Dickens & Dickens
[2016] FamCA 115
•1 March 2016
FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS | [2016] FamCA 115 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification – Where no apprehended bias established – Where there is no connection between the complaint and the matter to be determined – Application for disqualification dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Where the father asserts that the substantive proceedings should be adjourned until after finalisation of appeals that have been filed in this matter – Where it is found to be in the best interests of the children for the matter to proceed. FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of order appointing the Independent Children’s Lawyer – Where the father submits the Independent Children's Lawyer is not impartial or independent and is an advocate for the mother – Where there is no evidence the Independent Children's Lawyer has acted contrary to the children’s best interests – Where the father has not demonstrated that the Independent Children's Lawyer is incompetent or lacks professional objectivity – Where there is no basis for discharging the Independent Children's Lawyer on the basis of actual or perceived bias – Father’s application is dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer seeks an updated Chapter 15 expert report be prepared – Where the father objects to the preparation of that report by the expert previously involved in the matter – Where the father asserts that expert is not impartial and has failed to undertake his duties to the court under part 15.5 of the Family Law Rules – Where the court is satisfied that expert should prepare the report and orders are made in accordance with the Independent Children's Lawyer’s application. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Winter and French [2013] FamCAFC 75 |
| APPLICANT: | Mr Dickens |
| RESPONDENT: | Ms Dickens |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Moylan |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| DATE DELIVERED: | 1 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 20 May 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
Orders
Orders made 20 May 2015
Order 6 (an application by the father that I disqualify myself) as sought in the father’s Application in a Case filed 8 May 2015 be dismissed. I reserve my reasons for this order.
Orders 1, 2 and 3 (an application for an adjournment/stay of today’s proceedings) as sought in the father’s Application in a Case filed 8 May 2015 be dismissed. I reserve my reasons for this order.
By consent, leave is granted for the father to make an oral application for Dr AA to be appointed as the single expert in these proceedings.
I note that the father no longer presses his application for Registrar Campbell to be removed as the Docket Registrar and I accordingly dismiss order 3 as sought in the father’s Application in a Case filed 27 November 2014 and I otherwise dismiss the Application in a Case filed by the father on 27 November 2014.
By consent, the words “out of time” be deleted from notation 6 of the orders made 22 April 2015.
In respect of the application by the Independent Children's Lawyer and the mother for the appointment of Dr U to provide an further report in these proceedings and the father’s alternate proposal for the appointment of Dr AA, I reserve my decision.
By consent, leave is given to the father to make an oral application that the order appointing the current Independent Children's Lawyer be discharged. I reserve my decision in respect of this application.
Orders
Dr U is requested to prepare a report pursuant to Chapter 15 Family Law Rules 2004 (Cth) in relation to the competing parenting proposals in respect of C born … and B born … 2001 (‘the children”) and in particular to:
1.1.Update his opinion in respect of the mental status of each of the parents; and
1.2.Deal with any matter he considers relevant pursuant to s 60CC(2) and (3) of the Family Law Act1975 (Cth).
The Independent Children's Lawyer is to provide Dr U with a brief of all relevant documents.
The father’s application to discharge the order appointing the Independent Children's Lawyer is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens 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 SYDNEY |
FILE NUMBER: SYC 739 of 2010
| Mr Dickens |
Applicant
And
| Ms Dickens |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parenting proceedings between the parties have been ongoing for many years. In 2011 Federal Magistrate Sexton (as her Honour then was) made final parenting orders in respect of the children of the marriage. Since that time there have been several applications filed and resultant court appearances. The children live with the mother and there has been contention surrounding the time they spend with the father.
These reasons deal with the following:
2.1.The father’s disqualification application;
2.2.The father’s application for an adjournment;
2.3.Competing applications relating to the appointment of a single expert; and
2.4.The father’s application for the removal of the Independent Children's Lawyer.
The application that I disqualify myself and for adjournment of the final parenting proceedings are contained in an Application in a Case filed by the father on 8 May 2015. The father attached to that application “submissions” and filed an affidavit on 8 May 2015. The father indicated that he wanted to rely upon the whole of the submissions and the whole of his affidavit in relation to each of the applications made and was not prepared to delineate which paragraphs related to which parts of his application.
In relation to the adjournment application, the father relies upon [2] of his affidavit filed 8 May 2015, which annexes an email written by him to my associate which makes a submission as to why the matter should be adjourned. The father also relies on [2], [3], [6] – [11], [13] and [14] of the written submissions which are annexed to his application filed 8 May 2015.
The father seeks to exclude Dr U from doing a report for the final hearing. In relation to the application for the appointment of a single expert, the father identified that he relied upon [217] to [222] of an affidavit filed 10 March 2014. The father seeks to rely upon parts of a very lengthy (3 volume) affidavit filed 10 March 2014. In addition, I had the following relevant documents:
5.1.Dr U’s report dated 10 August 2011 (Exhibit 45);
5.2.Orders and Reasons for Judgment of Sexton FM (as she then was) dated 20 December 2011 (Exhibit 46); and
5.3.Transcript of the cross examination of Dr U on 15 August 2011 in the proceedings before Sexton FM (Exhibit 47).
The father’s Application in a Case filed 27 November 2014 sought an order that the orders made by Registrar Campbell on 9 October 2014 be discharged and that Registrar Campbell be dismissed from the case. During the hearing, the father said he no longer wished to have the docket registrar removed.
An order that the Registrar made on 9 October 2014, dismissed the father’s application to discharge the appointment of the Independent Children's Lawyer. The father sought to pursue an application for an order discharging the appointment of the Independent Children's Lawyer. To put the matter procedurally beyond doubt, I granted the father leave by consent to make an oral application for the discharge of the Independent Children's Lawyer.
The father identified the evidence upon which he sought to rely in relation to the application for discharge of the Independent Children's Lawyer. The father was given leave to rely upon the affidavit that he swore on 1 October 2014 and upon Exhibit 48 – 55 and 58 which were tendered by him during the hearing.
THE FATHER’S DISQUALIFICATION APPLICATION
The father made an application that I disqualify myself from hearing these proceedings (paragraph 6 of the orders sought in the father’s Application in a Case filed 8 May 2015). I refused that application and reserved my reasons. These are those reasons.
The test relating to disqualification on the basis of perceived bias is articulated in the High Court case of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The High Court made the following remarks:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [emphasis added]. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
…Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability.
Further explanation was provided by the High Court in Johnson v Johnson (2000) 201 CLR 488.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
The High Court in Re J.R.L; Ex parte C.J.L (1986) 161 CLR 342 (per Mason J) made the following comments at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw.
The issue of disqualification on the basis of perceived bias must be taken seriously to promote its primary principle, that not only should justice be done, but it should be seen to be done. There is however another side to the policy considerations – litigants should not be encouraged to believe that by asserting bias they may essentially choose their Judge, and attempt to have their case re-tried more favourably. In Ebner v Official Trustee in Bankruptcy, the court said:
…Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
On 22 April 2015 I made the following notations and orders:
3. [Mr D] seeks to be removed as a party in the proceedings. I note the mother intends to make an application that I discharge the undertaking that he has given to the court. I note the father opposes that application. The father also says that that matter should not be revisited as it was an undertaking given on a final basis and I have yet to inquire as to whether or not that is so but whether or not that is so it does not affect the position that there is no need for [Mr D] to continue to be a party to the proceedings. He can be a witness in the mother’s case on the understanding the mother is making an application for [Mr D] to be relieved of the undertaking which he has given.
In his affidavit filed 8 May 2015, the father at [3] complains that on 22 April 2015 I have noted that the mother intends to make an application that her partner Mr D be relieved of an undertaking which he has given to the court. The father further refers to the fact that on 22 April 2015 there was an exchange between the court and the father about what he may or may not be able to re-agitate given previous decisions that had been made in the case. The father asserted that my failure to prevent the mother from filing an application that her partner be discharged from an undertaking previously given, led to an inconsistency in approach which provided the father with a ground to assert perceived bias. The father asserts that in me doing this there has been an “error of law, fact and judicial discretion”. It should be observed that the allowing of the mother to file such an application does not mean that the father is precluded from arguing that any such application should be summarily dismissed or dismissed as a preliminary matter having regard to the principles in Rice v Asplund (1979) FLC 90-725. In any event, if in fact any error of law, fact or the exercise of judicial discretion has taken place, then that is a matter for an appellate court to consider. Simply because a trial judge has made a determination, which one party does not accept as fair or just, does not found the basis in law for a successful application for disqualification. At [5] of the affidavit filed 8 May 2015, the father says, “There are further such examples contained in this affidavit and in written submissions I filed with my Application in a Case”. The father did not identify any further examples in the affidavit and I am unable to do so. At [26] to [29] of the father’s submissions dated 8 May 2015, the father refers to the permission of the filing of an application to re-challenge the undertaking given by the mother’s partner as offending “basic and widely adopted principles, due and proper process and procedural fairness”. For reasons already given, I do not accept that categorisation. The father makes submissions in the most general of terms about how he has been treated as a self-represented litigant in other courts on other occasions and refers to exchanges and decisions during the hearing held on 22 April 2015 without further identifying anything other than his stated concern in relation to the notation I made about the mother’s intention to make an application that her partner be relieved of an undertaking. The father makes a general submission that “judicial officers allow themselves to be unduly influenced and ring-fenced by the ICLs and by the legal representatives of the parties in lieu of familiarising themselves with the evidence”. The father has not provided any evidence to substantiate that submission in the context of this disqualification application.
A fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of such an application (if instituted) or any other dispute between the parties.
For these reasons, I dismissed the father’s application that I disqualify myself.
THE FATHER’S APPLICATION FOR AN ADJOURNMENT
The father, by way of orders 1, 2 and 3 of his Application in a Case filed 8 May 2015, sought that all matters scheduled to be heard by the court on 20 May 2015 (as set out above) either be adjourned or stayed. I refused that application and reserved my reasons. These are those reasons.
In seeking an adjournment (or in his words a “stay”) of all outstanding applications, the father referred to the fact he had two extant appeals to the Full Court and two special leave applications to the High Court in relation to various interlocutory rulings that have been made in these proceedings by other judges of this court. Both the mother and the Independent Children's Lawyer argued that it was in the best interests of the children in this case for there to be an exploration at a final hearing of any substantial issue raised by the father.
The father however, contends that the issues in dispute in the appeals and in the substantive proceedings are inseparable, and so the appeals must be finalised before substantive proceedings continue. He submits that to do otherwise would “subvert and circumvent the appeal process and would offend established legal principles and due and proper process”. The father refers to Rule 16.03 of the Family Law Rules 2004 (Cth) (“the Rules”), s 69ZN(5) and s 70NFH of the Family Law Act 1975 (Cth) (“the Act”) and Winter and French [2013] FamCAFC 75.
The father asserted that s 69ZN(5) of the Act “makes it very clear that my allegations of child abuse should be dealt with before anything else happens”. I do not accept that submission as correctly representing the effect of that section of the Act. Section 70NFH of the Act deals with a circumstance where there is a prosecution of a person under s 70NFB in respect of a contravention where there is an independent prosecution in respect of an offence which is the subject of the same application for contravention. I am not able to discern what relevance that section has to the adjournment application. The father did not make any submissions as to the relevance of the Full Court case which he cites and I am unable to understand its relevance to the father’s application for an adjournment.
The father also says that the proceedings should be adjourned because preparing his appeals will be a complex process which will take time, effort and resources, particularly because he is a self-represented litigant. Also, the father says that proceeding with the substantive proceedings would cause him significant difficulty in complying with the appeal deadlines and to do so would cause him “unfair prejudice and injustice”.
In my view, there was no reason why it would not be appropriate and in the best interests of the children to continue to try to move the matter forward along the litigation pathway by ordering an expert report and determining the issue as to who should prepare it. The father did not provide a cogent reason why any of his appeals would need to be finalised before the matter could be fairly prepared for a final hearing.
Accordingly, I dismissed the father’s application for an adjournment.
ORDER FOR AN EXPERT REPORT
There is a need in this matter for an updated expert report. There seems to be possible continuing controversy in relation to the mental status of both the parties.
The father has indicated that he has significant concerns about a particular family consultant who has had some involvement with the family on a prior occasion doing a further report because of what he believes will be the enormous pressure that would be placed on her to protect those involved in this case who have not acted in the best interests of the children. During oral submissions the father attempted to say that what he meant was that this particular family consultant would be factual, fair and impartial if she was left to her own devices. The father however, did not withdraw the suggestion that he had significant concerns that enormous pressure would be placed upon her and that that would affect her fairness and impartiality.
I accept the position of the Independent Children's Lawyer and the lawyer for the mother that the children would be assisted by a report from a child and adult psychiatrist who has experience in the jurisdiction. The father seeks to exclude Dr U from preparing the expert report.
The father submits that the report should be done by Dr AA, who according to the father's material has indicated a charge of $8,000. The Independent Children’s Lawyer and the mother’s solicitor said they would agree to Dr AA if it was not for the price he charged. The father says he is not able to fund that cost. The mother's evidence is that $3,000 is all she can afford for the report. A fundamental problem with the father suggesting Dr AA as the appropriate single expert is that the father does not indicate how Dr AA’s professional fees would be paid and there was no basis upon which I could find he would be paid.
Dr U prepared a report in August 2011 which was relied on in the final hearing before Federal Magistrate Sexton. Both the Independent Children’s Lawyer and the mother’s solicitor say that Dr U should prepare the updated report because he has seen the parties before and will be able to make his assessment having regard to his historical knowledge of the parties and how they presented to him in 2011, with additional history which would now be given to him. Dr U also indicated that he is prepared to do the report for half the price that he would normally charge.
The father says that in 2011 there were numerous issues regarding Dr U, the circumstances of his appointment, not inspecting material available to him and ignoring abuse inflicted by Mr D on the children. It is the father’s case that Dr U has now vested interest to cover up any abuse inflicted by Mr D on the children and to be unfairly prejudicial towards the father and favour the mother.
It is the father’s case that the mother and her solicitor “obviously did not like [Dr BB]” (who was first ordered to do the initial report) and so they “shopped around to have an expert that would give them a favourable report”. The father agreed that the order appointing Dr U was an order to which he consented. It does not appear that the father raised any concerns during the 2011 proceedings as to the method by which Dr U came to be appointed as the single expert in the case and there is nothing in Her Honour’s reasons that refers to that being raised as an issue before her.
One of the father’s specific complaints was that Dr U failed to view a DVD which had apparently been produced under subpoena from the NSW Police. The circumstances of the production of that DVD are not clear to me. Dr U records in his report that he did view some of the subpoenaed material from the NSW Police. The father however, told me that he was the only one who viewed the DVD prior to the matter being heard on a final basis before Sexton FM. He said that the DVD was viewed in open court by Sexton FM, the representatives of the parties and the Independent Children's Lawyer and the parties themselves. No application was made once Dr U had indicated he had not seen the DVD for Dr U to view the DVD. The gravamen of the father’s complaint is that Dr U on the one hand in his report said that he had examined the material subpoenaed from the NSW Police but on the other, had not viewed the DVD. There was no indication as to how Dr U was provided the material under subpoena. I am unable to place any weight on the father’s concern when considering whether or not Dr U should be disqualified from providing an expert report.
Another specific complaint that the father makes against Dr U is that he reached a conclusion that the mother’s multiple sclerosis had been asymptomatic since 2004 (line 144 of Dr U’s 2011 report). The father refers to the fact that a 2007 medical record of the mother indicates that she was at that time taking Avonex (a medication for MS). The father submits that “[Dr U’s] response under cross examination indicates that he failed to consider the full range of material facts and objective evidence made available to him.” The father’s cross examination of Dr U in 2011 on this point commences at line 22 on page 26 of the transcript and continues to line 8 on page 27 of the transcript. A fair reading of what Dr U said in his oral evidence at that point of the transcript does not support the father’s submission.
The father asserted that Dr U had failed in his legal and professional obligation to make all necessary inquiries and had reached a different diagnosis in relation to the mother’s mental status than that suggested by two other psychiatrists who had earlier seen the mother. At page 68 of his affidavit of 10 March 2014, the father incorrectly alleges that during oral evidence Dr U said, in relation to a medical record from Dr CC, “I haven’t checked, obviously I haven’t seen any subpoenaed records”, implying that that was inconsistent with the assertion in Dr U’s report that he had viewed subpoenaed material from Dr CC and his confirmation in oral evidence that he had done so. The problem with the father’s submission is that he has incorrectly attributed the words “I haven’t checked, obviously I haven’t seen the subpoenaed records....” to Dr U when they were in fact words that were said by Sexton FM.
The father explored with Dr U why his diagnosis of the mother was different from that suggested by previous treating psychiatrists. Dr U gave a fulsome explanation which was referred to in Her Honour’s reasons. Her Honour accepted Dr U’s assessment of the mother’s mental status.
I also note in passing that in May 2013 the father filed a formal complaint with the Health Care Complaints Commission about Dr U. In August 2013 the father was provided with a determination by the Health Care Complaints Commission indicating that they had decided to take no further action in the matter because there was insufficient evidence to substantiate the allegations the father had made about Dr U of gross misconduct and lack of professional integrity.
The father submits that the Independent Children’s Lawyer, the mother and her solicitors, have been, and continue to strongly press for expert involvement for impermissible collateral purposes (to endorse the “lies and unqualified opinions of the police, the mother, her partner and the ICL, and to cover up the collusion between them and the police to entrap me, not for the benefit or welfare of C and B”.) The father asserts that given the history and circumstances, an updated report by Dr U paid solely for by the mother, would amount to a report commissioned by the mother for a partial and favourable opinion, and would be most unfairly and prejudicial towards the father and result in a significant miscarriage of justice. I am unable to accept these submissions.
I find that Dr U should prepare the report. The father did not indicate what instructions I should give Dr U in respect of preparing his report. I will make an order that Dr U provide a report which updates his opinion in respect of the mental status of the parties and which deals with any matters he considers relevant pursuant to s 60CC(2) and (3) of the Act and that the Independent Children's Lawyer is to provide him with all relevant documents.
DISCHARGE OF THE INDEPENDENT CHILDREN’S LAWYER
Introduction
In an Application in a Case dated 1 October 2014 that the father had attempted to file, he sought that the Independent Children's Lawyer, Mr Moylan, be dismissed. That application was supported by an affidavit that was sworn 1 October 2014. At the time he attempted to file this application, he also filed an affidavit sworn 1 October 2014.
The Registrar rejected that affidavit for filing on the basis that it contained material that was scandalous and he provided reasons for that determination on 9 October 2014.
The father, by consent, was given leave to make an oral application to discharge the order appointing the Independent Children's Lawyer. The father asked the court to discharge the Independent Children's Lawyer so that the case would proceed without any Independent Children's Lawyer being involved.
As indicated above, the father was given leave to rely upon the affidavit that he swore on 1 October 2014 and upon Exhibits 48 – 55 and 58 which were tendered during the hearing.
The Independent Children's Lawyer tendered Exhibits 56 and 57.
Almost at the end of the father’s submissions, he indicated that after he had made his submissions he intended to cross-examine the Independent Children's Lawyer. At the end of the father’s submissions in reply, the father again said he wanted “to cross-examination [sic] [the I.C.L.], put a few questions to him”. By that time, the father had presented the evidence that he had indicated he wished to rely upon and had made his own submissions, the mother and the Independent Children's Lawyer had made their submissions and the father had made submissions in reply. Apart from tendering two documents (Exhibits 56 and 57 [although the father had initially tendered Exhibit 57 and then indicated that that was a misunderstanding]). The Independent Children's Lawyer himself did not give any evidence. The father was given a number of opportunities during the course of the day to identify the evidence upon which he sought to rely. It was not appropriate at the conclusion of the hearing to entertain an application by the father to call the Independent Children's Lawyer as a witness in the father’s case, about matters in respect of which the father had given no notice.
Legal principles in respect of the removal of an Independent Children's Lawyer
In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:
11. Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children's interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
30(ii) The 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 that 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 to be given to removing a child representative.
In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[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.
Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children's Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
In T & L (2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:
The critical question...is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father ...
The test that I shall apply is that the father needs to establish that the Independent Children's Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children's Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41] – [61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children's Lawyer to argue firmly and fearlessly for what the Independent Children's Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children's Lawyer is in when fulfilling that role because it may be that the Independent Children's Lawyer is required to challenge the position of one or other of the parents.
It is usually the case that the Independent Children's Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children's Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children's Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time. In respect of interlocutory matters however, there is a duty on the Independent Children's Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children's Lawyer’s independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.
The father’s evidence
In his affidavit sworn 1 October 2014, the father refers to the fact that on 2 September 2014, the lawyer for the mother wrote a letter to the Independent Children's Lawyer saying that C was on a “blue card” and it was the lawyer for the mother’s understanding that that was a step before “further suspension”. The father claims that the mother’s lawyer subsequently indicated that the reference in a letter to C should have been a reference to B. The father’s complaint against the Independent Children's Lawyer is that the Independent Children's Lawyer did not make his own independent inquiries to ascertain the correctness of what the mother’s lawyer was saying prior to a hearing held on 16 September 2014. The father asserts that as a result of this misinformation, a court order was made for Mr Q to provide counselling for the boys for alleged behavioural problems. The father asserts that Mr Moylan’s support of counselling for the children was not to help them but rather to “legitimatise the faults and inappropriate opinion evidence and false statements contained in the COPS events, … and …, created by police officers, [DD] and [EE] during March 2014”. The COPS event … is an event record relating to the night upon which a recovery order to recover C from his father was executed by the police on 18 March 2014 (Exhibit 57). The father will seek to challenge various aspects of what Inspector EE has written in this event’s entry, including challenging her expertise to express the opinions that she has (see Exhibit 58). What Inspector EE wrote was as follows:
On Tuesday 18th of March 2014 the Family Court of Australia issued a Recovery Order to recover [C] from his father and return him to his mother. At 8.20pm police attended the father [Mr Dickens] residence at [FF Street, Suburb K] and executed the order. [C] was removed and conveyed to [Suburb K] Police Station where he was returned to his mother [Ms Dickens].
While police were attempting to execute the order [Mr Dickens] was obviously trying to upset his son and made the process very distressing for him. [Mr Dickens] stated, “[C] I am sorry but the court and the police are not here to help you they are trying to hurt you they don’t care about you. Don’t trust them”. This and other similar dramatic statements were said over and over and you could see that [C] was becoming more distressed. He was crying and shaking his head. Inspector [EE] said, “You are upsetting him we are not going to stand here and have you speak to him like that. As a parent you need to reassure him so that he is not scared and upset as much as possible under the circumstances”.
[Mr Dickens] was being very dramatic and speaking in a tone and manner that was designed to scare [C]. [Mr Dickens] sat [C] down and became very serious making him look at him in the eyes and said, “Remember what we talked about, stay strong don’t let them change your mind. They are not there 24 hours a day”. This statement was repeated over and over at least five times until police again had to interrupt and say OK we are going now. It sounded like he was threatening [C] not to go back on something he had said or done. As police were walking out the door [Mr Dickens] was saying, “Your mother doing this shows you that she doesn’t love you she doesn’t care about you”. To police he said, “Are your children safe at home”. After police left [Mr Dickens] rang [Suburb K] Police Statement and asked for the names of the police that had attended had [sic] if they had children.
Police are concerned that [C] is being exposed to psychological harm.
I am unable to conclude that the Independent Children's Lawyer’s support for therapy for the children is motivated by a desire to cover up faults, inappropriate opinion and false statements created by police officers.
The father asserts that the mother, her partner, the mother’s lawyer and the Independent Children's Lawyer have set out to “manufacture new favourable evidence based on tainted expert spin”. I am also unable to find that is so.
The father complains that the Independent Children's Lawyer attended the event at court on 16 September 2014 by telephone and that he was “difficult to hear and there was some rather strange noises in the background at his end”. That is of no moment.
The father annexes to his affidavit sworn 1 October 2014, a letter that he wrote to the Independent Children's Lawyer on 8 September 2014. In that letter, the father sets out in more detail his conviction that “by design or mistake the Independent Children's Lawyer got it wrong in the recommendations the Independent Children's Lawyer made to Sexton FM in 2011 and are continuing on the same trajectory. The father charges the Independent Children's Lawyer with acting in self-interest and not in the best interests of the children and that the Independent Children's Lawyer has been assisting the mother’s lawyer and has joined forces with the mother’s lawyer. In the letter, the father reiterates that it is his conviction that the police have been involved in the cover-up and the Independent Children's Lawyer has refused to acknowledge that that is so. The father catalogues in the letter examples of abusive behaviour by “dishonest police officers” and concludes by saying, “These are some of the police officers who are entrusted to protect our children and who can illegally influence, in a significant way, when young children get to see their fathers and I deem officers DD and EE to be part of this category”.
In the letter, the father goes on to make the following charges against the Independent Children's Lawyer:
59.1.Ignoring an email the father sent on 17 March 2014 in which the father informed the Independent Children's Lawyer that he was retaining C because of an alleged assault by the mother’s partner;
59.2.Delaying the issue of subpoenas so that the father would not be given any time to inspect material;
59.3.“Cherry-picking” evidence from material subpoenaed to the police for presentation to the court on 28 April 2014;
59.4.Ignoring evidence detrimental to the mother and to the mother’s partner;
59.5.Failing to keep an impartial and inquiring mind and failing to exercise independent forensic judgment;
59.6.Failing to put to the court information provided to the Independent Children's Lawyer by the children in conversations between the children and the Independent Children's Lawyer;
59.7.Advocating supervised time between the father and C in circumstances where the father asserts there are outstanding serious allegations of assault by the mother’s partner upon C;
59.8.Attempting to inappropriately read written submissions prepared by the father;
59.9.Failing to interrogate the mother in relation to her questioning of the children;
59.10.Questioning the father in respect of his willingness to return C to his mother.
The father concludes by alleging that the Independent Children's Lawyer’s acts and admissions indicated that the Independent Children's Lawyer was not acting in the best interests of the children; was not impartial and the Independent Children's Lawyer had deliberately failed to comply with his legal and professional requirements for improper purposes.
Material tendered by the father
As indicated, apart from the affidavit of 1 October 2014 to which I have already referred, the father relied upon a number of exhibits. It is simplest if I describe each Exhibit.
Exhibit 48
Exhibit 48 is the email the father sent to the mother on 17 March 2014 informing her of his decision not to return C to her care because C was scared because the mother’s partner kept hurting him. He informed the mother that C had a sore back and had seen a doctor that morning and had been given a medical certificate until Wednesday. He also informed the mother that he saw the police at midday that day.
Exhibits 49 and 50
Exhibit 49 are Optus records the father tenders to demonstrate he made telephone calls to the children’s schools after 2 September 2014 to check on each child’s performance at school.
Exhibit 50 is a copy of the letter written by the mother’s lawyer dated 2 September 2014 referred to above.
Exhibit 51
Exhibit 51 is a COPS event reference number … which is the initial COPS entry for 14 March 2014 which contains the entry “reason for no action – incident rejected. Fabrication”.
Exhibit 52
Exhibit 52 is a COPS entry of an attendance by the police at the mother’s household at 10pm on Sunday 5 February 2012. The father had given police information that he had concerns that his two children had been subjected to an assault by the mother’s partner. The police verified that the children seemed to be well cared for. The COPS entry indicated that the mother’s partner was agitated and confrontational; smelt strongly of intoxicating liquor and was well affected. The exhibit makes clear that both children were in bed asleep at the time the police arrived at the premises and that both children stated to the attending police officers when they were woken that they were fine and ok. Neither child presented with injuries. The exhibit also indicates that the father attended the police station on 27 February 2012 to follow up the investigation and told police at the time that “I’ll escalate this higher if nothing is done”; “I’ve already reported one incident where the Commissioner asked me if I wanted this police officer sacked, I told him that everyone makes mistakes”; “I’ll speak with [Mr GG], the superintendent, the Ombudsman, the Commissioner and the media if I have to”.
The father had produced to the police a tape recording of his conversation with C on the telephone. The police entry records that the police viewed the recording to be an attempt to have the child conspire with the father and encourage the child to say that he was not ok.
Exhibit 53
The father tendered pages 155 and 156 of Exhibit 53 which are documents produced under subpoena by Family and Community Services. Those pages are a contact record by a “notifier” whose name has been redacted. The father asserts that it should be inferred from the content of the contact record that the notifier was the Independent Children's Lawyer. Although there is no direct evidence as to who spoke to the Department, that is a reasonable inference, although there are other possibilities. The note is dated 31 March 2014. The Department are told that the police are currently investigating an alleged assault on C by the step-father that occurred about a week previously. The Department are informed about the circumstances of the execution of the recovery order and that the police were concerned the father may be saying inappropriate things to C and may be psychologically abusing him. The caller was concerned about what the father may do and that the father may react negatively if the investigation did not result in charges being laid against the step-father. The caller said that the father paid attention and cares for C more than B. The caller informed the Department that the matter would appear in court in about a month’s time and that in the meantime the court had suspended C’s time with his father.
Even if the Independent Children's Lawyer was the notifier, the statement about the police’s concerns in respect of the father’s behaviour is consistent with the COPS statement contained in Exhibit 56 (which is set out above and which the father energetically puts in issue).
The father also complains that, in the event that the notifier was the Independent Children's Lawyer, the Independent Children's Lawyer was providing information to the Department based on the account of the police without the Independent Children's Lawyer talking to the child. There is no evidence that the Independent Children's Lawyer had not spoken to the children and the Independent Children's Lawyer puts in issue that he had not met with the children in relation to the March incident.
The second contact record (page 155 of Exhibit 53) is a second contact record where the Department are informed of the allegations of assault that have been made and that C, in the presence of his father, had said that “His step-father severely kicked him in the back and assaulted him five times on his head with a rolled up sleeping bag and twice more by a ball. [C] said his mother was also assaulted in his presence by his step-father. There were no signs of injury or marks noted by [the notifier]”. It is less likely the Independent Children's Lawyer made this notification.
Exhibit 54
Exhibit 54 are further documents provided by the police. The father relies upon a document dated 9 May 2014 which appears to be a copy of a page from a diary upon which a police officer has written the following questions and answers:
Questions for [I.C.L.]: -
1) Who is the caregiver to the children? [Ms Dickens]
live w mum; no time w dad; only [C]/phone access [indecipherable]
2) has it previously been found in FLC that [Dickens] children fabricated stories &/or were coached by [Mr Dickens]? 1st set of proceedings – court accepted children were being coached & encouraged re: Foster Incident
3) what happened in FLC re: the allegations of the WWE match? No answer recorded
4) is [Dr L] prevented from treating [C]?
not sure? – will check
5) what court ordered / formal counselling has been offered to the boys & what has it revealed?
Various experts suggested by court; [Dr F] & [Mr Q – have been [indecipherable]
6) has the boys schools been contacted? No answer recorded
The father put some emphasis on the fact that the Independent Children's Lawyer, in response to questions from the police officer, said words that led to a police officer making a note that in the first set of proceedings, the court accepted that the children were being coached and encouraged. The father relies upon that to suggest that the Independent Children's Lawyer was providing inaccurate information to the police. I note however, that at [60] of Sexton FM’s 2011 reasons (exhibit 46), Her Honour concludes that “I also give substantial weight to my findings about the pressure the children are under from the father’s unrelenting attempts to have them adopt his highly critical opinion of the mother and [the mother’s partner]”.
Exhibit 55
This is an affidavit filed by the father on 19 March 2014 which sets out his version of the events of March 2014 that led to him retaining C and includes photographs that he took which the father asserts demonstrate the “lower back injury”.
The father’s oral submissions
The father in oral submissions made the following charges against the Independent Children's Lawyer:
75.1.The Independent Children's Lawyer in the first proceedings had ignored the mother’s breach of an order which required Professor BB to be the single expert and the fact that the mother had been expert shopping to secure Dr U as the single expert;
75.2.The Independent Children's Lawyer ignored or trivialised evidence regarding both the children being assaulted by the mother’s partner and the mother covering up the abuse;
75.3.The Independent Children's Lawyer trivialised the photos to C’ foot that were the subject of evidence in the first proceedings (2011);
75.4.The Independent Children's Lawyer and counsel instructed by the Independent Children's Lawyer behaved as an advocate for the mother;
75.5.The Independent Children's Lawyer ignored C’ crying in a telephone call to the father in February 2012;
75.6.The father complains that the Independent Children's Lawyer supported an application for an ex parte recovery order in circumstances where he had received the email from the father saying that the child was being retained because of an alleged injury to the child perpetrated by the mother’s partner. The father asserts the Independent Children's Lawyer failed in his duty to attempt to negotiate an outcome short of a court order which involved the police attending his home and taking C compulsorily;
75.7.The father alleges that the Independent Children's Lawyer did not place any weight on the fact that the mother had involved the children in counselling for over a year without informing the father that she had done so.
The Independent Children's Lawyer’s submissions
The Independent Children's Lawyer submitted that in relation to his interaction with the police, it was entirely usual and necessary for an Independent Children's Lawyer to speak to the police where there is an ongoing investigation about alleged abuse of a child in the mother’s household. The investigation was in relation to the mother’s partner arising out of the father’s allegations made in March 2014 and may have involved possible criminal charges against the mother’s partner. The police did not find sufficient evidence to charge the mother’s partner. The Independent Children's Lawyer said that one of the calls he made to the police was at the request of the presiding judicial officer who had requested an update in relation to where the police investigation was up to.
Conclusion
I find that it was appropriate for an Independent Children's Lawyer to interact with both the police and the Department in circumstances where both those agencies have an ongoing interest in knowing about what was happening in this court and the Independent Children's Lawyer had a vested interest in knowing what either of those authorities were doing in respect of the children from time to time.
The Independent Children's Lawyer also correctly says that notwithstanding any recommendation or position he may have taken from time to time at any court event, the ultimate decision for making orders (for example a recovery order or an order altering the arrangements in respect of a child’s time with a father) is a matter for the presiding judicial officer. I accept that based on information the Independent Children's Lawyer had at the time, that he made a bona fide assessment that supporting an application for a recovery order was appropriate in the circumstances. Although the father wishes to vigorously challenge the police assessment of his behaviour on the events of 18 March 2014 and the police records on an untested basis, the Independent Children's Lawyer was entitled to form a view that the father acted inappropriately on that occasion.
Making submissions and assertions, based upon what the father hopes to prove at a final hearing, provides no basis for the application. For example, the father’s assertions about his behaviour on 18 March 2014 cannot be accepted as uncontroversial, given what is in the written police document. There is nothing in what the father has adduced by way of uncontroversial evidence that would provide a basis for discharging the Independent Children's Lawyer on the basis of actual or perceived lack of impartiality. There is no evidence that the Independent Children's Lawyer has acted contrary to the children’s interests. The father has not demonstrated that the Independent Children's Lawyer is incompetent in a professional sense nor has demonstrated that the Independent Children's Lawyer lacked professional objectivity. No conflict of interest is established.
Accordingly, I dismiss the father’s application to discharge the order appointing the Independent Children's Lawyer.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 1 March 2016.
Associate:
Date: 1.2.16
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