Dean & Susskind

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.