repair the damaged relationship that currently exists.
You will note from Dr [H’s] Report that the Father has not seen the children for a considerable period of time. Further, the Reports conclude that the Father is a rigid man who can not accept any responsibility for the current situation regarding his fractured relationship with the children. However, the writer and the Court witnessed the Father under cross examination and his demeanour in the witness box reflected a different personality to that which has been portrayed by the experts in their Reports.
Interestingly, the Mother under cross examination appeared to be not child focused and agreed that she had gone to extraordinary lengths to ensure that the Father be portrayed as a rigid, uncaring man prone to domestic violence. However, some of the evidence relied upon by the Mother to maintain that position was found to have been fabricated or supported by documents that had been falsified.
By way of example, the children blame the father for an incident at the International Airport wherein the Federal Police intervened to prevent the Mother and the children from leaving for an overseas holiday with her new Husband. The Mother was well aware that the Father had not involved the Federal Police but made accusation in the presence of the children that have manifested in the children steadfastly blaming the Father.
Be that as it may, we advise that the Mother and [her new husband] intend to take the children overseas at Christmas so it is hoped that you will have time to at least undertake at least one session with the parties and the children prior to the family’s departure. The Father has consented to the children spending the Christmas 2010 school holiday’s overseas and will therefore not have any contact whatsoever with the children during that time.
We do apologise for the delay in forwarding the material to you but the Orders, although made on 4 October 2010 were only received by the parties in the past two weeks. Further, we can confirm that the Mother and the Father have provided written authorities to enable the Independent Children’s Lawyer to discuss with you from time to time the progress of the matter.
Further, we advise that Dr [S] and Dr [H] are both aware of your upcoming involvement with the family and have indicated that they are more than willing to discuss their involvement with you.
Should you wish to discuss the matter please do not hesitate to contact the writer and we thank you for agreeing to assist this family and in particular the children. (emphasis added)
Whilst these were the principal matters of complaint, Mr Baston referred more generally to the mother’s supporting affidavit material, including that of her partner, and that of her solicitor, alleging dismissive treatment by the independent children’s lawyer of the mother, eg, “I don’t give a fuck about the experts’ reports” (denied by the independent children’s lawyer); that during the trial the independent children’s lawyer “continually rolled her eyes at the mother’s lawyer”, “sighed rudely” at comments made by her lawyer, “visualised” the father’s lawyer, when her lawyer defended her position, shaking her head in disagreement with the mother’s lawyer, passing notes to her barrister and “laughing and pointing” to what she had written; all of which the mother described as “schoolyard antics designed to intimidate and upset me” (also denied by the independent children’s lawyer). The mother further alleged that during the trial I, as the trial judge, “acknowledged” that the independent children’s lawyer was “acting emotionally”. The independent children’s lawyer, in her affidavit, said:
11.I refer to paragraph 14 and deny that I conducted myself in the manner alleged by the mother. Further, I say that such a display of professional (and personal) discourtesy was highly improbable and would not have been tolerated in Her Honour Justice O’Reilly’s Court.
12.I refer to paragraph 15 and say that I have no recollection of her Honour stating that I was acting emotionally, or in fact, of saying anything to that effect.
There are other allegations in the mother’s material to which I will not specifically refer, save in respect of correspondence after the trial (email independent children’s lawyer to the mother’s solicitor 12 November 2010, annexure 1 to Ms Rowland’s affidavit) in which reference was made by the independent children’s lawyer to S & E (unreported) BR2362 of 1998, Warnick J, 10 July 2000, with apparent implication, by reference to that decision, that the mother may be likely to fail to present the children for scheduled appointments, and an in terrorem implication, by that reference, that if the mother should not present the children to Dr W for the 17 and 18 November 2010 appointments the mother would be in contravention of the consent orders, particularly in the circumstances in which the mother said she has “never failed to present the children for scheduled appointments”. The independent children’s lawyer defended reference to this decision on the basis that “It is a decision to which I refer in many of my ICL cases and is directed to the compliance of parties.”
Mr Baston submitted that the independent children’s lawyer’s conduct, even in relation to the first three matters to which I have referred (the others mentioned being controversial), in conjunction show actual or at least perceived bias by the independent children’s lawyer against the mother on the basis that the “clear effect” of those matters evidence what a reasonable person would infer as bias.
He submitted that the issues at trial ultimately had “limited focus”; that the consent final orders limited the information the independent children’s lawyer was to provide to Dr W “as agreed between the parties” as the only material that was to go to Dr W; and that Dr W was intended to have a counselling, not investigative role, not such as to be “tainted” by the independent children’s lawyer’s views against the mother and favourable to the father, as exhibit 1 portrays, particularly as Dr W was not to provide any investigative report leading up to a trial but counselling after a trial. Mr Baston pointed further to the circumstance that despite request by the mother’s solicitors, the independent children’s lawyer flatly had refused to provide to them a copy of exhibit 1, which was dismissive of the mother, and a copy of which was not provided until the hearing on 30 November 2010, upon my stressing that a copy must be given to the mother’s and the father’s solicitors.
Mr Smith of Counsel, for the father, submitted shortly that “the trial is over”, and the independent children’s lawyer’s role now is only “to facilitate” attendances on Dr W, as provided in orders 7 and 11 of the final consent orders, and to monitor progress of the counselling, as provided in order 9, order 12 now having been performed. He referred to Pagliarella & Pagliarella (1993) 16 FamLR 688, a decision of Hannon J referred to in Knibbs & Knibbs [2009] FamCA 840 at [36]-[37], Murphy J, as having effect that even if an independent children’s lawyer at a very early stage of a trial forms an adverse view about a party, such does not necessarily result in the discharge of an independent children’s lawyer, but submitted that in this case, in any event, there is now no circumstance for the independent children’s lawyer “to make any submissions to a judge about anything”, but rather there is now only a “therapeutic process” to be undertaken by Dr W. He submitted thus that, even if the independent children’s lawyer may have shown bias, actual or perceived, “in the trial phase”, the position is now “post-trial”, such that the role of the independent children’s lawyer is “different”, she now having only “an administrative role”. He submitted thus that even having regard to exhibit 1, there can be no criticism of its content having regard to her role to act in the children’s best interests.
Ms Carmody of Counsel, for the independent children’s lawyer, submitted, based upon earlier observation by me, that as final orders have been made there are no “proceedings” from which the independent children’s lawyer can be discharged. She submitted further that the role of the independent children’s lawyer, in any event, is not now as a mere “conduit” to convey “verbatim” what was agreed between the parties to Dr W, but that her role is “far more sophisticated and complex than that”. She referred to section 68LA(2)(a) and (5)(a) of the Family Law Act 1975 (Cth) in relation to the obligations of an independent children’s lawyer to form an independent view of what is in the best interests of children, and to act impartially in dealings with the parties, submitting that “dealing with experts” is a “sophisticated” matter, and that thus is was not “wrong” of the independent children’s lawyer to convey to Dr W her views of the matter, acting in the children’s best interests.
Ms Carmody relied upon the principles in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 (to which I will refer below) as to the need for the Court to treat allegations of lack of impartiality with caution, and that it would be “intolerable” if an independent children’s lawyer could be removed if a party perceived that he or she was not “on side”. Ms Carmody submitted that order 9 has effect that the independent children’s lawyer has more than a “conduit” role, but one to be able to “engage” with Dr W as to progress of the counselling, such that exhibit 1, and the provision to him of the reasons for judgment, including the judicial observations in transcript format (pp3-4 as set out above) was proper conduct by the independent children’s lawyer, for “meaningful interaction” between Dr W and the independent children’s lawyer, for the purpose of order 9, and that the provision to Dr W of those materials should be seen in that context.
In reply, Mr Baston reiterated that the consent orders were “premised” upon the independent children’s lawyer providing to Dr W only the five reports referred to in order 12; and that order 9 did not extend that, as submitted by Ms Carmody.
In reply, Mr Smith referred to Knibbs (above) at [36]-[37], already mentioned, in the context of its reference to Pagliarella (already mentioned).
Relevant principles
It is convenient to refer to Kingley & Arndale (No 2) [2010] FamCA 968, 8 October 2010, in which very recently I considered the principles relevant to applications for the discharge of an independent children’s lawyer, at [26]-[35]:
26.In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to some of the authorities concerning the role of an independent children’s lawyer. Saliently, I would refer to two of those authorities, which emphasise that the role is one of independence, and that whilst the duty of an independent children’s lawyer is to act impartially, it is not inconsistent with that duty for an independent children’s lawyer, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action.
27.The first is Harris & Harris (1977) FLC 90-276 at 76,476 in which Fogarty J remarked that the role of an independent children’s lawyer has unusual features, which he identified as including that an independent children’s lawyer does not necessarily advance what his or her “client” wants but what is in the best interests of that “client” (being a child) and to that extent exercises an independent judgment “quite out of character with the position ordinarily occupied by an advocate”.
28.The second is Bennett & Bennett (1991) FLC 92-191 (Full Court) at 78,259:
…We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duty to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative. …
(See further per Murphy J in Knibbs at [34-35]).
29.As to applications for the discharge of an independent children’s lawyer, in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 (referred to by Murphy J in Knibbs at [38]-[39]) Holden CJ expressed that a court should be slow to discharge an independent children’s lawyer, and that in his view it is only in cases of actual rather than perceived impartiality that consideration should be given to the discharge of an independent children’s lawyer. It is convenient to set out Murphy J’s text in Knibbs:
38. Each of the parties in these proceedings relied upon the decision of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. In that decision, His Honour referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.
39. The reasons why that is so, as identified by His Honour include:-
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative”.
30.Murphy J in Knibbs at [40] said that he did not necessarily agree with the last of these statements, that is, that it is only in cases of actual rather than perceived impartiality that such consideration should be given, but he did not elaborate on this.
31.For my part, respectfully I am in agreement with Murphy J that is it not only in such cases, that is, cases of actual rather than perceived impartiality that such consideration should be given for the reason that justice must not only be done but be seen to be done in the proper administration of the justice system. This is the underlying philosophy of the apprehended bias principle. Thus, in my view, it is appropriate to consider the removal of an independent children’s lawyer if actual bias be demonstrated, or apprehended bias. 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.
32.In this regard, the authorities concerning apprehended bias in judges are analogous, and it is relevant to refer to High Court authority on the point.
33.In Johnson & Johnson (2000) 201 CLR 488 at [11]-[14], the majority made clear that the test for the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the question the judge is required to decide. By analogy, I would interpolate that in relation to an independent children’s lawyer the appearance of bias may be tested by whether a fair‑minded lay observer might reasonably apprehend that the independent children’s lawyer might not bring an impartial or unprejudiced mind to the task of independently representing a child. In Johnson, their Honours made clear also that the hypothetical fair-minded lay observer of conduct is postulated in order to emphasise that the test is objective. See also Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8].
34.In Antoun v The Queen [2006] HCA 2 at [34] Kirby J in relation to recusal by a judge said:
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this Court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal. (footnotes omitted.)
35.Although dealing with recusal by a judge in that case, as opposed to an application by a litigant for the removal of an independent children’s lawyer, as in this case, it seems to me that the same principle applies, namely, that in the administration of justice in Australia in the family law system the parties do not have an entitlement to choose who may be the independent children’s lawyer to represent the child, nor seek to change an appointed independent children’s lawyer, other than on the ground of demonstrated actual or apprehended bias.
Analysis and decision
First, I would reiterate my view, expressed in Kingley at [31], that it is not only in cases of actual rather than perceived impartiality that consideration can be given to the removal of an independent children’s lawyer, for the reasons there stated.
I am not satisfied that any conduct of the independent children’s lawyer during the trial was such as to amount to any actual or perceived bias. Indeed, as the trial is over, and resulted in consent orders, it is not necessary for me to make findings as to her alleged conduct during the trial. I do not recall “acknowledging” that the independent children’s lawyer was “acting emotionally” during the trial, as alleged by the mother, nor reprimanding her for such. Even if that occurred, however, the trial is over.
Perhaps, during the trial, the independent children’s lawyer was abrasive to the mother and/or her solicitor. I make no finding about this.
Perhaps, because of the matters initially in issue at the trial, the independent children’s lawyer considered that even after “narrowing” of the issues, to the “sole issue”, the background issues did not suddenly become irrelevant.
I appreciate that Mr Baston relies on alleged conduct of the independent children’s lawyer during the trial, including as to alleged misapprehension as to the “sole issue” for trial, as showing predisposition against the mother, both factually during the trial and cumulatively by way of background to his criticisms of the independent children’s lawyer concerning page 2 of her letter 9 November 2010, exhibit 1, sent to Dr W, and of her sending of the reasons for judgment to him, containing the judicial observations which I made.
It is regrettable, I think, that the independent children’s lawyer saw fit to send these materials to Dr W. Mr Baston has no criticism of the independent children’s lawyer providing the orders to Dr W, although that was outside order 12. The provision of the reasons for judgment, I think, was “innocent”, as was the provision of the orders, and not capable of amounting to actual or perceived bias. Probably, the independent children’s lawyer regarded provision of the reasons for judgment to Dr W as a mere formality, as much as the formality of the provision of the orders. In my view, there is no demonstrated actual bias in this conduct, and, as to perceived bias, the objective bystander (fair-minded lay observer) would not perceive bias in this conduct.
The inclusion in exhibit 1, however, of the independent children’s lawyer’s observations, at page 2, plainly would convey to Dr W the independent children’s lawyer’s strong views against the mother, and favouring the father, in particular, in relation to her expressed view that the mother might “contaminate” the therapeutic process and so amount to actual and/or perceived bias.
In my view, the independent children’s lawyer was entitled to hold these views, particularly after the trial process was concluded, but she ought not have expressed them to Dr W, in the manner in which she did, particularly having regard to order 12 of the consent orders and the formality attaching to them.
However, there are no proceedings now in respect of which the independent children’s lawyer can be removed, or discharged.
The proceedings are concluded, so that the mother’s application, based on actual or alternatively perceived bias, in my view is misconceived.
In relation to Dr W, if damage be done by the provision by the independent children’s lawyer to him of exhibit 1, and the reasons for judgment containing the judicial observations made, it is done. However, Dr W is well known to the Court as very independent, and no one’s “tool” in litigation, or otherwise. He is a very experienced child psychiatrist, and the parties and the children are fortunate indeed to have him take on the therapeutic role, at short notice. In my view, Dr W will bring his expertise to the role required of him, independently, regardless of what the independent children’s lawyer has communicated to him.
It is poignant, I think, that, whilst Mr Baston sought the discharge of the independent children’s lawyer, discharge of Dr W, expressly, was not sought.
So what purpose is to be achieved, if I were now to remove or discharge the independent children’s lawyer? There is no longer a current forensic dispute. There are no proceedings.
The circumstance that there are no proceedings has effect that to remove the independent children’s lawyer now would be a futile exercise and, as I earlier observed, the effect would be, in relation to the parties and their own lawyers, no one to liaise with Dr W as to appointments, or to co-ordinate that exercise, so there would be as I described earlier a “rudderless ship in a stormy ocean”, that is, no one to facilitate the appointments with Dr W and ensure the parties and the children’s attendance.
Such plainly would not be in the children’s best interests, to the extent that such continues to be relevant, in relation to procedural applications after the conclusion of a trial, as to which I express no view.
I would re-iterate however my view that now that the proceedings are concluded, if I were to remove the independent children’s lawyer, I would have no power to appoint a new independent children’s lawyer, in her place, as there are no proceedings on foot.
I would conclude that the independent children’s lawyer, by way of exhibit 1, has expressed unequivocal views about the mother and the father to Dr W. She was entitled to hold those views, both during the trial and after it, but within the confined ambit of order 12 not to provide her views in the manner in which she did to Dr W. However, although the independent children’s lawyer ought not have expressed her views to Dr W in the manner in which she did, at that stage, but sent the materials in order 12 with a formal covering letter only, nonetheless it would have been open to her, I think, to express those views to him in the course of “discussing” the progress of the parties’ counselling with him pursuant to order 9. The expression of concluded views, especially after a trial, in this context would have been within her proper function.
None of this matters, however, because there are no longer any proceedings.
I would add that I doubt that the independent children’s lawyer’s views expressed to Dr W will influence him. Even if they do, he has a therapeutic, not forensic role. Despite exhibit 1, and order 12, Dr W always would have independent opportunity to explore therapeutically with each of the mother and the father separately, and by way of order 9 with the independent children’s lawyer, the matter of the children’s re-introduction to the father and from each of the mother’s and the father’s perspective and the independent children’s lawyers perspective what “went wrong” to cause the children’s estrangement from the father.
I would further add that if there should be any future proceedings concerning the children the circumstances described are such that there should be an independent children’s lawyer other than the present independent children’s lawyer. Historically, for the purpose of any new proceedings, I would observe that the present independent children’s lawyer took over the matter fairly recently from another independent children’s lawyer, so that it is not as if the children’s best interests would be served by the maintenance of an independent children’s lawyer long involved in the matter.
The result is that I will order that the mother’s application filed on 18 November 2010 for the discharge of the independent children’s lawyer, and other orders, is dismissed.
To make more clear my reasons, even if all or some of the mother’s complaints would have been sufficient to remove the independent children’s lawyer during the trial for actual or perceived bias, there is no basis to remove her now in the post-trial phase because, as put by Mr Smith, there is no case now to be put before any judge, and no proceedings in which the independent children’s lawyer could make submissions on any matter to be determined by a judge and thus, the current independent children’s lawyer is incapable of acting impartially in any current proceedings between the mother and the father.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 6 December 2010.
Associate:
Date: 25 January 2011
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