Clayman & Berrera

[2021] FamCA 18

FAMILY COURT OF AUSTRALIA

Clayman & Berrera [2021] FamCA 18

File number(s):

BRC 10793 of 2015

Judgment of:

HOGAN J

Date of judgment:

28 January 2021

Catchwords:

FAMILY LAW – Application for discharge of Independent Children’s Lawyer – Application dismissed   

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

F and R (No. 2) (1992) FLC 92-314

In the Marriage of Bennett (1990) 14 Fam LR 397

Knibbs & Knibbs [2009] FamCA 840

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (intervener) (1995) FLC 92-615

Re R (1995) FLC 92-564

Separate Representative v JHE and GAW (1993) 16 Fam LR 485

T & L (2000) FLC 93-056

Number of paragraphs:

17

Date of hearing:

22 January 2021

Place:

Brisbane

Solicitor for the Applicant:

Self-Represented

Solicitor for the Respondent:

Self-Represented

Solicitor for the Independent Children's Lawyer:

Mr Ashcroft, Dooley Solicitors

ORDERS

BRC 10793 of 2015

BETWEEN:

MR CLAYMAN

Applicant

AND:

MS BERRERA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	28 JANUARY 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed at 9.43 am on 17 December 2020 and the Amended Application in a Case filed at 12.47 pm on 17 December 2020 are dismissed.

2.The Application in a Case filed 21 December 2020 is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clayman & Berrera has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Hogan J

1. The Application in a Case filed 17 December 2020[1] and the Application in a Case filed 21 December 2020 are considered in circumstances where this matter is listed for final hearing commencing 10 May 2021.

   [1]It was accepted by Mr Clayman at the hearing on 22 January 2021 that the Application in a Case filed at 9.43 am on 17 December 2020 and the Application in a Case filed at 12.47 pm on 17 December 2020 contain the same request for relief.

   The Application for discharge of the Independent Children’s Lawyer

2. Mr Clayman sought an order discharging the current Independent Children’s Lawyer (whose appointment commenced on about 4 March 2020) on the bases particularised in the Application in a Case filed 17 December 2020. He supported the application by affidavits filed 17 December 2020 and 21 January 2021[2] and also relied on written submissions filed on 18 January 2021 and 20 January 2021.

   [2]As well as referring, during the course of his submissions to various affidavits including that of the Independent Children’s Lawyer filed 22 June 2020 and those by the previous Independent Children’s Lawyer filed 19 February 2020 and 24 February 2020 respectively.

3. The Independent Children’s Lawyer opposed an order for his discharge. Whilst the Response filed on behalf of the Independent Children’s Lawyer[3] initially sought an order that Mr Clayman pay the costs of and incidental to the Application in a Case and that a vexatious proceedings order be made against Mr Clayman, this relief was not pressed by Counsel who appeared for the Independent Children’s Lawyer.

   [3]           Filed 19 January 2021.

4. Ms Berrera, who opposed the discharge of the Independent Children’s Lawyer, has not filed a Response to the Application in a Case. However, she relied on her affidavit[4], in which she expresses her opinion, in essence, that Mr Clayman’s various complaints about the Independent Children’s Lawyer is a manifestation of a pattern of behaviour by him when he feels that someone is doing something other than what he thinks should be done. Her position was that, if the Independent Children’s Lawyer thinks he can keep going, then he should do so irrespective of Mr Clayman’s complaints about him, otherwise there will be no Independent Children’s Lawyer for X in the proceedings.

   [4]           Filed 4 December 2020.

   Principles and their application

5. The Court has power to remove a person appointed to act as an Independent Children’s Lawyer in a particular matter.[5] A person appointed to act as an Independent Children’s Lawyer in a matter may be removed if there are proper reasons for doing so, such as a meritorious complaint about the conduct of the person in their role or where there is a reasonable apprehension that such person will not deal with the matter impartially.

   [5]See, for example: F and R (No. 2) (1992) FLC 92-314; Separate Representative v JHE and GAW (1993) 16 Fam LR 485; T v L (2000) FLC 93-056; Lloyd and Lloyd and Child Representative (2000) FLC 93-045.

6. Consideration of whether there are, in any particular case, reasonable grounds to make an order removing or discharging a person appointed to act as an Independent Children’s Lawyer  in that matter must take into account the role of the Independent Children’s Lawyer[6] and the obligations cast by s 68LA[7] of the Family Law Act 1975 (Cth) on any person appointed to undertake the role of an Independent Children’s Lawyer - namely:

   (a)to 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)to act in relation to the proceedings in what the Independent Children’s Lawyer  believes to be the best interests of the child; and

   (c)if satisfied that the adoption of a particular course of action is in a child’s best interests, to make a submission to the Court suggesting the adoption of that course of action; and

   (d)to act impartially in dealings with the parties to the proceedings; and

   (e)to ensure that any views expressed by the child in relation to the matters to which proceedings relate are fully put before the Court; and

   (f)to analyse any report or other document, which relates to the child and which is used in proceedings, so as to identify those matters considered to be the most significant ones for determining what is in the best interests of the child and ensure that those matters are properly drawn to the Court’s attention; and

   (g)to endeavour to minimise the trauma to the child associated with the proceedings; and

   (h)to facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in a child’s best interests.

   [6]As discussed in, for example: In the Marriage of Bennett (1990) 14 Fam LR 397; P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (intervener) (1995) FLC 92-615 at pp 82,156 and 82,157.

   [7]           In particular, subsections (2), (3) and (5).

7. Authority[8] establishes that the Court will consider the discharge of an Independent Children’s Lawyer if:

   (a)there is evidence that the Independent Children’s Lawyer has, in any way, acted contrary to the child’s interests; or

   (b)there is evidence before the Court that the Independent Children’s Lawyer had acted incompetently in a professional sense; or

   (c)it is apparent that the Independent Children’s Lawyer has demonstrated a lack of professional objectivity; or

   (d)to continue to act would involve the Independent Children’s Lawyer in a breach of a fiduciary duty or a conflict of interest.

   [8]Such as Lloyd and Lloyd and Child Representative (2000) FLC 93-045; T & L (2000) FLC 93-056; Re R (1995) FLC 92-564; Knibbs & Knibbs [2009] FamCA 840.

8. During the course of the hearing before me on 22 January 2021, I summarised the bases or grounds on which Mr Clayman relied in seeking to persuade that there are proper reasons for the Court to make an order discharging the Independent Children’s Lawyer. This summary was accepted by Mr Clayman as largely accurate, save that he also supplemented it during the course of our exchange. My consideration of Mr Clayman’s application has taken into account and considered both those grounds as summarised by me and as supplemented by Mr Clayman. Any failure to mention specifically any matter the subject of summary and discussion during the hearing on 22 January 2021 in these Reasons should not be seen as a failure to properly consider the same.

9. Whilst I did not understand Mr Clayman to advance it, I am not persuaded, on the evidence before me, that, if permitted to continue to act in these proceedings, the Independent Children’s Lawyer would be involved in a breach of a fiduciary duty or a conflict of interest.

10. On the evidence before me, I am not persuaded that Mr Clayman has established that the Independent Children’s Lawyer has: lied to him in an email sent on 10 June 2020 when he said that, at that time, he had not seen any email from Ms Berrera to the previous Independent Children’s Lawyer in which it was alleged that he (Mr Clayman) was a cocaine dealer [being an email, sent on 21 November 2019, into which Mr Clayman accepted he had been copied that day[9]]; conspired with the previously appointed Independent Children’s Lawyer; lied in a “sworn record”[10] or provided misleading information about emails passing between Ms Berrera and the previously appointed Independent Children’s Lawyer; failed to act as he is obliged to do by s 68LA of the Act; in effect “closed his eyes” to evidence adverse to Ms Berrera; acted unprofessionally in failing to speak with the previously appointed Independent Children’s Lawyer about emails passing between Ms Berrera and her prior to swearing his affidavit in June 2020 (noting that another of the allegations Mr Clayman relied on in support of his application was the assertion that the current Independent Children’s Lawyer has conspired with the previously appointed Independent Children’s Lawyer); lied to the Court (in a manner unparticularised other than in relation to the June 2020 affidavit); sought an order from Registrar Brooks on 31 March 2020 to enable him to provide specified affidavits by the previously appointed Independent Children’s Lawyer to Dr D for the purpose of protecting the previously appointed Independent Children’s Lawyer.

    [9]           See: Affidavit of Patrick Francis Dooley filed 19 January 2021 at Annexure “A”.

    [10]          To use Mr Clayman’s phraseology.

11. In so far as Mr Clayman is critical of the Independent Children’s Lawyer’s failure to provide to Dr D (the psychiatrist engaged to assess the parents and provide a report in the proceedings) with a copy of the email sent 21 November 2019, it is clear that Mr Clayman was, at all times from and including 21 November 2019 (well before the current Independent Children’s Lawyer’s appointment), aware of the contents of that email and in receipt of a copy of the same. It is also clear that, given this, Mr Clayman could have shown Dr D the 21 November 2019 email during his interview with him and will be able to raise the contents of the same with Dr D during any cross-examination he may have of him during the trial later this year.

12. I am not persuaded that, in arranging for X to be interviewed more recently by a Family Consultant, the Independent Children’s Lawyer acted contrary to her interests or incompetently in a professional sense, especially given that he is required, by s 68LA(5)(b) of the Act, to ensure that any views expressed by her in relation to the matters to which proceedings relate are fully put before the Court.

13. Given the obvious animosity between X’s parents[11], I am not persuaded that the Independent Children’s Lawyer acted contrary to her interests or incompetently in a professional sense in failing to try to mediate a solution to the issues in these proceedings with these parents.

    [11]See, for example, the contents of the emails sent on 21 November 2019: Annexure “A”, affidavit of Patrick Francis Dooley filed 19 January 2021.

14. On the evidence before me, I am not persuaded that Mr Clayman has established that the Independent Children’s Lawyer has acted contrary to X’s interests, incompetently in a professional sense or that he has demonstrated a lack of professional objectivity. Further, I am not persuaded that Mr Clayman has established a meritorious complaint about the conduct of the Independent Children’s Lawyer or that he has established that there is a reasonable apprehension that the Independent Children’s Lawyer will not deal with the matter impartially.

15. Consequently, I am not persuaded that there are proper reasons to make the orders sought by Mr Clayman and I decline to do so.

    The Application in a Case filed 21 December 2020

16. Mr Clayman also sought two other orders in another Application in a Case.  During the course of the hearing on 22 January 2021, Mr Clayman advised that he no longer sought an order in terms of that particularised at paragraph 1 of the Application in a Case filed 21 December 2020. Whilst he pressed the relief sought in paragraph 2 of that Application, the Order made by Registrar Brooks on 10 November 2020 contains no reference to the Notice of Child Abuse, Family Violence or Risk of Family Violence filed by Mr Clayman on 15 October 2020 and does not order the finalisation of the same.

17. Given this, I decline to make an order as sought by Mr Clayman in paragraph 2 of the Application in a Case filed 21 December 2020 and it will be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:

Dated:            28 January 2021