Knibbs and Knibbs [2009] FamCA 840
Kingley & Arndale (No 2) (2010) 255 FLR 326
Bondai & Bretton (No 2) [2010] FamCA 1237
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

APPLICANT:

Ms Dean

RESPONDENT:

Mr Susskind

INDEPENDENT CHILDREN’S LAWYER:

Robert Grant

FILE NUMBER:

BRC

1299

2011

DATE DELIVERED:

31 October 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

8 October 2012

REPRESENTATION

FOR THE APPLICANT:

Ms Dean in Person

FOR THE RESPONDENT:

Mr Susskind in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Westbrook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Grant & Associates

Orders

The mother’s Application in a Case filed 22 August 2012 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1299 of 2011

Ms Dean

Applicant

And

Mr Susskind

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought by the mother, who is a party to parenting proceedings awaiting trial in the Court’s Magellan list, for an order that the Independent Children’s Lawyer (ICL) in the case be removed and replaced.

The Independent Children’s Lawyer, Robert Grant, who was appointed ICL pursuant to an order of Federal Magistrate Baumann in March last year, opposes the application. The father, too, opposes the mother’s application.

The parents’ competing applications for parenting orders concern their two children, who are 9 and 4 years of age respectively and involve allegations of sexual abuse of the two girls by the father. The mother makes the allegations relying on disclosures said to be made by the children. The matter is currently listed for a final hearing in March, 2013.

In support of her application to have the ICL removed, the mother, who represents herself in the proceedings, relies on three of her own affidavits, with quite a number of annexed documents. The ICL relied on his own affidavit and instructed counsel to appear for him, whilst the father, who also represents himself, relied on his own affidavit also.

The mother’s case for the ICL’s removal

As best I can discern from her affidavits and from her oral submissions, the mother argues that the ICL should be removed because he:
·has not been acting impartially or independently in the matter;
·has been acting on the basis of his own personal view of the case and not in accordance with the children’s best interests;
·has acted unprofessionally: by not bringing appropriate evidence before the court, by not properly briefing the family report writer; and by misleading the court; and
·has a conflict of interest in the matter.

In her affidavits, the mother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dean & Susskind

Details

AGLC: Dean & Susskind [2012] FamCA 897
Case: [2012] FamCA 897
Decision Date

CaseChat Overview and Summary

In *Dean & Susskind* [2012] FamCA 897, the Family Court of Australia considered an application by the mother, Ms Dean, for the removal of the Independent Children’s Lawyer (ICL), Robert Grant, in parenting proceedings concerning her two young children. The father, Mr Susskind, opposed the application. The proceedings involved serious allegations of sexual abuse against the father by the children.

The mother sought the ICL's removal on grounds including alleged lack of impartiality, unprofessional conduct, misleading the court, and a conflict of interest. Specific allegations included the ICL being seen conversing and laughing with the father and paternal grandmother, potentially receiving a note from the grandmother during a hearing, speaking to the mother in an "accusing and arrogant manner," and allegedly causing the mother's Legal Aid funding to be cut. The mother also contended the ICL failed to brief the family report writer with all relevant documents and misled the court regarding the status of a police investigation and the children's therapeutic involvement.

Justice Forrest applied established principles regarding the role and removal of an ICL, emphasising that courts should be slow to remove an ICL based on unsubstantiated complaints or mere perceptions of partiality. The court noted that an ICL's duty is to act independently and in the children's best interests, which does not require them to follow the wishes of parents or children slavishly. While acknowledging that apprehended bias could be a ground for removal, the court cautioned against removing an ICL solely based on the appearance of partiality, particularly when the ICL is making submissions consistent with their independent professional opinion. The court found that the mother's allegations, when examined against the ICL's evidence and the applicable legal principles, did not demonstrate actual or apprehended bias sufficient to warrant removal. The court noted that many of the mother's factual assertions were denied by the ICL and the father, and in the context of interim proceedings, could not be substantiated. Furthermore, the court considered the timing of the application, with the trial imminent, and that removing the ICL after he had significantly prepared the matter would not be in the children's best interests.

Consequently, the mother's application for the removal and replacement of the Independent Children’s Lawyer was dismissed.

Orders