Crowley and Picton

[2017] FamCA 98

FAMILY COURT OF AUSTRALIA

CROWLEY & PICTON [2017] FamCA 98

FAMILY LAW – LEGAL PRACTITIONERS – Discharge of Independent Children’s Lawyer – Where the father seeks an order that the Independent Children's Lawyer be discharged – Where the father alleges that the Independent Children's Lawyer has failed in their duty to protect the child – Consideration of the role of the Independent Children's Lawyer – Application dismissed.

In the matter of P and P (1995) FLC 92-615
T & L (2000) FLC 93-056

APPLICANT: Mr Crowley

RESPONDENT: Ms Picton

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: WOC 393 of 2013

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 22 February 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Jackson

SOLICITOR FOR THE RESPONDENT: Access Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

Orders

IT IS ORDERED

1. That the application of the father for the removal of the Independent Children’s Lawyer is dismissed.

2. That each party file and serve all affidavits upon which he or she relies by 4.00 pm on 15 March 2017, noting that each party may rely on only one affidavit of each witness including the parties.

3. That the matter be listed for call-over on 10 April 2017.

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 Crowley & Picton 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 SYDNEY

FILE NUMBER: WOC 393 of 2013

Mr Crowley

Applicant

And

Ms Picton

Respondent

REASONS FOR JUDGMENT

1. Mr Crowley (“the father”) and Ms Picton (“the mother”) are the parents of three children. Only one child, X, born in 2009 (”the child”), is the subject of competing parenting applications. The child, who is now aged eight years, has been the subject of litigation since May 2013, for almost half of his life.

2. The matter was listed for the first day of the Less Adversarial Trial before me on 28 November 2016. On that day, the father indicated that he wished to proceed with an application to remove the Independent Children’s Lawyer (“ICL”). Accordingly, that application was listed for hearing on 22 February 2017 and the first day of the trial was adjourned. Had it not been for that application, directions would have been made for the matter to be prepared for hearing and the matter would have been placed in the call-over on 20 February 2017 and a date for trial allocated.

3. The father’s application to remove the ICL was contained in an Application in a Case filed 24 August 2016.

4. In the hearing on 22 February 2017, the father, who was self-represented, relied upon affidavits sworn by him on 25 November 2016, 15 December 2016, 19 December 2016 and 24 August 2016. He also relied on an affidavit of the mother sworn on 13 December 2016, the Single Expert’s Report of Dr H, material from subpoenas, and emails passing between himself and the ICL.

5. Much of the material upon which the father relied had no relevance to the application.

6. The ICL relied upon two affidavits sworn by her on 12 January 2017 and 21 February 2017.

7. The mother, who appeared by counsel, did not seek to put any evidence before the Court.

8. The father filed a substantial case outline document entitled “Issues of Controversy & Issues for Consideration”.

9. His complaints about the conduct of the ICL seem to be encapsulated as follows:

   ·    That the ICL, aware of the father’s allegations that the mother had injured the child, did not make any protective recommendations to the Court;

   ·    That the ICL, aware of evidence about the child’s sexualisation, participated in drafting orders regarding counselling but “never followed through with counselling”;

   ·    That the ICL, aware that the mother had been diagnosed with a bipolar disorder, did not “factor this into any recommendations to the Court to safeguard the Child”.

10. The complaints can be summarised, as they were in the father’s document, as follows:

    That the ICL failed in her duty to protect the Child in these proceedings by ensuring the appropriate safeguards were in place, such as counselling, and protection from violence, despite material being readily available from affidavit material and subpoena material, and therefore should be discharged.

11. The ICL deposed that:

    ·    She was appointed as ICL on 24 May 2013 and has met with the child four times;

    ·    She has attended mediation with the parents on three occasions;

    ·    She has issued subpoenas to numerous relevant entities (I note that the father referred to the ICL issuing over 50 subpoenas);

    ·    She has attended at hearings on 12 March 2015, 7 October 2015, 15 December 2016 and 21 December 2016;

    ·    She has made enquiries with, and liaised with, a number of counselling entities;

    ·    She has been instrumental in instructing the single expert, Dr H;

    ·    She has requested the parents to supply urinalysis samples since March 2015 until the present.

12. In relation to specific allegations by the father that the ICL had said highly inappropriate things to him that indicated that she supported the mother’s case, the ICL denied each allegation.

THE LAW

1. In In the matter of P and P (1995) FLC 92-615, the Full Court stated that the role of the ICL (then called the “Separate Representative”) was to:

   1. Act in an independent and unfettered way in the best interests of the child.

   2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

   3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.

   4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.

   5. Test by cross examination where appropriate the evidence of the parties and their witnesses.

   6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.

   7. Minimise the trauma to the child associated with the proceedings.

   8. Facilitate an agreed resolution to the proceedings.

2. Their Honours added:

   These statements are of general application to all cases and we are in broad agreement with them.

   We would add that for a separate representative to adequately fulfil those roles, it is highly desirable that he or she should be appointed at as early a stage in the proceedings as possible, usually at the first directions hearing. In cases such as this one, the appointment should usually be made earlier, if this is possible.

   We also consider that it should usually be the role of Counsel for the separate representative to call the expert evidence, although not be limited to examination in chief of such witnesses. This does not, of course preclude the parties from calling expert evidence of their own in appropriate cases.

   So far as sterilisation and other parens patriae cases are concerned, the above principles also apply, albeit with some modification. 

   A primary duty is to establish whether the child in question is Gillick competent and because neither the parent nor the separate representative can consent to the procedure if the child is not Gillick competent, there is little room for the separate representative to perform the role of facilitating an agreed resolution to the proceedings. This will not always be the case, however, and cases such as Re Michael may well offer a role for the separate representative in this regard. 

   A separate representative should consider, upon receipt of the judgment, whether an appeal is warranted, provided that this process is considered to advance the welfare of the child.

   We stress that the above discussion of the role of the separate representative and his or her duties and the circumstances in which a next friend is to be appointed are intended by way of guideline only and there may well be cases where a different approach is warranted. We trust however, that it will be of assistance in dealing not only with these matters, but all cases in which a separate representative is or should be appointed.  

3. As can be seen from this formulation, the role of the ICL does not extend, as the father would contend, to a pro-active protective role, neither does the role extend, as the father contends, to an obligation on the ICL to arrange counselling for a child, although an ICL might well facilitate such arrangements if the Court so orders or the parents request the assistance of the ICL.

4. In broad terms, the parents have an obligation to make such applications to the Court as are necessary to protect the child. The Court has the obligation of making such orders as are in the child’s best interests. The obligation of the ICL is to ensure that the Court has all of the material evidence for its consideration when making such decisions.

5. In this matter, at the times relevant to the father’s complaints, he was legally represented, the applications brought on his behalf were formulated by his legal representatives and, he conceded, the material which was needed to be put before the Court had been gathered by the ICL by issuing subpoenas.

6. The principles to be applied in an application to discharge an ICL have been considered in a number of cases.

7. It is not in dispute here that the Court has the power to discharge an ICL.

8. In T & L (2000) FLC 93-056, Chisholm J summarised the law as follows:

   At least in general, then, it seems that 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 is not necessary to attempt to state generally the circumstances that might cause the Court to find that child representative is unlikely to do so.  Given the issues in the present case, it is sufficient to say that 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 representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove a child representative merely because a litigant has taken the view that the child 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".

9. In that framework, I now turn to deal with the father’s complaints and the basis upon which he submits that the ICL should be removed.

That the ICL, aware of the father’s allegations that the mother had injured the child, did not make any protective recommendations to the Court.

1. Firstly, it must be noted that the father’s allegations that the mother had injured the child were allegations only and the subject of contention. The allegations were denied by the mother.

2. It is not clear when the allegations first arose. On 2 February 2015, Consent Orders were made restraining the mother from bringing the child into contact with her partner, Mr A, or his daughter. It does not appear that protecting the child from the mother was an issue at that time. The Consent Orders provided for the child to spend unsupervised time with her.  

3. The ICL tendered a Case Outline provided to the Court on 12 March 2015 which drew the attention of the Court to the father’s allegation “that the child is at significant risk of harm while in the care of the mother”. The ICL also referred to the father’s allegation that the mother’s partner, Mr A, had harmed the child.

4. The father himself filed affidavits setting out his evidence in relation to alleged assaults by the mother upon the child.

5. Child protection authorities had been alerted to the father’s allegations.

6. The matter was heard by Judge Kemp in the Federal Circuit Court on 12 March 2015 and his Honour ordered that the child live primarily with the mother. Also on that day, his Honour made a series of Orders by consent which included orders for urinalysis; orders restraining both parties from using drugs and consuming alcohol when caring for the child; orders restraining both parties from denigrating the other; orders restraining the father and the paternal grandmother from discussing past allegations of sexual abuse with the child; and orders restraining both parties from exposing the child to domestic violence.

7. The Consent Orders contained, relevantly to another of the father’s complaints, two further orders. Firstly, an order restraining both parents from taking the child to counsellors other than as recommended by the ICL who was to provide her recommendation within 14 days. Secondly, an order that the father continue to attend counselling.

8. If the father’s complaint is that the ICL failed to seek orders to protect the child on 12 March 2015, then two matters arise. Firstly, what other orders might the ICL have sought; and secondly, why were those orders, if appropriate, not sought by the father?

9. The real basis of the father’s complaint is that the ICL did not make submissions to the effect that the child should remain living with the father. The decision, however, was the decision of the Court, not of the ICL.

10. There is no substance in this complaint.

That the ICL, aware of evidence about the child’s sexualisation, participated in drafting orders regarding counselling but “never followed through with counselling.”

1. The issue of counselling for the child has been a matter of contention since the father alleged that the child had disclosed sexual abuse in 2013. At the time, the child was four years old and the alleged perpetrators were two girls aged ten and eleven years. The allegation was investigated by JIRT but was not substantiated.

2. In August 2014, without the knowledge of the mother, the father arranged for the child to attend a counsellor, Ms B, who prepared a report. There were three sessions of counselling. The father participated in one session but preferred the paternal grandmother to attend with the child as she was caring for the child while he worked. The paternal grandmother viewed the purpose of the counselling as forensic. The psychologist viewed the purpose as addressing trauma and providing safety for the child. The father and the paternal grandmother were resistant to the psychologist’s advice that the mother’s consent was required.

3. In November 2014, the ICL made enquiries at C House in D Town about suitable counsellors for the child.

4. On 8 December 2014, C House provided a list of suitable counsellors including Ms E.

5. On 24 December 2014, the ICL contacted Ms E and arranged an appointment for the child. 

6. In January 2015, the father took the child to see Ms E. In an email dated 11 March 2015, Ms E advised the ICL:

   I saw [the father] once, on 19^th January 2015. I then made an appointment for [the child] after he started school, as I felt it important he settled into school prior to starting work with me. [The father] was not happy with this and had no insight into why it may be important to let [the child] adjust to school. He saw my decision as a “refusal to see [the child]” on a subsequent phone call the following day, which I tried to address and explain my position.

   On contacting [the father] prior to [the child’s] appointment to remind him of [the child’s] appointment, my admin assistant was told [the child] would not be attending without further explanation. …

   During the appointment in January, I challenged [the father] regarding a number of decisions regarding [the child] and his position he was taking. I can only conclude that [the father] was not comfortable with my questions.

7. Ms E also told the father that the purpose of counselling was not to provide forensic evidence.

8. The ICL made enquiries at F Clinic at the University of D Town.

9. On 3 July 2015, the ICL wrote to both parents seeking their consent to arrange counselling either with Ms E or Ms G. The father agreed to Ms G. The mother did not respond.

10. Arrangements were made for the preparation of a report by a single expert, Dr H, and appointments were arranged for 29 July 2015. Dr H’s report was released to the parties in August. The ICL spoke to Dr H who advised that it was important for the child to settle at school before arrangements were made for further counselling. That recommendation is contained in paragraph 75 of Dr H’s report.

11. The father has been aware, since August 2015, that the single expert did not support the commencement of further counselling for the child.

12. If at any time after the release of Dr H’s report in August 2015, the father was of the belief that the child should be engaged with a counsellor, he could have made an application to the Court.

13. On 7 October 2015, her Honour Justice Stevenson heard competing applications in relation to the time the child spent with the father. The Orders made on that day do not refer to any application that the child attend counselling.

14. A further Application in a Case was hear by his Honour Justice Watts on 19 September 2016. Again, the orders made on that day do not refer to any application that the child attend counselling.

15. When the matter came before me for the first day of the Less Adversarial Trial on 28 November 2016, the issue of counselling for the child was not agitated.  

16. This complaint is not made out. 

That the ICL, aware that the mother had been diagnosed with a bipolar disorder, did not “factor this in any recommendations to the Court to safeguard the child”.

1. There is no evidence that the mother has been diagnosed as suffering from a bipolar disorder although in February 2015, a psychologist recommended that the mother be referred to a psychiatrist to be screened for that disorder.

2. Again, if the father was of the view that some order was necessary to safeguard the child, it was at all times open to him to make the appropriate application.

CONCLUSION

1. The father has not established any basis for the removal of the ICL.

2. His application will be dismissed.

3. It is important for the child that this matter be heard and determined. Orders will be made for the filing of trial affidavits so that the matter can be listed for hearing.  

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 February 2017.

Associate: 

Date:  24/02/2017