COBB & COBB (No.2)

[2015] FCCA 2766

FEDERAL CIRCUIT COURT OF AUSTRALIA

COBB & COBB (No.2) [2015] FCCA 2766

Catchwords:
FAMILY LAW – Application to discharge the Independent Children’s Lawyer – confidential information received during mediation – nature of the role of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.12A, 68LA

McMillan and McMillan (2000) FLC 93 – 048
Bennett and Bennett (1991) FLC 92-191
Lloyd v Lloyd and Child Representative (2000) FLC 93-045
T and L (2000) FLC 93-056
Re R (1995) FLC 92-564

Applicant: MR COBB

Respondent: MS COBB

File Number: MLC 3140 of 2014

Judgment of: Judge Harland

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Melbourne

Order (1) Delivered on: 6 May 2015

Orders (2) & (3) & Reasons Delivered on: 12 October 2015

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: Berger Kordos Lawyers

Counsel for the Respondent: Ms Dellidis

Solicitors for the Respondent: Mitchell Family Law

Counsel for the Independent Children's Lawyer: Mr Lethlean

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS DELIVERED 6 May 2015

1. The Application in a Case filed by the Applicant on 14 April 2015 be dismissed.

ORDERS DELIVERED 12 October 2015

1. That within 60 days of the date of these orders the father pay the mother’s costs in the sum of $2,744.

2. That within 60 days of the date of these orders the father pay the Independent Children’s Lawyer’s costs in the sum of $1,900.

IT IS NOTED that publication of this judgment under the pseudonym Cobb & Cobb (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3140 of 2014

MR COBB

Applicant

And

MS COBB

Respondent

REASONS FOR JUDGMENT

1. This is an interlocutory application for the discharge of the Independent Children’s Lawyer (“ICL”) and the appointment of a new ICL. I heard the application and made orders on 6 May 2015.  As the matter was listed for final hearing before Judge Bender and given the nature of the issues raised before me, at the request of counsel, I agreed not to deliver reasons until after Judge Bender had heard and delivered reasons in the substantive decision. This has now occurred.

2. The application arises in unusual circumstances. Mr Puckey was at pains to point out that there is no suggestion of criticism of Ms Sinclair’s conduct in carrying out her duties as ICL. The issue arises as a result of a mediation which was conducted, deliberately in the absence of the ICL.

3. The mother and father organised a private mediation for the purpose of trying to resolve parenting and property issues. The father seeks to have the ICL discharged on the basis of confidential information discussed at the mediation being revealed to the ICL. The father complains that this is in breach of the mediation agreement. The mother says it was not in breach of the mediation agreement. It is not necessary to determine that issue for reasons which will become apparent.

4. The parents agreed on interim arrangements at the mediation and the father’s lawyer forwarded proposed consent minutes to the ICL. The ICL signed the minutes and returned them. The mother changed lawyers around this time. Her current lawyers sent a letter to the ICL dated 5 February 2015. The letter is marked ‘without prejudice’. The purpose of the letter was to seek the ICL’s views in the hopes that it might assist the matter to resolve. Paragraph two reads as follows:

   “We confirm that it is our understanding that at the mediation of this matter, the principal dispute appeared to revolve around whether or not the father had the children for four or six nights a fortnight.”

5. The father’s lawyers then wrote to the ICL on 31 March 2015. The letter opens with the following sentence “we bring to your attention a serious issue which has irretrievably tainted your role as Independent Children’s Lawyer.” The letter goes on to complain about the reference to the disclosure of the father’s position at mediation. It states that the father believes that his case has been prejudiced by this being revealed to the ICL and requests that Legal Aid appoint a fresh ICL from outside of Victoria Legal Aid.

6. The ICL wrote a response to that letter on 10 April 2015. The father quotes from that letter but does not annex a copy of it to his affidavit. The ICL indicated that she would not withdraw from the proceedings and would not be calling evidence of any proposals and will be limited by any proposals for negotiations held between the parties. The father says that he now has no confidence that the ICL can carry out her role in a neutral, unbiased and independent fashion. He says he cannot see how the ICL could not take it into account in reviewing her position. He makes it clear that he is not criticising the ICL but rather saying that “the disclosure to have irretrievably damaged the integrity of the process.”

7. The father’s counsel submitted that the position of the ICL is analogous to a legal practitioner with a conflict of interest due to having confidential information that could be used against a former client. In furtherance of that submission counsel relies on a decision of the Full Court of the Family Court in McMillan and McMillan (2000) FLC 93– 048. He made particular reference to paragraph 38 which is set out below:

   “It has been accepted in this Court, at least since the decision in June 1986 of Frederico J. in Thevenaz (1986) FLC 91-748, that the Court “has power to make orders restraining a firm of solicitors from continuing to act for one of the parties to proceedings in this Court, if it is of the view that it would be likely that those solicitors may have confidential information relating to the other party to the proceedings arising out of a former relationship of solicitor and client with that party which may be used to the advantage of the present client or to the disadvantage of the former client in the current proceedings” (per Lindenmayer J. in the unreported decision of Stewart (17 April 1997)”.

8. There is no dispute amongst the parties the information that the father complains about is confidential, having arisen during the course of the mediation.  The father argues that the ICL’s response that she would not call evidence about the negotiation does not address the concern because of the duty of the practitioner to use his or her relevant knowledge for the disposal of his or her client. Frederico J made that comment in his reasons decision in the case of Thevenaz. The Full Court in McMillan set this out at paragraph 41 of the decision. The father’s counsel emphasised the passage set out in the following paragraph and in particular to the fact that once in possession of confidential information, a legal practitioner may unwittingly breach his or her duty to her client and that the Court must control all its officers by restraining practitioners from breaching their duty to their clients. Frederio J discussed the particularly sensitive nature of family law litigation and the personal information it involves.

9. Counsel for the father submitted that once even a theoretical risk of misuse of confidential information is established then the practitioner should be restrained from acting. He also submitted that a reasonable bystander could not imagine a litigant seeking residence of the children being taken seriously by the ICL when she is aware that he has abandoned that position. That is an exaggeration of the father’s position. The fact that the father made a proposal at mediation that is different to his application before the court is hardly an unusual circumstance and could not reasonably be interpreted as having abandoned his position but this is a minor point.

10. The father’s counsel submitted that in the case of a practitioner in the position of an ICL, their duty is legislated for by s.68LA of the Family Law Act 1975 (Cth).

11. The difficulty with the application as I see it and I raised this at the time, is that the ICL is a party to the proceedings.  ICL’s regularly convene mediations as part of their honest broker role. Given that the ICL is a party to the proceedings should the two other parties to the proceedings be able to exclude the ICL from a mediation about parenting issues? If the mediation was only with respect to property, the issue would not arise because the ICL is not involved and has no interest in that part of the proceedings.

12. The mother’s counsel submits that the father’s application is misconceived because it does not recognise the special position and special duty that the ICL has. An ICL is not a practitioner in an adversarial proceedings acting on instructions. The ICL is not in the position of acting for opposing parties and does not have the same constraints that an advocate acting for a party does. The duties of the ICL are quite distinct and are set out in s.68LA of the Family Law Act which is set out in full below:

    (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.

13. It is well established that the ICL has a broad discretion in carrying out his or her role. See for example Re R (1995) FLC 92-564. It is important to emphasise the ICL is not merely a practitioner appearing on instructions in the matter but is a party to the proceedings. ICL’s regularly conduct mediation conferences for themselves in matters. As a party, the ICL was entitled to be involved in mediation involving children’s issues. The other parties are not entitled to simply exclude the ICL from that process. There is no evidence to suggest in this case that the ICL was invited to participate in mediation. It may well be a matter of practicality that the ICL did not have funding to attend at mediation but as a party should have been invited. The ICL is entitled to know about the negotiation and be involved in it. One of the roles of the ICL is to act as an honest broker and to assist the other parties reach resolution. On this basis alone, the father’s argument must fail because the situation in McMillan has no application to the circumstances of this case.

14. ICL’s are not discharged from their role lightly. There is sound reasoning for this. It is not in the children’s best interests for there to be a change in their legal representatives if it can be avoided. Often a party is not happy with the ICL because he or she perceives that the ICL is not supportive of their case. If this were the reason for discharging the ICL then the role would become so diminished as to no longer perform its proper function.

15. It is hardly an unusual situation for parties in parenting matters to put a position at a mediation that they never put before the court. It is also not uncommon for parties to change their positions during the course of the proceedings. It is more unusual for parties not true to change their position in a somewhat during the course of the because the information that the parties have available to them by the time of final hearing which will usually include family report and may also have involved trialling different time arrangements during course of the proceedings.

16. If the father’s argument was to succeed, then that parties could arrange the mediation at the exclusion of the ICL, tell the ICL about their positions at mediation and then seek to have the ICL discharged on the basis of the ICL possessing confidential information.

17. Proceedings are well advanced. The parties have received a family report and a report by a psychiatrist. The matter is listed for final hearing in nine days’ time. The legal aid organisations around the country have limited resources and it would be a significant imposition on those resources to ask legal aid to fund a private practitioner to take over the ICL position so close to a final hearing. In reality, it would be very unlikely that a new ICL would be able to bring the same knowledge of the matter to the final hearing. Potentially, the children would be interviewed by a new ICL. The other potential is for there to be no ICL at that hearing in circumstances where the court has clearly thought that it was a matter that would benefit from the ICL and there is no criticism whatsoever of the ICL’s conduct. The father’s counsel submitted that I could not take this into account as no enquiries had been made of Victoria Legal Aid. However, that submission ignores the authorities addressing applications to discharge the issue as will be seen in the discussion below.

18. Holden CJ considered the principles applicable to applications to discharge an ICL in Lloyd v Lloyd and Child Representative (2000) FLC 93-045. Circumstances where an ICL may be discharged include:

    a)If there is evidence that the ICL has acted contrary to the children’s interests;

    b)If there is evidence that the ICL has acted incompetently in a professional sense:

    c)If the ICL has shown a lack of professional objectivity;

    d)If to continue to act would involve a breach of fiduciary duty or a conflict of interest.

19. Holden CJ said the ICL’s duty “is not to neither of the parties but, rather, is to the children and to the Court.” That is plainly correct. He also commented on the reasons why the court is reluctant to discharge an ICL on the basis of “largely unsubstantiated complaints of one of the parties” including:

    a)The best interests of children. In that case the ICL had been representing the children for a long period of time and developed a good rapport with them.

    b)The court should treat cautiously any allegation of lack of impartiality otherwise every ICL would be in a vulnerable position facing an application to be discharged based on unfounded allegations or perceptions of one of the parties. The need for impartiality does not mean that the ICL should refrain from taking steps in the proceedings that a party does not want the ICL to take. Holden CJ expressed the view that an ICL should only be removed in the case of actual rather than perceived or alleged impartiality because otherwise a party could apply to have an ICL removed simply because a party perceived the representative was not on their side of the case on running in their favour.

    c)The last point is the public policy consideration of the costs of the ICL being met by legal aid and the further costs that would be incurred in appointing a new ICL with the need for that ICL to become familiar with the file.

20. The father’s counsel made submissions in reply said that this issue goes beyond his clients concerns but also to the wider administration of justice and the role of the ICL. His argument relies on the Court accepting that the ICL is a lawyer acting for an opposing party. That is a fundamental misconception of the ICL’s role. It ignores the fact that the ICL is a party not a lawyer acting for a party on instructions. The individual lawyer is appointed as the ICL in that capacity. Section 68L itself refers to the ICL being appointed to represent the child’s interests. That is a different to representing the child on instructions. Section 68L(4) makes it very clear.

21. The father’s counsel emphasised that the ICL could not help but be aware of the fact that the father was prepared to concede the fundamental basis of this case which was that the children should live with him on a full time basis and would necessarily be influenced by that. The whole difficulty with this line of reasoning is that again it ignores the fact that the ICL is a party to the proceedings. The ICL would have been entitled to have been present throughout that mediation. If the ICL had been involved in mediation, the ICL would have a much fuller picture of the context of the father making that proposal. Mr Puckey also referred to the theoretical risk that the ICL would use this information to her advantage. That submission also shows a fundamental misunderstanding of the ICL because the ICL is not opposing either parent. The ICL’s represents the children’s interests. The ICL is not in an adversarial position in the same way that the parties are. Indeed parenting proceedings the cell not surely adversarial or any longer because of division 12A of the Family Law Act 1975. The position of ICL is analogous to counsel assisting a royal commission. See Bennett and Bennett (1991) FLC 92-191.

22. Chisholm J considered the role of the ICL in T and L (2000) FLC 93-056. That case also concerned an application to discharge the ICL. Chisholm J said:

    “The critical question in considering an application to remove a child's representative is whether the representative is likely to carry out his or her task properly. … it might well be appropriate to remove a child's representative where the evidence showed that he or she had deliberately misled the Court or behaved in unethical or unprofessional ways.  It might also be appropriate to remove a child's representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially.  Such circumstances might cast doubt on the ability of the child's representative to "act in an independent and unfettered way in the best interests of the child”.

    It is appropriate to note in this connection that it is frequently part of the child's representative's role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child's interests.  Differences of views are of course inevitable in litigation.  While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests.  I agree with the child representative's submission that it is important to avoid a situation in which the child representative "is a captive or the most vocal, litigious or dissatisfied parent or party.”

Costs

1. The mother and the ICL sought costs.  Counsel agreed that I should incorporate my decision with respect to costs into these reasons. The mother sought costs in the sum of $2744. The ICL sought costs in the sum of $1900. The father did not take issue with the quantum sought or the proposed order for costs being made on the basis that the application was not straightforward and that no Counsel had any authority directly on point.

2. The mother’s counsel submitted that the mother has limited finances and is not in receipt of legal aid and that the father is in a stronger financial position than she is.

3. While it is true that there was not a case authority directly on point, it is also apparent from my reasons that there were fundamental flaws in the father’s argument primarily relating to a misconception of the ICL’s role and status in proceedings. In my view, there are justifying circumstances to depart from the usual rule that each party pay their own costs. The father has been wholly unsuccessful in his application. The quantum for the mother and the ICL are reasonable as the argument took up most of the morning. In the circumstances, I am satisfied that it is appropriate to order the father pay the mother’s and the ICL’s costs’. I will order the father to do so within 60 days.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  12 October 2015