CHRANLEY & SMART

[2009] FamCA 1261

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART [2009] FamCA 1261

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Case filed by the father – where the father seeks an independent family assessment – where the father seeks that an investigation be conducted into the mother’s allegedly false affidavits and statements – where the father alleges the mother has been contemptuous in her behaviour by misleading a family assessment – where the father seeks that the mother be reported to the authorities for emotional and psychological abuse of the children – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – application by the father seeking the removal of the Independent Children’s Lawyer – where the father alleges the Independent Children’s Lawyer failed to disclose to the Court that the mother had filed false affidavits – where the father alleges the Independent Children’s Lawyer chose to disregard video and photographic evidence – where the father alleges the Independent Children’s Lawyer has perverted the course of justice, shown bias, failed in his duty of care to his client and failed to follow the guidelines for Independent Children’s Lawyers – no proper reason to discharge the Independent Children’s Lawyer established – application dismissed

Family Law Act 1975 (Cth)

Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Murray & Murray [2007] FamCA 9

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Graeme D Hemsley

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 23 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Graeme D Hemsley

Orders

1. The Application in a Case filed by the father on 21 September 2009 is dismissed.

2. The Application in a Case filed by the father on 1 October 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 207 of 2008

MR CHRANLEY

Applicant

And

MS SMART

Respondent

REASONS FOR JUDGMENT

Introduction

1. On the 3 November 2009 Registrar Paxton referred two applications to my duty list on the 20 November 2009 at 9.15 am.  Those applications were:

   (a)The Application in a Case filed by the father Mr Chranley on 21 September 2009 (document 26) which sought the following orders:

   “1.That an order be made that an independent family assessment be conducted with all relevant filed court documents.

   2.That an investigation be conducted into the mothers (sic) false affidavits and statements in regard to this case.

   3.That an investigation be conducted into the mothers (sic) contemptuous nature by her misleading a family assessment conducted by Dr [M].

   4.The mother be counselled as to her contemptuous manner in regard to the Family Court Orders made by consent on the 4/12/07.

   5.The mother be reported to the authorities for her continuing emotional and psychological abuse of my children.

   6.That this application be listed urgently.”

   (b)The Application in a Case filed by the father on 1 October 2009 (document 30) which sought:

   “1.Removal of Mr Graeme Hemsley as the Independent Children’s Lawyer.

   2.The appointment of an Independent Children’s Lawyer.”

Hearing

1. At the hearing both the mother and father were unrepresented.  The Independent Children’s Lawyer was represented by Mr Bowler of counsel.

2. At the commencement of the interim hearing I asked the father to identify the documents upon which he was relying in relation to his applications.  The father directed the Court to the affidavits.  Later during further submissions from the father other relevant affidavits were identified.

3. Apart from the two Applications in a Case referred to above, the father relied on the following affidavits filed in the Federal Magistrates Court of Australia proceedings commenced in January 2008, namely:

   (a)      His affidavit filed on 21 September 2009 (document 27);

   (b)Another affidavit (document 27A) of the father filed on 21 September 2009 in the Federal Magistrates Court of Australia;

   (c)Affidavit of the father filed in the Federal Magistrates Court of Australia on 1 October 2009 (document 31);

   (d)Affidavit of the father filed in the Federal Magistrates Court of Australia on 5 November 2009 (document 54).

   (e)Affidavit of the father filed on 30 April 2007 (document 228).

4. The father also drew the Court’s attention to the affidavit of the mother filed in the Family Court of Australia proceedings which had commenced in 2000, being the affidavit of the mother filed on 13 July 2004 (document 10) and the affidavit of the mother filed on 25 July 2007 in the Family Court of Australia (document 258).

5. The mother relied upon responses to the Applications in a Case being her documents filed on 11 November 2009 (documents 59 and 60) in which the mother sought the dismissal of the father’s application in relation to the Independent Children’s Lawyer and also sought an order:

   “That time spent/telephone and/or written communication be at the discretion and determination of the child, [S].”

6. This latter matter was referred to the Registrar to await the outcome of the Child Responsive Programme instigated by order of the Registrar on 3 November 2009.

7. The mother also filed two affidavits on 11 November 2009 which are before the Court (documents 61 and 62).

8. At the hearing before the Court on 20 November 2009 the Court received the oral submissions of the father, the mother and counsel for the Independent Children’s Lawyer.  Judgment was reserved.

Relevant Background

1. The current proceedings concern the child of the parties, S, who was born in March 1997.

2. The parties were previously married.  They are now divorced.  There is another child of the marriage, J.  J is now 18.

3. Proceedings first commenced in relation to the children of the marriage in 2000.

4. After a considerable amount of litigation the dispute between the mother and father concerning the orders to be made in relation to S was listed for trial before me in December 2007.  At that time both the mother and father were unrepresented.  Mr Hemsley had been appointed Independent Children’s Lawyer.  Mr Mellows appeared at the trial as counsel for the Independent Children’s Lawyer.

5. On 4 December 2007, at the request of the father, mother and counsel for the Independent Children’s Lawyer, a consent order was made which provided that all previous orders were discharged, that the mother and father have joint parental responsibility for S, that S live with the mother, that the father spend time with S at specified times from 10.00 am Saturday to 6.00 pm Sunday, such time to commence on Saturday 15 December 2007.  There were also extensive detailed consent orders in relation to mobile telephone contact, special occasion contact, handovers and injunctions.  There were specific other orders made in that consent order.  These included “that the appointment of the Independent Children’s Lawyer be discharged” and “That all applications be dismissed and removed from the pending cases list”.

6. Prior to those final orders being made the father had previously brought applications to the Court seeking the discharge of the Independent Children’s Lawyer.  These applications were unsuccessful.

7. There have also been previous applications by the father in relation to allegations that the mother has sworn a false affidavit (being the affidavit filed on 13 July 2004). 

8. The orders I made on 6 March 2006 were the subject of an appeal by the father to the Full Court.  That appeal was dismissed by the Full Court for reasons which were given on 26 September 2006.  The appeal, which included an appeal from the orders refusing to discharge the appointment of the Independent Children’s Lawyer, was dismissed and the father was ordered to pay the Independent Children’s Lawyer’s costs of the appeal. 

9. The judgment of His Honour Justice Strickland of 9 February 2007 which dealt with the applications for contempt filed by the father on 22 November 2006 also related to the affidavit filed by the mother on 13 July 2004.  This application was also dismissed.

10. The affidavit of the mother which was filed on 30 July 2004 was also the subject of consideration by the Court in interim proceedings which resulted in my judgment of 28 March 2007.  The father on that occasion sought that the mother be cross-examined in relation to her affidavit in the interim proceedings asserting that the mother’s affidavit filed on 30 July 2004 was “false and was designed to pervert the course of justice and to malign him” (paragraph 3 of my reasons of that date).

11. Paragraphs 15 and 16 of my judgment on that date said:

    “15.  I, therefore, refuse the father's application for the mother to be cross‑examined, highlighting of course that it is not necessarily the case that the mother's allegations are deemed to be correct and the father's allegations deemed to be false.

    16.    On the contrary, the references in the various cases emphasise the fact that the Court must bear in mind when making an interim decision that there is a difficulty in relying upon the allegations of one party or the other where there are matters which are significantly in dispute, as in the present case.”

12. Justice Strickland’s judgment dated 4 April 2007 also dealt, in part, with the father’s allegation that the mother committed a contempt of Court by filing the affidavit filed on 13 July 2004.  The application was dismissed.

13. My judgment of 27 April 2007 dismissed the father’s application of the 30 March 2007 which related to other claims by the father about Mr Hemsley’s behaviour.

14. In particular the proceedings previously brought by the father included an application that was dealt with by Justice Strickland on 28 June 2007 in which the father alleged that the mother was in contempt because she filed the affidavit on 13 July 2004 “which was a false affidavit.”  This application was dismissed.

15. By application filed on 13 July 2007 the father sought leave to file an application, including seeking orders for the removal of Mr Hemsley as the Independent Children’s Lawyer.

16. On 15 August 2007 His Honour Justice Strickland gave ex-tempore reasons and said in paragraph 14:

    “14   I turn now to the other foreshadowed application which is the application, effectively, for the removal of Mr Hemsley.  Again, this is a matter which is not new.  There are a number of applications that the father has made during the course of these proceedings seeking the removal of Mr Hemsley.  Each and every one of those applications has been dismissed.  There is no new information put before the court in any affidavit or by way of any evidence which would indicate that that issue should now be re‑litigated.”

17. The father strongly asserts the application in relation to the discharge of the Independent Children’s Lawyer is based upon material which did not form the basis of his previous applications for the discharge of the Independent Children’s Lawyer on other occasions and should therefore be considered afresh.  The material to which he refers in this regard is the affidavit which he filed in the Court on 30 April 2007 which refers in great detail to the availability of video-tapes concerning his interaction with the children, J and S, and photographs concerning his interaction with the children, J and S.

18. The father commenced fresh proceedings in the Federal Magistrates Court in January 2008.  Thereafter he has brought several applications in relation to alleged contempt and alleged contravention by the mother of the orders of the Court.

19. On 5 March 2008 the father commenced the further proceedings in the Federal Magistrates Court of Australia by way of Initiating Application (document 7) in which he sought the following final orders:

    “1.     To have time spent with my daughter [S] from 5pm Friday until 9am Monday with her return to school, every second weekend.

    2.     To have time spent with my daughter [S] every second week of her school holidays.”

20. In that application he also sought interim orders in the same terms.

21. On 30 April 2008, Federal Magistrate Brown made an order which dismissed the father’s application filed on 5 March 2008.

22. On 26 June 2009 the father filed an Initiating Application in the Federal Magistrates Court (document 16) in which the final and interim orders sought by the father were “[S] to spend alternate weeks of school holidays with her father.”.

23. On 21 September 2009 the father filed an Application in a Case (document 26) seeking the orders which are the subject of the application before the Court on 20 November 2009.

24. On 25 September 2009, Federal Magistrate Lindsay made the following orders:

    “UPON APPLICATION MADE TO THE COURT, the applicant father appearing in person and the respondent mother appearing in person

    UPON NOTING THAT Mr Bowler of Counsel appeared as a courtesy to the Court as has acted on behalf of the Independent Children’s Lawyer in previous proceedings involving these parties,
    
    

    THE COURT ORDERS THAT:

    1. Pursuant to Section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be re-appointed to represent the interests of the child [S] born on […] March 1997 NOTING Mr Graeme Hemsley was previously appointed as the Independent Children’s Lawyer in this matter and to facilitate such appointment the parties each forward all relevant recently filed documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

    2.      The Application filed on 26 June 2009 and the Application in a Case filed on 21 September 2009 be transferred to the Family Court of Australia and the parties be advised in writing of a directions hearing date and time forthwith by the Registry.”

25. Mr Graeme Hemsley was appointed the Independent Children’s Lawyer again.

26. Numerous contravention and contempt applications remain in the Federal Magistrates Court.  They were listed for hearing before Federal Magistrate Lindsay in early December 2009.

27. On 22 October 2009 the mother filed a response to the Initiating Application (document 42) in which she sought the following orders:

    Final:

    “1.     This matter return to Family Law Court for determination.

    2.     A Family Assessment Report be prepared by an independent Court-appointed reporter.

    3.     An Independent Children’s Lawyer be appointed.

    4.     That time spent between the Applicant and the child, [S], be at the desire and determination of the said child.”

    Interim:

    “1.     That no further applications be filed by the Applicant in regards to variations in time spent until the determination of this matter is finalised.”

28. Registrar Paxton dealt with the matter on 3 November 2009 when orders were made pursuant to the Child Responsive Programme.  Other directions were made including the listing of the Initiating Application and Response for further directions before the Docket Registrar after the conclusion of the Child Responsive Programme at a date to be advised.

Application in a Case filed on 21 September 2009

1. Independent Family Assessment

2. The father first sought that an order be made that an independent Family Assessment be conducted with “all relevant filed Court documents”.  His submissions in this regard were not detailed.  He referred to the fact that Dr M should not be asked to complete any further assessment because he was involved in other Court proceedings with Dr M and he would therefore be unsuitable to perform any other assessments. 

3. Counsel for the Independent Children’s Lawyer submitted that any further request for a family assessment should wait the outcome of the Child Responsive Programme.

4. The orders made by Registrar Paxton on 3 November 2009 included a direction that a Family Consultant provide a Children and Parents’ Issues Assessment to the parties and the Independent Children’s Lawyer and for the purposes of preparing the Issues Assessment the Family Consultant had permission to inspect the Court file.

5. It is appropriate therefore to adjourn further consideration of any request for an independent family assessment until after the Court has been able to consider the outcome of the Child Responsive Programme orders made by the Registrar on 3 November 2009.

6. Investigation be conducted into the mother’s false affidavits and statements in regard to this case, and

7. Investigation be conducted into the mother’s contemptuous nature by her misleading a family assessment conducted by Dr M.

8. The father filed the affidavit on 21 September 2009 (document 27A) which refers to affidavits filed in the previous proceedings before the Family Court of Australia by both himself and the mother.  This affidavit is as follows:

   “1.     I refer to my affidavit file on the 27^th July 2007.

   2.     I refer to my affidavit filed on the 21^st November 2005.

   3.     I refer to the affidavit filed on the 25^th July 2007 by the respondent mother.

   4.     I state that the respondent mother has misled this Court since the filing of her first affidavit on the 13^th July 2004 and has always relied on this affidavit.

   5.     The respondent mothers (sic) affidavit filed on the 25^th July 2007 is the first time in this Court she has stated that I did have the children at my home and in  my care since 2002 until March 2004 with overnight stays.

   6.      The respondent mother has misled the child representatives and the family assessment by knowingly withholding these facts and has influenced the children into not revealing these facts.

   7.      The respondent mother did stop the interaction between the children and myself in March 2004.

   8.      The respondent mother has knowingly perverted the course of justice for her own gain.

   9.      The respondent mother has misled Dr [M] in the family assessment by stating to him that she is so scared of me that she had to have a monitored alarm fitted to the family home.

   10.    I supply the subpoenaed notes from Dr [M] and the account in my name from James Hardie for the monitored alarm at the family home dated 1995.

   11.    The respondent mother states in her affidavit filed on the 27^th July 2007 at page 9 the child [S] has expressed a desire to expand the time spent with the applicant but appears to want to proceed under condition, 2 years ago.

   12.    Court orders have never been made with the knowledge of the above facts in the respondent mothers (sic) affidavits.”

9. Some of the matters referred to by the father in his other affidavit filed on 21 September 2009 (document 27) were also considered relevant by the father to this application.  This affidavit is as follows:

   “1.     I refer to the affidavit filed on 3/8/2004 by the applicant in relation to the emotional and psychological abuse of [J].

   2.     [S] is at present the same age as [J] was when the mother had intimidated her as to not attending with the Court order time(sic) her father.

   3.     [J] has withdrawn from all contact with me since that date.

   4.     The respondent mother was convicted of a contravention of the orders by Judicial Registrar Forbes and was given a $500, 6 month good behaviour bond.

   5.     I refer to the affidavit filed on the 25/7/2007 filed by the respondent where for the first time in this case she states that I did have the children in my care from 2002 up to 2004 when she had ceased my contact.

   6.     The respondent mother has perverted the natural course of justice and denied my father daughter relationship for her own satisfaction.

   7.      I refer to the affidavit filed on the 4/06/2007 the report or (sic) Dr [M] where [S] states to Dr [M] she would sleep over Dads (sic) home if the mother said it was alright.

   8.      I refer to Dr [M] (sic) report 9/5/2007 where he for the first time he acknowledge (sic) my involvement with my children for many years.”

1. The father specifically refers the Court to the affidavit of the mother filed on 13 July 2004 and the assertion that this was false and misleading by the mother as indicated by her affidavit which was filed on 25 July 2007 (document 258).

2. An affidavit of the mother sworn on 7 July 2004 (document 10) was filed at the early stages of the litigation between the parties.  It raises issues concerning the application of the father filed on 21 June 2004.  Paragraphs 6, 7 and 8 of the affidavit states as follows:

   “6.     I say that following separation I was solely responsible for the day to day care of both children.  The husband and I did not enter into any formal arrangements with respect to his contact with the children.  I advised the husband that he was at liberty to see the children at any time that he wished.  He tended to visit at my home on average three or four times a week.  He would remain at the home for varying periods of time.  The contact tended to take place at my home as the father did not have appropriate accommodation.

   7.     In or about 1999/2000 the father moved into his mother’s home.  Once the father moved into his mother’s home, I agreed to the father having contact away from my home.  The children did not stay overnight at their grandmother’s home.  The father was having contact with the children at weekends, although not every weekend.  The contact would occur on either the Saturday or Sunday, or on both days, for varying times.  In addition the father was having periodic contact during the week and would remain at my home on those evenings when [J] was engaged in karate activities.  At these times he would look after [S] whilst I would supervise [J].

   8.     In or about the year 2000 the father would at times care for the children whilst I was at work.  On occasions he remained overnight at my home whilst I was working night sift.  I returned to work as a nurse in a casual capacity when [S] was about four years of age.  I say that the father and I were at this time having a better relationship with one another than had existed during the course of our marriage.”

3. The affidavit refers to the other concerns alleged by the mother to relate to the welfare of the children such as the father’s behaviour and mental health.

4. In the affidavit filed by the mother on 25 July 2007 page 7 of that affidavit states:

   “VISITS/STAYS/TIME SPENT AT THE HOUSE OF THE FATHER

   PERIOD OF MID 2002 – MID 2004

   1.     Visits involved week-end visits with some overnight stays of a one night duration, primarily whilst I was at work.

   2.     A breakdown in this regime occurred in January, 2004.

   3.     Visits by the children recommenced in or around March 2004 after the applicant’s discharge from the […] Health Service in late February, 2004.

   4.     These visits continued until around mid 2004.

   5.     The frequency and duration of visits by the children started to decline after late March,2004.”

5. The father submits that reading the two affidavits supports his assertion that the mother has provided false affidavits and the mother has been contemptuous in her behaviour by misleading the Court and the expert Dr M who conducted the family assessment.

6. The father maintained that if the information in page 7 of the mother’s affidavit filed on 25 July 2007 had been before the Court at an earlier time orders would have been made in his favour.

7. In the hearing before the Court on 20 November 2009 the father specifically relied upon his affidavit filed on 30 April 2007 (document 228) in which the father refers to numerous “video footage”.  It is clear that the mother’s affidavit acknowledging the father’s specific involvement in the period mid 2002 to mid 2004 was filed after the father had filed his affidavit providing the Court with the reference to the video footage and photographs.

8. The mother submitted that “the assertions of the applicant are unfounded”.  She also stated:  “the claim that I have filed false affidavits is unfounded”.  (See the affidavit of the mother filed on 11 November 2009 (document 62) at paragraphs 1 and 4).

9. The Independent Children’s Lawyer’s submissions are that the applications filed by the father in paragraphs 2 and 3 should be dismissed.

10. Careful consideration of the affidavit filed by the mother on 13 July 2004 and the affidavit of the mother filed on 25 July 2007 does not establish (as asserted by the father) that the mother has misled the Court, the Independent Children’s Lawyer or the Consultant preparing the Family Assessment, Dr M.

11. The Court has received the affidavits filed by the mother.  The Court has also taken into account the affidavits filed by the father and the information available to it as a result of material provided by the Independent Children’s Lawyer and the Family Assessments.

12. The trial which was set for December 2007 did not proceed to a conclusion and final orders were made by consent.  Thus, the testing of the evidence which had been filed by both parties did not take place.

13. Carefully considering all of the material provided by the father and referred to by the father, the father has not established (even on the balance of probabilities if that is the standard of proof to apply in this matter) that the mother has filed false affidavits or made false statements, nor has he established that the mother has behaved in a manner which could be described as “contemptuous nature by her misleading a family assessment” (paragraph 3 of the father’s Application in a Case (document 26)).

14. The father was unable to explain how he wished the Court to conduct the investigations he sought in paragraphs 2 and 3 of this application.  The Family Court of Australia is a Superior Court of Record of the Commonwealth of Australia.  It is a Court.  The Court does not have access to investigators, police officers or other workers who could carry out any independent investigation.  Where there is sufficient satisfactory evidence in relation to criminal activity including perjury, the Court may refer the matter to the Attorney-General.

15. This is not such a case.  The evidence does not establish a basis for such a referral.

16. The evidence does not establish that it would be appropriate for the Court to embark upon a separate trial or hearing in relation to allegations concerning material which was before the Court and considered in various interim applications which have been concluded and being material which was before the Court before the final consent orders were made in December 2007.

17. Paragraphs 4 and 5 of the Application in a Case filed by the father on 21 September 2009 seek orders:

    “(4)   The mother be counselled as to her contemptuous manner in regard to the Family Court orders made by consent on the 4/12/07.

    (5)    The mother be reported to the authorities for her continuing emotional and psychological abuse of my children.”

18. The affidavit filed in support refers to the facts alleged by the father in the history of the matter and previous documents filed prior to the consent orders of December 2007.  It does not provide any specific factual basis upon which the conclusions in some of the paragraphs are based.

19. The other affidavit (document 27A) filed on 21 September 2009 again refers to matters prior to the consent orders of 4 December 2007.

20. The Court is aware that since 18 January 2008 the father has filed seven applications in the Federal Magistrates Court of Australia alleging the mother is in contempt of the Court orders and 11 applications alleging contraventions.  Some of those matters have been dealt with in the Federal Magistrates Court of Australia;  others remain to be heard.

21. It is not therefore appropriate for the Family Court of Australia when dealing with an Application in a Case to consider making orders which relate to allegations of contempt which remain to be dealt with in the Federal Magistrates Court of Australia.

22. Paragraph 5 of the father’s Application in a Case seeks that “the mother be reported to the authorities for her continuing emotional and psychological abuse of my children” and relates to allegations that the father maintains that the mother, by her actions, has interfered with his relationship with J and S.  The evidence before the Court is that the older daughter J has not had regular contact with her father since 2004.  S has not attended time spent with the father since early September 2009.  There is a dispute as to the basis upon which their decisions have been made.  The orders sought by the father does not specify who should report the mother nor to which authorities.  The father and other persons associated with the family who might have knowledge of any abuse of any of the children are not prevented in any way from making any report to any authority.

23. The order that the father seeks in paragraph 5 is not an order which is appropriate for the Family Court of Australia to make particularly when there has been no finding by the Court that there has been emotional or psychological abuse. 

24. Therefore the father’s application of 21 September 2009 should be dismissed.

Application to remove Mr Hemsley as the Independent Children’s Lawyer

1. In support of the Application in a Case filed on 1 October 2009 the father filed an affidavit on the same day in which he alleged that Mr Hemsley had been aware that the mother had provided “false and contemptuous affidavits” and had not disclosed the correct information to the Court.  He referred to the mother’s affidavit filed on 25 July 2007 which referred to his involvement with the children “regarding contact and overnight stays”.

2. Paragraph 4 of the affidavit of the father filed on 1 October 2009 says:

   “4.     I agreed to the final Court orders to facilitate the dismissal of Mr Graeme Hemsley as the Independent Children’s Lawyer.”

3. This is a reference to the final consent orders made in relation to children’s issues on 4 December 2007.

4. The affidavit of the father also refers to attachments which are allegations concerning Mr Hemsley.  The first is a reference again to allegations relating to Mr Hemsley disregarding affidavits which had been filed and his choice not to view video evidence referred to in the father’s affidavit and allegations that Mr Hemsley had chosen to disregard photographic evidence.  This page has a date “17/7/7”.  The other documents which are annexures to this affidavit referred to matters which have been dealt with or relate to events prior to the consent order of 4 December 2007 and in particular the family assessments conducted by Dr M.

5. A two-page document which appears to be dated 23 October 2006 is headed “To the Attorney Generals Department”.  This appears to be a request to an Attorney-General asking for an investigation into the conduct of Mr Hemsley.

6. The father also relied upon his affidavit filed on 5 November 2009 (document 54).  He draws attention to his affidavit filed on 30 April 2007 which was an affidavit “filed in relation to a hearing for extended time with [S]” (paragraph 2).

7. The affidavit refers to many photographs and videos relied upon by the father which he is asserting relate to his interaction with S and J.

8. The father then asserts that at a hearing in relation to interim issues concerning the children the Independent Children’s Lawyer “… did not present any statement or any support of my affidavits …”.  The father complains that the Independent Children’s Lawyer supported the mother’s case and “… never requested to view the video or to view the original photos …” (paragraph 23 of document 54).

9. The father in his oral submissions also relied primarily upon the failure of the Independent Children’s Lawyer to view the videos and see the original photos as the significant argument in relation to his application for the dismissal of the Independent Children’s Lawyer.  The father says this represents a new matter which had not previously been argued before the Court in relation to applications for the discharge of Mr Hemsley as the Independent Children’s Lawyer.

10. The Court has considered all of the affidavit material filed by the father in support of the applications.  Particular paragraphs referred to are referred to as examples of the basis of the father’s claim but the Court has given consideration to all of the material relied upon by the father.

11. The mother opposes the application by the father for the discharge of Mr Hemsley and says in her affidavit filed on 11 November 2009 (document 61):

    “1.     No findings have been made to support the Applicants assertions made in his supporting Affidavit, filed 1/10/09.

    2.     The Applicant has not been successful in previous attempts to have Mr Hemsley removed from his position as the Independent Children’s Lawyer.

    3.     Mr Hemsley has acted in the best interest of this children in his position as the Independent Children’s Lawyer.”

12. Counsel for the Independent Children’s Lawyer also opposed the orders sought by the father for Mr Hemsley’s discharge.

The Law

1. In the matter of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 the Full Court considered an application by the husband to have the Independent Children’s Lawyer discharged on the ground that she was exhibiting bias towards the husband. The appeal was dismissed. The headnote of the case concludes:

   “1.     There is no doubt that the Court has the power to discharge an order for separate representation.

   2.     The order sought by the husband was not a parenting order within sec 64B and therefore did not directly invoke the application of the paramountcy principle in sec 65E.  However, the ultimate issue was whether certain parenting orders ought to be made.  It was also a matter relating to the proper representation of the children.  In these circumstances, the paramountcy principle was relevant.

   3.     Some of the circumstances which would lead the Court to consider discharging a separate representative are:

   (i)   if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;

   (ii)  if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;

   (iii)  if it is apparent that the separate representative has demonstrated a lack of professional objectivity;  or

   (iv) if to continue to act would involve a breach of fiduciary duty or a conflict of interest.

   4.     There was nothing raised by the husband that established that C had taken any step on behalf of the children that was not in their best interests.  The Court was not satisfied that the husband had demonstrated that C had lost her impartiality.  The husband’s allegations were supported only by the husband’s evidence.

   5.     There are a number of reasons why the Court should be slow to discharge a child representative on the basis of the largely unsubstantiated complaints of one of the parties.  These include:

   (i)   the best interest of the children have to be borne in mind;

   (ii)  the Court should treat allegations of lack of impartiality with caution;

   (iii)  the public policy consideration of costs and any new separate representative having to spend a lot of time acquiring the necessary knowledge of the long proceedings.”

2. This authority was referred to by the Full Court in the matter of Murray & Murray [2007] FamCA 9. At paragraphs 33, 34 and 35 it was stated:

   “33.  Although not referred to by the trial Judge, it may be of some assistance to refer to some general principles in relation to the refusal to discharge a Independent Children’s Lawyer.

   34. In Lloyd and Child Representative (2000) FLC 93-045 Holden CJ said at 87-689-690:

   30.“There are a number of very good reasons why, in my opinion, the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. Those reasons include:

   (i)The best interests of the children to have to be borne in mind…

   (ii)The 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 that 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 cases where actual or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.

   (iii)There is also a public policy consideration…”

   35.    In this case there was no clear evidence that the independent child’s lawyer had in any way acted contrary to the child’s interests rather it was merely the appellant’s opinion that he had lost impartiality.”

Discussion

1. The father filed two affidavits recently concerning his allegations about the Independent Children’s Lawyer, Mr Hemsley; one on the 1 October 2009 and one on 5 November 2009.  Both affidavits assert that the Independent Children’s Lawyer disregarded affidavits filed by the mother which he knew to be false.  The affidavits refer again to the Independent Children’s Lawyer not viewing the video or original photographic evidence which the father referred to in documents provided to the Family Court of Australia.  There are allegations in a general sense that Mr Hemsley has perverted the course of justice, shown bias, has failed in his duty of care to his clients and has not followed the guidelines of an Independent Children’s Lawyer.

2. The allegations of any improper behaviour are strenuously denied on behalf of the Independent Children’s Lawyer.

3. The Independent Children’s Lawyer is a lawyer representing the child in these proceedings.  The Independent Children’s Lawyer does not determine the outcome.  The views of the Independent Children’s Lawyer are taken into account in the proceedings but the Court determines the outcome following the legislation provided in the Family Law Act 1975 (Cth).

4. An Independent Children’s Lawyer is obliged to present the case that they consider to be relevant to the decision which is a determination of what is in the best interests of the child.  In some cases this may well result in the Independent Children’s Lawyer taking an attitude or presenting a case which is contrary to the case presented by one of the parents or other parties to the proceedings.  Of its very nature the role of the Independent Children’s Lawyer may require the representative and their counsel to present views which are not likely to agree with the position of one of the parents.

5. It is clear from the guidelines and the general nature of the role of the Independent Children’s Lawyer that in some cases the Independent Children’s Lawyer may not agree with one party’s interpretation of the evidence presented and may not accept that it is significant and or persuasive as to the best interests of the child.

6. Actions taken and representations made by the Independent Children’s Lawyer will not necessarily meet with the approval of the parties.  However, this does not indicate a lack of attention to the proper role of an Independent Children’s Lawyer.

7. The Independent Children’s Lawyer is required to act in an independent and unfettered way in the best interests of the child.

Conclusion

1. Having considered all of the affidavits of the father, his oral submissions and the affidavits of the mother to which the father referred, it is concluded that the father has not established that the Independent Children’s Lawyer has failed in his duties as the Independent Children’s Lawyer or in his other professional responsibilities.

1. Taking into consideration the history of this matter and the submissions of all parties I am satisfied that it has not been established there is proper reason for discharging the appointment of the Independent Children’s Lawyer nor that there is any reasonable apprehension that he would not deal with the matter properly and impartially.

2. I therefore dismiss the application filed by the father.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 December 2009