Dean & Susskind
[2012] FamCA 897
FAMILY COURT OF AUSTRALIA
| DEAN & SUSSKIND | [2012] FamCA 897 |
| FAMILY LAW – CHILDREN – CHILD WELFARE — Independent Children’s Lawyer — Actual or apprehended bias — Application to discharge. |
| Family Law Act 1975 (Cth) |
| 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 | of | 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 deposes to a number of factual matters that she submits support her contentions. There are, in my view, too many to go through them and list each and every one of them. As I understand the mother’s evidence and her submissions, the most significant of the matters raised by her include occasions when, she alleges, the ICL was seen talking with the father and the paternal grandmother in the precincts of the Court and overheard to be giving the father advice and seen to be laughing and joking with them. They include an occasion when the paternal grandmother allegedly handed the ICL a note during a hearing, after which the ICL is said to have made an application to Baumann FM for an order restraining the mother, on an interim basis, from changing the eldest child’s school.
Additionally, the mother alleges that the ICL speaks to her in an “accusing and arrogant manner”, making her feel “bullied, belittled and discriminated against”. She also alleges that the ICL had wanted to attend a Family Group Meeting arranged between Child Safety Services and the father but had not sought to attend her similar Family Group Meeting. Notably, the mother puts no documentary evidence before the Court that supports her assertion that the ICL wanted to attend such a meeting. She indicated orally at the hearing of her application that she intended to subpoena the Child Safety Services file to be able to produce that evidence in the future but was informed by me that the Court can only act on the evidence that is currently properly before it.
Further, the mother also alleges that the ICL caused her Legal Aid funding to be cut and also did not brief the family report writer, consultant social worker, Ms F, with all of the affidavits that the mother had filed in the proceedings, whereas, the mother asserts he did brief her with all of the father’s affidavits. In particular, the mother asserts that her very first affidavit filed on 10 March 2011 was not presented to Ms F by the ICL. The mother also submits that the ICL has not put evidence concerning family violence that is relevant to the best interests of the children before the Court, although I do not understand the precise nature of the evidence the mother contends has not been put before the Court by the ICL.
The mother also alleges that the ICL has mislead the Court by:
·informing the Court that the Queensland Police Service’s investigation into the alleged sexual abuse of the children is closed when the mother asserts that it is not;
·by informing the Court that the children are having therapeutic involvement with psychologist, Mr E, when, according to the mother they are not; and
·by telling the Court he was not aware that the children were seen by counsellors at the D Church when in a Magellan Report previously issued by Child Safety Services such counselling was referred to.
I must say that I do not understand or appreciate the basis upon which the mother submits the ICL has a conflict of interest. With respect to the mother, I do not consider that she has satisfactorily particularised this complaint in her affidavit evidence or in her oral submissions. Accordingly, I consider that this is probably just a general, unparticularised assertion that I could properly consider as part of the argument that the ICL has not been acting impartially or independently in the matter.
All of the evidence, the mother effectively submitted, would satisfy the Court that the ICL in this case should be removed and replaced.
The ICL’s response
The ICL in his affidavit appears to have attempted to address as many of the mother’s concerns as he could. He accepts that he has had conversations directly with the father but attributes that to the fact that the father has not had legal representation in the proceedings to date. He deposes to conversations that pertain generally to court process and to ensuring that the father and the paternal grandmother understand any orders or directions made by the court. He denies having given the father or his family legal advice.
The ICL admits to having conversed with the mother in the presence of her solicitor and asking some questions about “prima facie…apparent inconsistencies” in respect of matters raised by the mother. He attributes that to acting in a forensic manner and denies that he was “accusing and arrogant”.
He deposes to having no specific recollection of being handed a note in court by the paternal grandmother but accepts that he may have been. He deposes to having had an intention to seek an injunction restraining the mother from changing the eldest child’s school in any event. Thus, even if a note had not been passed to him by the paternal grandmother that said something about this, which he cannot remember, he would have applied for it anyway. Further, he deposes to having advised the mother, through her solicitor, of that intention earlier in that day in any event.
The ICL specifically denies having given the father advice about a Contravention Application, which the father had, he says, informed him he was going to bring against the mother as she was not complying with existing orders in respect of the children’s time with their father. He also specifically denies that he was responsible for the mother losing her Legal Aid funding, deposing to the simple fact that the Legal Aid Office did ask him whether the mother was complying with the existing parenting orders and that he told them that she was not.
He denies having in any way deliberately mislead the Court at any time, although he concedes that he must have missed or overlooked the reference in the Magellan Report to the fact that the children were receiving counselling at the D Church, thus explaining his later evidence that he was not aware of that. He also states that he is now aware that the children have not yet been seen by Mr E but that he was not aware of that at the time, believing then that they were. He says he has been actively pursuing that issue with Mr E and the Police Service since without any “real success”.
As to the briefing of Ms F, the family report writer, the ICL deposes to having obtained two reports from Ms F, one in mid-2011 and one in August this year. He says he briefed Ms F with a “significant amount of material” and he exhibits to his affidavit copies of the letters he sent to Ms F listing all of the material he briefed her with prior to the preparation of each of her reports. Exhibit E to his affidavit included in the list of Court Documents he provided to Ms F the affidavit of the mother filed 10 March 2011 that the mother asserts Mr Grant never provided to Ms F.
The father’s position
Relevantly, the father denies that the ICL has ever given him any legal advice and denies that he ever asked Child Safety Services to invite the ICL to his Family Group Meeting, saying he knows nothing about this allegation.
The applicable principles
The principles applicable to the manner in which an ICL is to discharge her or his role in Family Law Act parenting proceedings have been extensively considered. So too, have the principles applicable to the question of determining an application to remove and replace an ICL from that role.[1]
[1]See the discussion by Murphy J of the authorities and the principles in Knibbs and Knibbs [2009] FamCA 840 at [33] – [61] and also the discussion by O’Reilly J on similar matters in Kingley & Arndale (No 2) (2010) 255 FLR 326, 322-334 at [26] –[35] and Bondai & Bretton (No 2) [2010] FamCA 1237 at [43]
The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.
I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.
In my view, the words of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 are apposite.[2] His Honour said:
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] 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 [ICL] 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 [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.
[2]These words were also referred to by Murphy J and O’Reilly J in the passages just referred to.
His Honour also went on to finish that passage with the following words:
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.
Murphy J in Knibbs said that he did not necessarily agree with that last expression of opinion. His Honour did not elaborate further in that respect. O’Reilly J in Bondai and Bretton (No 2) also expressed disagreement with that opinion. In particular though, her Honour went on to express the view that not only in cases of actual impartiality of an ICL but also in cases of perceived or apprehended impartiality of an ICL should consideration be given to discharging that ICL. Her Honour, comparing the principles that should apply to those principles as apply to the consideration of the question of whether a judge has demonstrated actual or apprehended bias, went on to say:
It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial.
With respect to her Honour, I am not prepared to say that I agree that apprehended impartiality, objectively assessed, is sufficient to give rise to a discharge of an ICL. I say this because, as Murphy J pointed out in Knibbs at [43]-[45], there will be times when the ICL, acting completely within the bounds of his or her duty and in accordance with their independent, professional opinion, as to what is in the best interests of the children in the case, will say and do things that might very well have the appearance of partiality even, perhaps, to the objective bystander. The ICL’s duty and obligations do not require, again as Murphy J said in Knibbs at [49], the ICL to act as merely “a benign or ambivalent mouthpiece for competing evidence.” It is not uncommon for the ICL to make or cause submissions to be made that are completely at odds with the position adopted by one parent and completely consistent with the position adopted by the other parent. The objective bystander might look to that and reasonably consider that the ICL appears to be partial towards one party’s position rather than the other. That does not mean though that the ICL should, on the application of an unhappy parent with whom the ICL is at odds, be discharged or removed from the case.
It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal.
Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case.
Finally, before I turn to consideration of the evidence in this case in the light of these principles, I also acknowledge that I accept as correct the submission made by counsel for the ICL that where there are disputes, apparent on the affidavit evidence, about relevant factual matters, the Court is constrained by the limited nature of the interim proceedings and cannot, at this point, make findings of fact in respect of these disputed matters. This constraint brings with it the natural consequence that factual matters asserted by the applicant that are denied or contradicted by the other evidence have to be treated effectively as unsubstantiated allegations. Of course, that makes the case harder for the applicant but that fact, in itself, is consistent with the principle that a party should not easily be able to have an ICL removed from a case.
The application of the principles to the facts in this case
The ICL himself concedes that he has from time to time spoken to the father and to the paternal grandmother in the case. He even concedes that he may have been seen laughing with them at some time, as someone may have said something funny at that time. Allegations that he gave legal advice to them are denied by the ICL and the father, so I cannot make a finding that he did simply because the mother said she, and other persons, overheard the giving of such advice. Where the father acts for himself, as does the mother now, the ICL can hardly be criticised for speaking to the father, or to his witnesses, such as his mother who indeed was nominated by both the mother and the father to be the supervisor of the children’s time spent with the father last year. Whilst clearly the nature of the proceedings in which the ICL finds himself a party is very serious, that he might be seen, when talking to the father outside the court room, to laugh at something that was said that he thought was funny does not, in itself cause me concern. I accept, as sometimes happens in Court, that a little levity can add some welcome relief to people who are otherwise immersed in serious matters. Without more, such as evidence that the laughter was had at the mother’s expense, I do not consider that evidence that the ICL was seen laughing with the father outside court justifies his removal from the case.
The evidence that the paternal grandmother handed the ICL a note during proceedings before Baumann FM, after which the ICL made the application for a restraining order against the mother is not disputed by the ICL or the father, although the ICL has no recollection of that event. However, the ICL’s evidence is that he intended to make the application in any event and that he had advised the father and the mother’s legal representative of his intentions in advance. There is no reason not to accept that evidence. None of that evidence causes me any concern that the ICL might have acted unprofessionally or in breach of his duty in the matter.
Although the mother asserts that the ICL speaks to her in an “accusing and arrogant manner” that makes her feel “bullied, belittled and discriminated against”, the ICL denies that he does. I cannot determine that he does and the fact that the mother says she feels that way in any event is not sufficient to justify discharging the ICL. How a parent subjectively feels about the things an ICL says to her and the way in which the ICL says them cannot, of itself, be determinative of such an application. If it was, these applications would multiply rapidly.
As to the mother’s assertion that the ICL wanted to attend a Family Group Meeting of the father’s at Child Safety Services, I simply do not without more, accept that such an assertion, of itself proves that Mr Grant has lost the requisite objectivity and professionalism required of him to continue to act as ICL in this case.
I accept Mr Grant’s evidence as to the circumstances in which he was asked questions by Legal Aid Queensland that might have led to the suspension of the mother’s legal aid funding and do not regard that as evidencing any partiality on his behalf.
I accept that Mr Grant’s evidence establishes, completely contrary to what the mother asserted, that he did brief Ms F with the mother’s March 2011 affidavit. I am satisfied that he briefed Ms F with a substantial quantity of documents, including relevant affidavits of the mother and that his interaction with Ms F does not demonstrate unprofessional or partial behaviour on his part.
I do not accept the mother’s submissions that the ICL has not put evidence before the Court that he should have. I do not even understand what evidence the mother points to as being in existence that Mr Grant has not put before the Court. The argument is unsustainable in such circumstances.
I do not find that Mr Grant has misled this Court in any way that demonstrates culpable unprofessional conduct on his part. I am not satisfied, on the evidence before me, that his assertion that the Queensland Police Service’s investigation into the alleged sexual abuse of the children is closed is not actually correct. The mother asserts that it is not and points to a letter she has recently received from the Police Service as evidence that it is not. That letter (Annexure 7 to the mother’s affidavit filed 5 October 2012) is a letter to a third person advising that Detective Senior Constable C of the G Town Child Protection and Investigation Unit “remains actively involved in the matter”. It does not prove that the police are still conducting investigations into the matter or that when Mr Grant informed the Court that he understood the Police investigation to be closed that it was not or that he did not reasonably believe it to be so. As to the other points on which the mother asserts that Mr Grant misled the Court, I am satisfied, considering Mr Grant’s explanation of those matters, that he has not acted contrary to his duty of professionalism and independence.
Individually considered, each of the items I have referred to has not persuaded me that I should discharge the ICL in this case. Stepping back and considering all of the matters raised by the mother again, this time collectively, does not cause me to take any different a view of the matter.
There are some other matters which I also consider relevant to the decision to dismiss the mother’s application. The matter is currently listed for trial over three days in March next year, only just over four months from now. Mr Grant has been ICL in the matter since shortly after the order appointing an ICL in March last year. He knows the matter well and has done a lot of work in preparing the matter for trial and dealing with various matters along the way. It is not in the interests of the children nor in the wider public interest for Mr Grant to be removed from the proceedings now, after having done so much work in it, when the trial is rapidly approaching.
In all the circumstances of this matter I am satisfied that the application of the mother for the ICL to be removed and replaced should be dismissed and I order accordingly.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 31 October 2012.
Associate:
Date: 31 October 2012.
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