Bradshaw & Bradshaw

Case [2022] FedCFamC1F 930

Federal Circuit and Family Court of Australia

(DIVISION 1)

Bradshaw & Bradshaw [2022] FedCFamC1F 930

File number(s): NCC 535 of 2022
Judgment of: MCGUIRE J
Date of judgment: 1 December 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father for the removal of the Independent Children’s Lawyer – Allegations that the Independent Children’s Lawyer lacked impartiality, failed to properly fulfil her duties to the Court, failed to properly promote the best interests of the child and has not adhered to appropriate professional standards – Where there is no justification for the Independent Children’s Lawyer’s removal – Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 68 and 68LA
Cases cited:

Dean & Susskind [2012] FamCA 897

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Knibbs & Knibbs [2009] FamCA 840

Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165

Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

Vale & Vale [2016] FamCA 307

Division: Division 1 First Instance
Number of paragraphs: 49
Date of hearing: 24 November 2022
Place: Hobart
Counsel for the Applicant: Ms Otrebski
Solicitor for the Applicant: Powe & White Family Lawyers
Counsel for the Respondent: Ms Goodchild
Solicitor for the Respondent: Halyburton Legal

ORDERS

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BRADSHAW

Applicant
AND:

MS BRADSHAW

Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:

MCGUIRE J

DATE OF ORDER:

1 December 2022

THE COURT ORDERS THAT:

1.Order 10 of the Further Amended Response to an Initiating Application filed by the father, Mr Bradshaw, on the 19 October 2022 to have the appointment of the Independent Children’s Lawyer discharged is dismissed, and the balance of the Orders sought in that Further Amended Response be listed for hearing in the Federal Circuit & Family Court of Australia before a Senior Judicial Registrar at 2.15pm on 19 December 2022 by Microsoft TEAMS.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under the pseudonym of Bradshaw & Bradshaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGUIRE J

applications

  1. This is an application by the father, Mr Bradshaw, to discharge the independent children's lawyer (“ICL”) Ms B.  That application is opposed…

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AGLC
Bradshaw & Bradshaw [2022] FedCFamC1F 930
Case
[2022] FedCFamC1F 930
Decision Date

CaseChat Overview and Summary

The case of Bradshaw & Bradshaw involves parties who were in a relationship from 1994 and married in 2004. They separated in February 2022, and the proceedings were commenced by the mother on 3 March 2022. The matter concerns the status and conduct of the Independent Children's Lawyer (ICL) appointed to represent the interests of their child, X, born in 2010. The primary legal issues revolved around the father's allegations of bias and lack of professional diligence on the part of the ICL, as well as her handling of the child's views and evidence. The father contended that the ICL improperly influenced the child's decision to spend time with the mother, failed to formally present the child's views to the court, and did not seek an expert report critical to the interim parenting applications. Additionally, the father claimed the ICL did not issue subpoenas for relevant evidence and selectively tendered parts of subpoenaed records.

The court considered the established principle that a court should be cautious about discharging an ICL based on unsubstantiated complaints from a party. The judge emphasised that the ICL's duty to act independently and in the best interests of the child does not mean they must align with either parent's position. The court held that the appearance of partiality alone is insufficient to warrant the removal of an ICL. In this case, the court found that the father's complaints did not demonstrate a sufficient lack of objectivity and professionalism on the part of the ICL to justify her discharge. The ICL had acted within the bounds of her duty and had not demonstrated bias or a dereliction of her professional responsibilities.

The court's reasoning was grounded in the principle that the ICL's role involves making challenging and confronting submissions to parents, which does not necessarily indicate a lack of impartiality. The judge noted that the ICL had met with the child, inspected subpoenaed material, and engaged with the family therapist, all within the scope of her duties. The father's perception of partiality did not meet the threshold for discharging the ICL. The court concluded that the ICL had not acted in a manner that warranted her removal from the case.

The final orders of the court were that the ICL was to remain in her role to continue representing the interests of the child, X, in the ongoing interim parenting applications. The court underscored the importance of allowing the ICL to fulfil her duties without undue interference based on unsubstantiated perceptions of bias.

Orders

Orders of the court

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Background

Background to the litigation

There are other matters pending including interim parenting applications which logically should await my determination as to the status of the ICL.Background The parties were in a relationship from 1994. They married in 2004. Separation took place on 12 February 2022. There is one child of the parties namely X (“X”) born 2010 and hence 12 years of age. X has remained in the care of the father since separation and in the former matrimonial home. These proceedings were commenced by the mother in an application filed 3 March 2022. A Senior Judicial Registrar (“SJR”) made interim orders on 12 April 2022 confirming in the interim that X remain living with the father, but ordering time with the mother ultimately each second weekend and each Wednesday from 3:30pm until 7.00pm all being subject to the recommendation/approval of a family therapist where orders were made on the same day for family therapy. It is generally agreed that X’s time with the mother has not happened consistently or in accordance with the Court Orders and hence the competing interim parenting applications are again before this Court. The ICL was appointed on 25 May 2022. The ICL met with X at his home in C Town on 9 July 2022. The father first raised his issues with the ICL in a case summary document filed the day prior to a listing before the SJR on 4 October 2022. The SJR made orders for the father to properly serve an Application in a Proceeding with the supporting affidavit. On 10 October 2022 orders were made listing the issue of the status of the ICL before me for hearing on 24 November 2022. The hearing took place on that day. All parties were represented and had filed appropriate affidavit material. The hearing took place on the papers and by way of submissions but without cross-examination.the evidence The father relied on four affidavits (without objection) filed 19 October 2022, 13 September 2022, 29 March 2022 and 24 March 2022. The mother relied on her affidavits filed 8 June 2022, 9 September 2022 and 1 March 2022. The ICL relied on her own affidavit affirmed 17 November 2022. It is fair to note that some of the affidavits set out above were primarily to be relied upon in the forthcoming interim parenting hearing.the issues From the material before me and the helpful submissions of counsel, it seems that the father's complaints against the ICL come under two broad limbs being:(i)a dereliction of her duty and/or lack of professional diligence in the role of ICL; and(ii)criticism of direct interaction with the child leading to perceptions of bias or predetermination in favour of the mother's case. More succinctly, the father's case outline at [4] particularises his complaint as follows: (a)The evidence of the father is that the child advanced a 'view' to the Independent Children's Lawyer that he would spend time with his mother on the basis that the Independent Children's Lawyer said that if he didn't, he would be removed from the care of the father.(b)The Independent Children's Lawyer has not affirmed any evidence to contradict the evidence of the father. The Independent Children's Lawyer has had weeks to do this. Her failure to contradict, in a sworn document this allegation, gives rise to an adverse inference needing to be drawn against the Independent Children's Lawyer.(c)Notwithstanding the professional impropriety of the Independent Children's Lawyer in eliciting the child's views, the Independent Children's Lawyer has failed to formally put the child's views before the Court, she has not sought to obtain an expert report which must be critical in determining the interim applications of the parties, noting that she seeks a change of residence of the child when the evidence supports the conclusion that the child does not want same.(d)The Independent Children's Lawyer has yet to issue one subpoena in the matter, including evidence from the child's school and treating counsellor.(e)When the father issued a subpoena to obtain such records, the Independent Children's Lawyer has only sought to tender very selective parts of the records.

Evidence

Evidence Before The Court

On 10 October 2022 orders were made listing the issue of the status of the ICL before me for hearing on 24 November 2022. The hearing took place on that day. All parties were represented and had filed appropriate affidavit material. The hearing took place on the papers and by way of submissions but without cross-examination.the evidence The father relied on four affidavits (without objection) filed 19 October 2022, 13 September 2022, 29 March 2022 and 24 March 2022. The mother relied on her affidavits filed 8 June 2022, 9 September 2022 and 1 March 2022. The ICL relied on her own affidavit affirmed 17 November 2022. It is fair to note that some of the affidavits set out above were primarily to be relied upon in the forthcoming interim parenting hearing.the issues From the material before me and the helpful submissions of counsel, it seems that the father's complaints against the ICL come under two broad limbs being:(i)a dereliction of her duty and/or lack of professional diligence in the role of ICL; and(ii)criticism of direct interaction with the child leading to perceptions of bias or predetermination in favour of the mother's case. More succinctly, the father's case outline at [4] particularises his complaint as follows: (a)The evidence of the father is that the child advanced a 'view' to the Independent Children's Lawyer that he would spend time with his mother on the basis that the Independent Children's Lawyer said that if he didn't, he would be removed from the care of the father.(b)The Independent Children's Lawyer has not affirmed any evidence to contradict the evidence of the father. The Independent Children's Lawyer has had weeks to do this. Her failure to contradict, in a sworn document this allegation, gives rise to an adverse inference needing to be drawn against the Independent Children's Lawyer.(c)Notwithstanding the professional impropriety of the Independent Children's Lawyer in eliciting the child's views, the Independent Children's Lawyer has failed to formally put the child's views before the Court, she has not sought to obtain an expert report which must be critical in determining the interim applications of the parties, noting that she seeks a change of residence of the child when the evidence supports the conclusion that the child does not want same.(d)The Independent Children's Lawyer has yet to issue one subpoena in the matter, including evidence from the child's school and treating counsellor.(e)When the father issued a subpoena to obtain such records, the Independent Children's Lawyer has only sought to tender very selective parts of the records. To have an understanding and context to the father's complaints it is necessary to give some chronology as to the appointment and activity of the ICL since her appointment where I do not understand the following chronology to be challenged:·The ICL was appointed on 25 May 2022.·The ICL filed a Notice of Address for Service on 1 June 2022.·On 4 June 2022 the ICL provided a requisite Undertaking to the Court to gain access to material produced to the Court by NSW Department of Communities and Justice and New South Wales Police. ·On 6 June 2022 the ICL served the solicitors on the record for each of the parents with a Notice of Address for Service and appropriate literature. ·The ICL received the information sheet from the father on 28 June 2022 and a further information form on 13 September 2022. The mother's information sheet was provided on 5 August 2022.·An order for family therapy had been made in the orders of 12 April 2022 prior to the appointment of the ICL.·On 8 July 2022 the SJR made further interim and interlocutory orders including that the previously ordered family therapy be reportable.·On 8 July 2022 the ICL wrote to the parties nominating the family therapist.·On Saturday 9 July 2022 the ICL met with X at his home in C Town being approximately 91 kilometres from the ICL.·On 4 August 2022 the ICL emailed the solicitors for each parent referencing her meeting with X on 9 July.·On 9 August 2022 a court ordered Family Dispute Resolution Conference was held but without resolution of any issues.·The matter was listed before the SJR on 11 August 2022 and then further listed for interim hearing on 4 October 2022.·The ICL was on leave overseas between 19 August 2022-19 September 2022.·On 6 and 12 September 2022 the parties and the ICL received email correspondence from the family therapist.·On 30 September 2022 the ICL inspected subpoenaed material at the Registry and conducted further inspection on 1 November 2022.·On 4 October 2022 the matter was listed for further interim hearing before the SJR where upon the father, without formal application, first raised the issue of discharge of the ICL. The applications were then properly adjourned.·On 6 October 2022 the ICL issued a subpoena to the family therapist.·On 26 October 2022 the ICL wrote to the family therapist requesting a report.·The father's interlocutory application and supporting affidavit in respect of the issue of the status of the ICL were both filed 19 October 2022. The ICL filed an affidavit in response on 17 November 2022.Relevant law

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The father here argues, on one limb, that the ICL is biased against him and/or has predetermined the issue in favour of the mother and in that sense has not acted impartiality. It is well-established that such bias may be of either actual or apprehended/perceived basis.[6] Forest J considered in great detail the concept of apprehended bias in Vale & Vale[7] as follows: [6] Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.[7] [2016] FamCA 307 (footnotes omitted).26.I am quite satisfied that it is accepted principle that the Court should be slow to discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.27.I consider the words of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 apposite. His Honour said:A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] 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 [ICL] 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 [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.28.As Murphy J pointed out in Knibbs at [43]-[45], there will be times when the ICL, acting completely within the bounds of his or her duty and in accordance with their independent, professional opinion, as to what is in the best interests of the children in the case, will say and do things that might very well have the appearance of partiality even, perhaps, to the objective bystander. The ICL’s duty and obligations do not require, again as Murphy J said in Knibbs at [49], the ICL to act as merely “a benign or ambivalent mouthpiece for competing evidence.” It is not uncommon for the ICL to make or cause submissions to be made on his or her behalf by counsel that are completely at odds with the position adopted by one parent and completely consistent with the position adopted by the other parent. The objective bystander might look to that and reasonably consider that the ICL appears to be partial towards one party’s position rather than the other. That does not mean though that the ICL should, on the application of an unhappy parent with whom the ICL is at odds, be discharged from the case.29.Like so many matters in this Court, it will, in my opinion, be a matter of considering the evidence presented on each application for the discharge of an ICL to determine if the evidence demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal.30.Parents who are involved in litigation in this Court about their children need to understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case. The ICL might seek from the Court orders completely contrary to orders sought by one or both of the parents. That does not mean the ICL is not acting independently and impartially in the best interests of the children.CONSDERATION