Bradshaw & Bradshaw
[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
This is an application by the father, Mr Bradshaw, to discharge the independent children's lawyer (“ICL”) Ms B. That application is opposed by the mother, Ms Bradshaw, and the ICL.
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.
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
The Court has inherent jurisdiction and hence power to control its own proceedings including the power to both appoint and discharge an ICL. Such power is by its nature discretionary.
Specifically, the power to appoint an ICL is provided at s 68L of the Family Law Act 1975 (Cth) (“The Act”).
Section 68LA sets out the role of the ICL and, given the father's complaints, is worthy of incorporation in these reasons as follows:
68LA 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.
Further, the Court has publicly provided guidelines for the role and conduct of the ICL relevantly, I extract the following from those guidelines:
·That the role of the ICL is unique in the context of solicitor/client relationships in this jurisdiction.
·The ICL holds a discretion as to how he/she progresses the case subject only to statutory requirements and the ICL is expected to use professional judgement and skill subject to any directions or orders of the Court.
·The availability of funding is a practical constraint.
·The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in their professional responsibilities.
·The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision–making about the proceedings. However, this does not mean that the child is the decision-maker.
·Factors such as the extent to which the child wishes to be involved and the child's age/developmental level, cognitive ability/emotional state are factors to be considered by the ICL and may change over the course of the appointment.
·The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.
·The ICL must be truly independent of the Court and the parties to the proceedings.
·The professional relationship provided by the ICL will be one of a skilful, competent and impartial best interests advocate. It is the right of the child to establish a professional relationship with the ICL.
·The ICL should seek to work together with any family consultant/court expert/or other relevant expert to promote the best interests of the child.
·The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child’s best interests.
·The ICL should bring to the attention of the Court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.
·The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.
·The ICL does not take instructions from the child but is required to ensure the Court is fully informed of the child's views, in an admissible form where possible.
·The ICL is to ensure that the views and attitudes brought to bear on the issues before the Court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.
·The ICL 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 the course of action.
·In considering any views expressed by the child and the steps to be taken in the matter, the ICL is to be aware of:
(i)that each child will have different emotional, cognitive and intellectual developmental levels, family structures, family dynamics, sibling relationships, religious and cultural backgrounds; and
(ii)the children are vulnerable to external pressures when caught in disputes involving the parents.
·When meeting with a child the ICL should explain appropriately the role of the ICL including limitations of that role together with the Court process and the involvement of any other relevant agencies.
·Where an ICL does not have the ability to guarantee a child a confidential relationship, the ICL should nevertheless strive to establish a relationship of trust and respect.
·It is not the role of the ICL to conduct disclosure interviews; become a witness in the proceeding; or conduct therapy or counselling of the child.
·The ICL should provide the child with the opportunity to express his or her views free from the influence of others but not be pressured towards such views if they are unwilling.
·In making submissions as to the weight to be placed on a child's views the ICL may consult with single experts or a family consultant.
·The ICL should inform the child if it is their intention to make submissions contrary to the child's views.
·The ICL is to remain independent, objective and focused upon promoting the child's best interests in all dealings with the legal representatives of the parties.
Numerous authorities, including the recent decision of Lim & Zong[1] have considered applications for the discharge of an ICL and suggest a broad range of rationale for such an order including but not limited to:
(i)acting contrary to the child's interests;
(ii)incompetence;
(iii)lack of professional objectivity; and
(iv)conflict of interest.
[1] (2021) FLC 94-048.
It is consistent with the role of the ICL and professional discharge of obligations for the ICL to advocate a particular course of action adverse to, or consistent with the position of a party.[2]
[2] Dean & Susskind [2012] FamCA 897.
The role of the ICL is not a passive one and by its nature should be proactive and at times robust in advocating for the child's best interests.[3]
[3] Knibbs & Knibbs [2009] FamCA 840 at [33]-[61] (“Knibbs”).
The role of the ICL is independent and it is inappropriate for a litigant to micro–manage or critique every step taken by the ICL.[4] It is generally agreed that a court should be slow to discharge an ICL on the basis of largely unsubstantiated complaints of one or other of the parties by the very reason that it is equally likely that one or other of the parties will be in disagreement with or aggrieved by the decisions or process taken by the ICL.[5]
[4] Knibbs [52].
[5] Lloyd & Lloyd & the Child Representative (2000) FLC 93-045.
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
Firstly, the father argues that the ICL has been derelict of or dilatory in the discharge of her duties and obligations
I set out above my understanding of the chronology of the relevant activities or interventions of the ICL since her appointment on 29 May 2022. Notably, the first interim hearing took place before the appointment of the ICL. I have listed a second and subsequent interim hearing for 19 December 2022. That second hearing was anticipated to take place before the SJR on 4 October 2022 but did not proceed apparently because of the issue of the status of the ICL being raised by the father only on the previous day and without a proper form of application.
Specifically, since her appointment the ICL has met the child (9 July 2022) and made arrangements for family therapy. On the day of this hearing I made consent orders for the preparation of a family report pursuant to s 62G of the Act. The ICL has corresponded appropriately with the solicitors for the parties when necessary and in an indicative/explanatory form by email of 4 August 2022.
Specifically, the father complains that the ICL has failed to put X’s views before the Court. Noting the chronology above and that a second interim hearing is not anticipated until 19 December 2022, I fail to understand the force of this complaint where, in any event, the father himself forcibly puts his son's views. The ICL has a broad discretion as to how she formulates and presents her case including how and when to place a child's views before a Court. Notably, annexures to the ICL's affidavit suggest that the father himself relies on s10D of the Act in opposing exposure or transparency of any information from the (apparently short lived) family therapy sessions. Specifically, however, the father does not assist in saying when he expected the child's views to be put before the Court given the above chronology.
Further, the father complains of “selective tendering of documents” by the ICL. Put simply, it is for the ICL to present her case including the tendering of material or parts thereof which she thinks relevant to the child's best interests. She is not the advocate for either of the parties.
Again, the father does not particularise what documents he claims should have been tendered by the ICL and when and presumably being documents he was unable to tender himself.
Further, the father asserts that the ICL has not issued any subpoena. He does not particularise what subpoena should have been issued by the ICL where presumably he would have been unable to do so himself and his complaints suffers similar to the previous particular.
Given the above, I can only conclude that in respect of this particular of complaint the father has not discharged his onus of proof, to the relatively high standard of “on the balance of probabilities,”[8] that the ICL has been dilatory or in dereliction of her duties. To the contrary, the evidence suggests to me that the ICL has been active and attentive to her role.
[8] Section 140 of the Evidence Act (Cth) (1995)
Secondly, and broadly, the father argues that the ICL has not acted impartially with the implication being that the ICL has adopted the position of the mother and/or has not accepted the views and preferences of the child in that she has “threatened” X to the effect that should X not go to the mother in accordance with the interim orders then he would be taken from the father and placed into the care of the mother such placing stress and pressure on X for him to articulate a view consistent with that of the ICL.[9]
[9] See [4] of father’s affidavit affirmed 18 October 2022
Somewhat disturbingly, the father annexes to his affidavit of 18 October 2022 a letter purported to be written by X where the father says at [2] of his affidavit:
Specifically, [the ICL] met with [X] in mid-July 2022. Upon the conclusion of this meeting, [X] gave to me a note he had prepared following his meeting with the Independent Children's Lawyer. Annexed hereto and marked “A” is a copy of the note [X] gave to me.
I have real concern as to the father's annexing the letter to his affidavit should it have been penned by X. It is trite to observe that these Courts strive to quarantine children from direct involvement in parents’ disputes about their children. Children are not permitted to themselves swear affidavits where a parent having a child do so is arguably a contempt.
Counsel before me shared my concerns. Notably, this hearing proceeded on the papers and the father was not put to cross-examination on the source of and background to this letter coming about. Ultimately, and against my better judgement, I agreed to read the letter. Suffice to say it does not alleviate but perhaps adds to my concerns. The letter is undated. Its contents clearly constitute what the father alleges to have been a “threat” to X that if he did not go to his mother in accordance with the Court orders then, “my dad will be in trouble”.
The meeting between the ICL and X took place on 9 July 2022. X’s alleged but undated letter is not provided by the father until annexed to his affidavit of 18 October 2022. Between those dates the father swore an affidavit on 13 September 2022. It is a more comprehensive and particularised affidavit. It does not reference X’s letter which according to the later affidavit was provided “upon the conclusion of this meeting (9 July 2022)”. The father does, however, at [25] reference X making a verbal statement to him thus:
That lady told me that if I don't see my mother I will be taken off you. I told her that I would see her if it meant that I didn't have to leave home. I didn't mean it dad but she scared me. She made me feel like I was going to be taken away from you if I didn't see my mum. Why would she do this dad. She really made me worried and scared.
In respect of the weight that I attach to X’s note, it is significant that his note references only the father “getting into trouble” but not X being “taken off you”.
The father also affirmed an affidavit on 11 July 2022 expressing his complaints about the meeting between the ICL and X. Given the asserted contemporaneity of X’s note, that affidavit, albeit two days after the event, does not mention X’s note.
The ICL, affirmed an affidavit on 17 November 2022. It is comprehensive and detailed in its content. She deposes inter alia:
14.On Saturday, 9 July 2022 I met with [X][10] at his home in [C Town], where he lives with his father. [C Town] is approximately 91 kilometres from my office.
15.…At no time did [X] ask to leave the room or go to his father. I formed the impression that initially [X] found the discussion difficult, but as he realised that he could asked me questions and I would respond to his queries/concerns, he settled and became interested and comfortable in our interaction. We parted on very good terms.
16.When [X] and I had finished talking, [X] went back outside to resume riding his bike. I then spoke briefly with the father, who walked me down the driveway to my car. I waved to [X] as I was walking down the driveway.
17.I explained to [X] who I was in my role… it was the judge who made orders, not me… including that I sat independently in the middle between his parents and I would always have as my primary focus his best interests. Also, that his views were important, but that there were a number of other things that the Judge would take into account … At various points asked [X] to tell me if he understood what I was saying to him and he appeared to understand.
18.I also explained to [X] that orders had been made on 12 April 2022 for him to spend time with his mother on a regular basis. [X] became very heightened and indicated that he did not want to spend time with his mother. He referenced his mother's infidelity, asking me if I knew about that and also his view that his mother should not be getting anything of the family property or assets. …
19.I explained to [X] that one of the matters that a Judge would consider was whether a parent could facilitate a relationship with the other parent if the court ordered that to happen as in the best interests of the child. Equally, if the Judge considered that a parent would not ensure a relationship by the child with the other parent, there could be a change of where a child lives, to ensure an ongoing relationship with a parent. These were comments that [the SJR] had made in court the previous day. At no time did I say to [X] that if he did not spend time with his mother in accordance with the orders he would be removed from the care of his father. At no time did I threaten or coerce [X] in any way. At no time did I say that it was [X] that had to obey orders. I made it clear that the orders imposed obligations on the parents. ...
21.Whilst there had been moments during our discussion when [X] became upset and displayed anger and frustration about his mother, he was respectful to me and at no time directed any inappropriate behaviour towards me. He listened to me when I responded to his questions and concerns and after considering what we talked about, he became calmer and reflected on matters we talked about. He conceded that he would prefer not to see his mother, but he understood that there were orders in place for there to be time between him and his mother and he said “yes. I can do the orders”. (Original emphasis).
[10] [Sic] and thereafter occurring in [15], [16], [17], [18], [19] and [21].
Counsel for the father alerts me to and criticises the ICL for not quoting the precise wording of her discussions with X. I disagree. In fact, in an affidavit of November 2022 discussing events of July 2022 I would be dubious if a person was able to relate with any accuracy the precise wording used in the discussions. I accept generally that the ICL's affidavit of 17 November 2022 is a reconstruction in adult language of her discussions with the then 11 year old X.
In his affidavit of 18 October 2022 at [8] the father complains that the ICL has formed an adverse view in relation to his application for parenting orders. Put simply, if this is indeed the case then the ICL is entitled to form a view at any time. Further, she is entitled to form views contrary to the expressed views and preferences of X.
The father further complains in respect of his assertion of bias/perceived bias/predetermination by the ICL that the ICL has not adduced, “collateral evidence”, from X’s school, his school counsellor or the changeover locations. Again, it is for the ICL to prepare her case at a time and in a fashion that she perceives appropriate. She is not the advocate for the father.
This matter is yet at the interim and interlocutory stage. There has been one substantive interim hearing conducted before the appointment of the ICL. I can see, therefore, no merit or substance to the father's complaints where I am unable to find any dilatory preparation, notification, or progress by the ICL in her role given again the chronology set out above.
The onus here sits with the father to prove on the balance of probabilities that the evidence is such that I should discharge the appointment of the ICL. The evidence, such as this is, has not been tested by cross-examination. The ICL herself gives a particularised history. The father on the other hand, presents his evidence with some inconsistencies and where the Court remains very cautious in respect of the initiative for and source of the “note” attributed to X and annexed to the father's affidavit of 18 October 2022 where such caution is based on the matters set out above in respect of that note.
Where the Court should for very good policy reasons be cautious in discharging the appointment of an ICL, the father has not given or adduced evidence of sufficient probity so as to discharge the onus that he carries.
Consequently the father’s application, in so far as it relates to the removal of the ICL, will be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 1 December 2022
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