Corey and Jebbett (No. 2)

[2018] FamCA 1034

FAMILY COURT OF AUSTRALIA

COREY & JEBBETT (NO. 2) [2018] FamCA 1034

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – application by mother for removal of the Independent Children’s Lawyer – where it was difficult to identify with any precision whether the mother contended for the discharge of the Independent Children’s Lawyer on the basis of alleged bias against her and/or misbehaviour or incompetence – where none of the matters agitated by the mother demonstrated apprehended bias or a lack of impartiality on the part of the Independent Children’s Lawyer – where there is no merit in the allegations of misbehaviour or incompetence advanced by the mother against the Independent Children’s Lawyer – application dismissed.

Family Law Act 1975 (Cth) ss 68L, 68LA, 91B

Knibbs & Knibbs [2009] FamCA 840
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Re K (1994) FLC 92-461; [1994] FamCA 21

APPLICANT: Mr Corey

RESPONDENT: Ms Jebbett

INDEPENDENT CHILDREN’S LAWYER: Anthony Kingston, Norman & Kingston Solicitors

FILE NUMBER: BRC 9223 of 2017

DATE DELIVERED: 3 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Landmark Lawyers

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston Solicitors

Orders

1. That the mother’s Application in a Case filed on 8 November 2018 be dismissed.

2. That the costs of the Independent Children’s Lawyer and of the father of and incidental to that application be reserved to the trial.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corey & Jebbett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9223 of 2017

Mr Corey

Applicant

And

Ms Jebbett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Parenting proceedings[1] concerning the child D (born in 2012 and aged six years) between his parents, Mr Corey (“the father”) and Ms Jebbett (“the mother”) and the lawyer appointed under s 68L of the Act to independently represent the child’s interests in the proceedings (“the ICL”) are listed for a three day trial to commence today, Monday 3 December 2018.

   [1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Last Monday 26 November 2018 I heard the mother’s Application in a Case filed on 8 November 2018 seeking orders, inter alia:

   1.        That ICL to be removed from this case.

   2.The order 10 and 11 of September 2018 in regards to 91B of the family Act, requested by ICL to be vacated.

   3.        That ICL comply with order of 24 of September 2018 at Point 7.

   (As per original)

3. After hearing submissions I indicated at the hearing that the mother’s application would be dismissed.  I now formally dismiss that application for the following reasons.

The s 91B intervention request

1. It is convenient to first deal with this part of the mother’s application. 

2. On 24 September 2018 I made orders to facilitate the trial of these proceedings to commence today.

3. As part of those orders, I made orders at the request and submission of the ICL in the following terms:

   10.Pursuant to s 91B of the Family Law Act 1975 (Cth), the Court requests the intervention of the Director-General of the Department of Child Safety, Youth and Women in the proceedings, relating to the welfare of the child, [D] born … 2012.

   11.Upon request from the Director-General, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General and copying of any part of it to enable consideration of the request to intervene in the proceedings.

4. Part of the evidence prepared for trial included the family report of Ms H filed with her affidavit on 12 September 2018 as part of the ICL’s case. 

5. The child the subject of these proceedings has been diagnosed as having Autism Spectrum Disorder (“ASD”).  The father has been diagnosed with ASD together with clinical depression and Asperger’s Syndrome. 

6. In undertaking her report Ms H records in it that she has had discussions with one Ms J who had been asked by the ICL to undertake a psychological assessment of each of the parents and the child.  It is apparent from Ms H’ report that Ms J raised some concerns about the mother stating that she had diagnosed the mother as having Narcissistic Personality Disorder and “possible ASD”.  Ms J apparently related that she was unable to diagnose the ASD in the mother with any certainty as the mother had refused to engage in a clinical interview.

7. Ms H records in her report a range of concerns held about the father and his capacity to regulate his emotions and to meet the child’s needs on an unsupervised basis.  Ms H confirms that Ms J related to her similar concerns held by Ms J. 

8. However, Ms H also records in her report that Ms J related concerns about the mother not meeting the child’s social and emotional developmental needs and concerns about the mother having a limited understanding of the child’s emotional and social needs.

9. Ms J expressed a range of concerns about the lack of assistance provided to the child in terms of appropriate supports in early childhood to help him develop. 

10. Of course all of this evidence is untested but the point is that available to the ICL, and to the Court, was evidence sourced to experts raising significant concerns about the parenting capacity of each of these parents. 

11. In those circumstances it was unsurprising that the ICL sought that a request for intervention of the Department of Child Safety, Youth and Women (“the Department”) be made pursuant to s 91B of the Act. In making that order this Court recognised that the Court may well be greatly assisted by such intervention.

12. In the event, it does not seem that the Department intends to intervene in the proceedings at this stage and thus does not intend to participate in the trial of the proceedings.  In that sense then, the mother’s application might be seen as futile.

13. In any event, the mother was unable to identify in any of her submissions any legitimate cause for complaint about the making of the request, nor was she able to demonstrate any cogent reasons for the order to be set aside. 

Removal of the ICL

1. The mother’s affidavit in support of her application comprises a long list of complaints about the ICL.  It is not immediately apparent from the mother’s affidavit as to whether the mother seeks that the currently appointed ICL be removed and another ICL be installed in his stead; or whether there ought be no ICL participation in this case. 

2. In the course of the hearing of the application, when it was pointed out to the mother that no replacement ICL could be arranged to allow the trial to proceed, in the event that the mother’s application enjoyed success, the mother confirmed that she did not wish to have the trial adjourned.  It thus became apparent that her application is in reality for the ICL to be removed with no replacement ICL installed.

3. The mother’s affidavit filed in support of this application makes numerous complaints concerning the ICL’s conduct of the matter.  Those complaints include the following:

   a)the ICL told the family report writer that he believed the mother lived in the Suburb K area when she had already told him she lived in Suburb L (paragraphs 2 and 3);

   b)the ICL could not find/lost videos the mother had sent to him of the child’s poor behaviour in his therapy sessions following time with the father (paragraphs 4 – 10);

   c)the ICL nominated a family report writer located 85km from the mother’s home which took her and the child 3.5 hours on public transport to reach (paragraphs 11 – 15);

   d)the ICL “threatened” the mother to give priority to Court procedure rather than finding accommodation (paragraph 16);

   e)the family report writer knew a lot about the ICL, such as when he was last on holiday (paragraphs 17 – 18);

   f)the ICL told the mother that the family report writer does not provide child care however the mother searched her website and discovered that she did offer child care (paragraphs 19 – 21);

   g)that the family report writer “was under the influence of ICL” because she spoke to the mother in a loud, firm manner (paragraph 21);

   h)the ICL did not nominate a family report writer with training and experience in working with children with disabilities to ensure their report addresses the child’s needs (paragraph 22);

   i)the ICL should have provided the psychological report to the family report writer before the family report was completed (paragraphs 26 – 27);

   j)the ICL did not provide the family report writer or psychologist with a copy of all Court documents and subpoenaed material prior to the interviews (paragraphs 28 – 30, 38, 54, 58 – 60);

   k)the ICL told the mother outside of Court that the orders he was going to seek were for the child to spend supervised time with the father at Child Dispute Services supervised by three people.  The mother agreed to that proposal but he went quiet when asked about that by the Federal Circuit Court judge.  The judge ended up ordering that only changeovers be supervised (paragraphs 31 – 33);

   l)the ICL did not issue the subpoenae in a timely manner (paragraphs 34 – 37);

   m)

   the ICL had not read parts of documents and could not assist the

   
   

   judge/misled the Federal Circuit Court judge (paragraphs 39 – 48);

   n)the ICL told the family report writer that the mother would not accept legal advice however the mother had received conflicting legal advice from two lawyers and she had told the ICL that (paragraphs 49 – 53);

   o)the ICL effectively directed the expert psychologist to diagnose the mother with Narcissistic Personality Disorder and ASD (paragraph 53);

   p)the ICL took a long time to give the mother the Queensland Police Service subpoenaed material/it is not clear whether he did (paragraphs 61 – 64);

   q)the ICL insisted on being involved in the mother’s appeal and filed his Summary of Argument 15 minutes late (paragraphs 65 – 67); and

   r)the ICL is not fulfilling his role as he is not taking the child’s needs and best interests into account and he has acted in a dishonest manner intended to mislead the Court (paragraphs 68 – 81).

4. Other complaints articulated by the mother relate to her dissatisfaction with the family report writer and the single expert psychologist.  It would seem that the mother attempts to correlate complaints about the experts with the conduct of the ICL. 

5. Taking into account the mother’s affidavit containing the list of complaints referred to, together with the mother’s oral argument on the hearing of the application, it is difficult to identify with any precision whether the mother contends for the discharge of the ICL on the basis of alleged bias of the ICL against her and/or misbehaviour or incompetence on the part of the ICL.

6. As is pointed out in the written submissions of the ICL in opposing the order for discharge sought by the mother, the ICL was appointed by order of Judge Howard in the Federal Circuit Court on 6 December 2017.  There was no appeal from that particular order despite the feature that the mother filed an appeal from orders made by Judge Howard respectively on 7 December 2017 and 6 February 2018. 

7. The appointment of an ICL in these proceedings was plainly within the guidelines expressed in Re K.[2]  Specifically one of those guidelines includes where there exists “significant mental illness or personality disorder in relation to either party or a child” and on the expert evidence earlier referred to that guideline is clearly met.  Further, other guidelines as set out in Re K are also clearly met in this case.  For example, cases where there is an apparently intractable conflict between the parents.  On the primary proposed orders of the parents, there is a vast divergence between them as to the orders to be made in the child’s best interests and those respective proposals are advanced against a background of a “high level of long standing conflict between the parents”.

   [2] (1994) FLC 92-461 at 80,772.

8. To the extent that the mother’s complaints are characterised as allegations of a lack of impartiality on the part of the ICL, I accept the approach to be taken is as identified by Murphy J in Knibbs & Knibbs[3] in turn by reference to the judgment of Holden CJ in Lloyd and Lloyd and Child Representative.[4]  At [39] and [40] Murphy J, by reference to the judgment of Holden CJ referred to observed:

   39.      The reasons why that is so, as identified by His Honour include:-

   A 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 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 in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative”.

   40.With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.

   (As per original)

   [3] [2009] FamCA 840.

   [4] (2000) FLC 93-045.

9. Commencing at [129] Murphy J observed:

   129.Even if I was persuaded (which I am not) that the facts and circumstances outlined by the mother raised concerns about whether the ICL should remain in the case, there are a number of counter-veiling considerations that need to be taken into account before this court would, some eight weeks prior to trial,  discharge an ICL who is familiar with the case, has undertaken a significant amount of work including liaising with a family consultant, and who has engaged in communication between the parties.

   130.As Holden CJ pointed our [sic] in Lloyd above there are “public policy” considerations relevant to the question.  Of course, in circumstances where I was of the view that the position of the ICL was seriously compromised for partiality, lack of objectivity or failure to properly carry out the onerous obligations associated with that office, a number of considerations, including, most importantly, the best interests of the children, would result in my requiring significant persuasion that the Independent Children’s Lawyer should not be removed.

   131.Equally, where, as here, there is little foundation for any such assertion, a number of other considerations are directly relevant to not removing the ICL. Public policy considerations relating to funding and the use of public funds were referred to Holden CJ, together with the additional financial ramifications of appointing a new ICL when the existing ICL has carried out significant work.

   132.Here, at the time the application was heard, there were about 8 weeks until the trial of this action is to be held. There is potential for delay while a new ICL is appointed and properly appraises him or herself of all of the facts and circumstances relevant to that appointment and the representation of these two children.

   133.Whatever factual disputes and issues might surround the future

   
   

   co-parenting of these two children, what is clear beyond argument is that these two children need the parenting issues in respect of them to be resolved as soon as possible. Anything which jeopardises that occurring, should, in my view, be avoided unless there was a very good reason to order otherwise.

10. I respectfully adopt those observations by his Honour. 

11. Here, at the time the application was heard, there was only seven days until the trial of the action is to be held.  That heightened the need for a compelling case to be demonstrated by the mother for removal of the ICL.

12. The mother demonstrated no such compelling case with respect to apprehended bias or lack of impartiality on the part of the ICL.  None of the matters agitated by the mother demonstrated such a lack of impartiality.  In other words, whilst it can be accepted that the mother perceives difficulties in the conduct of the ICL in this respect, on no objective assessment of the complaints can it be seen that the ICL has demonstrated a lack of impartiality.

13. It bears emphasis in this context that s 68LA of the Act sets out the role of an ICL and it can be seen that many of the subsections of s 68LA are expressed in mandatory terms. For example, subsection (2) mandates that an ICL “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”. Further, that section mandates that the ICL must “act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child”.

14. To like effect, subsection (3) mandates that 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 that course of action”.

15. A useful example of the last mandatory requirement referred to is the ICL submitting that the Court ought to make a request for intervention by the relevant Department under s 91B of the Act as earlier dealt with. That is a clear example of the ICL acting in a manner in which the ICL was plainly satisfied was in the best interests of the child, albeit that the adoption of that particular course of action may not have found favour with either parent.

16. Whilst in oral argument the mother agitated complaints about the ICL concerning her appeals, from interlocutory orders, suggesting that somehow the ICL “changed his position” in relation to the appeals, there is no merit in these arguments.  The mother’s affidavit annexes the ICL’s submissions in the leave to appeal application which are in fact entirely in conformity with the outcome of the appeal proceedings. 

17. In summary, the mother appears to adopt the position that if the ICL makes a submission which is contrary to her position or somehow adverse to her position then the ICL must be biased towards her. Plainly, such a contention cannot be accepted and indeed, as referred to, the mandatory requirements upon the role of the ICL imposed by s 68LA demonstrate that such a contention can have no substance.

18. It is for these reasons that there is no substance in any of the mother’s complaints to the effect that the ICL has demonstrated any lack of impartiality in the conduct of the matter to date.

Alleged incompetence and/or misbehaviour on the part of the ICL

1. The mother asserts that the ICL chose a report writer inconvenient to her, presumably as deliberate conduct of the ICL demonstrating mala fides on his part.[5]  I accept the submissions of the ICL that “both parents reside in the … suburbs of Brisbane” and it cannot be said that one parent was more greatly inconvenienced than the other in the selection of the particular family report writer who in fact conducts interviews on the Gold Coast.  Of course another report writer more convenient to both parties might have been identified and engaged by the ICL, and ideally that would be so, but I am not satisfied of any relevant consequence of the selection of the report writer in this case.  As is pointed out by the ICL, the mother did not assert any objection to the chosen report writer at the time of the appointments.

   [5] Paragraphs 11 – 16 of the mother’s affidavit filed 8 November 2018.

2. The mother’s assertions to the effect that the ICL somehow improperly influenced the views of the family report writer are so lacking in particularity or substance as to not require any detailed disposition of these arguments.[6]

   [6] See paragraphs 17 – 21 of the mother’s affidavit filed 8 November 2018.

3. To similar effect, there is no substance in the mother’s complaint that the ICL misled the mother regarding the operation of s 65L of the Act when the matter was mentioned before Judge Jarrett on 16 April 2018. As the ICL points out, the submissions of the ICL on that occasion were not accepted by Judge Jarrett. Orders were made that day by the Court for changeovers between the parents to be supervised by a Court counsellor. That order was not made by consent. There could not be any relevant consequence in those circumstances to any misunderstanding by the mother of s 65L of the Act, whether or not any such misunderstanding was contributed to by anything done by the ICL, which is not in any event apparent.

4. The mother complains that Judge Howard was misled on 6 February 2018.  Those issues have been subsumed in the appeal proceedings that were pursued by the mother and have been determined.  There is no substance in this complaint.

5. The mother complains that the ICL has not kept some of her information confidential. With all due respect to the mother, who represents herself, the ICL is not under any strict obligation to keep confidential any information of the mother required to be disclosed or relayed to experts for the purpose of the ICL discharging his statutory obligations as referred to in s 68LA of the Act. The mother’s central complaint in this respect seems to be directed to the ICL providing information to one expert as to why the mother was no longer in receipt of a grant of legal aid. Evidence was provided by the ICL on the hearing of this application that the relevant expert had asked the mother to disclose why she was no longer in receipt of legal aid and the mother refused to disclose relevant details. In that context, the ICL relayed to the expert what he knew about the reasons for the termination of the mother’s grant of legal aid which was, in circumstances where the mother was refusing to disclose relevant information, entirely appropriate.

6. With all due respect to the mother, an example of her capacity to make inflated or exaggerated complaints without accompanying corroboration is her complaint in paragraph 53 of her affidavit in support of this application to the effect that the ICL effectively directed the expert psychologist to diagnose the mother with narcissistic personality disorder and ASD.  That extraordinary allegation is unaccompanied by any evidence, whatsoever, to support it.

7. Undoubtedly, at the trial of these proceedings the mother will have a reasonable opportunity to cross-examine the experts, including the subject expert, to test any proposition to the effect that the views or any view expressed by an expert is not independent and is in fact the product of influence by the ICL.

8. Similarly, if the mother has concerns about the qualifications of any expert, in particular the expertise of the family report writer Ms H, the mother is perfectly able to test the expertise of either of the experts or any of the experts to be called in the proceedings under cross-examination.

9. The mother’s complaints concerning the lack of timeliness of the ICL in providing copy documents produced upon subpoena, ignores the feature that there was some delay in the Court making subpoena material available to the ICL.  That is, whilst the orders made on 24 September 2018 included, in Order 7, leave to the ICL to copy and distribute to the parties identified documents, there was a delay on the part of the Court in making such documents available to the ICL.  In any event, as at the hearing of this application there was no longer any outstanding documents yet to be provided by the ICL.  That is, both of the single experts retained by the ICL have copies of all relevant subpoena material as have each of the parties.

10. With all due respect to the mother, her approach in terms of criticisms of the ICL seems to be driven by the feature that she is unhappy with at least some aspects of the expert reports.  That is, that her complaints have arisen or been made for the first time only after, for example, the report of Ms H first became available.

11. In summary, I am not satisfied of any merit in the allegations of misbehaviour or incompetence advanced by the mother against the ICL as a basis for the ICL to be discharged.

Conclusion

1. The mother did not argue on the hearing of the application any enforcement of the earlier order made in September 2018 for the ICL to copy subpoena documents and provide them to relevant parties as this had occurred in the period prior to the hearing of the application. 

2. As noted, on the hearing the Court intimated the preliminary view that there was no merit in the application and that it ought be dismissed.  That position ought be formalised by orders which dismiss the mother’s application.  At the request of the ICL the parties’ costs of and incidental to that application are to be reserved and the question of costs of this application can be dealt with together with any other costs applications at the conclusion of these proceedings.

3. For these reasons the formal orders will be:

   1.That the mother’s Application in a Case filed on 8 November 2018 be dismissed.

   2.That the costs of the Independent Children’s Lawyer and of the father of and incidental to that application be reserved to the trial.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 December 2018.

Associate: 

Date:  3 December 2018