Earles and Highsmith (No 3) - [2012] FamCA 948

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH (NO 3)

[2012] FamCA 948

FAMILY COURT – PRACTICE AND PROCEDURE – Application to discharge the Independent Children’s Lawyer from further participation in the proceedings on the grounds of actual bias or apprehended bias – Whether an exchange between the Applicant’s counsel and the Independent Children’s Lawyer outside the courtroom amounted to actual bias, or the lesser standard of apprehended bias as per Ebner & Official Trustee in Bankruptcy – Applicant’s case not made out – Application dismissed

Family Law Act 1975 (Cth)

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Knibbs & Knibbs [2009] FamCA 840
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
T and L (2000) FLC 93-056; 27 Fam LR 40; [2000] FamCA 351

APPLICANT:

Ms Earles

RESPONDENT:

Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER:

MS Soliman

FILE NUMBER:

PAC

5328

2008

DATE DELIVERED:

13 November 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

13 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr de Robillard

SOLICITOR FOR THE APPLICANT:

Mother in person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Ms Anderson, Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms De Vere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Soliman, Legal Aid NSW, Parramatta Family Law

Orders

That the notice for publication, amended this day, be forwarded to the Publication’s Officer of this Court (Ms X) within forty-eight (48) hours of this date.
That the costs of the parties that is the mother and the father, with respect to the publications notice, be reserved.
That I dismiss the mother’s application in a case filed:
(a)       16 October 2012;
(b)       13 November 2012; and
(c)       13 November 2012.
That leave is granted to the Independent Children’s Lawyer to make an application for costs.
That within fourteen (14) days the mother and/or her legal representative shall write to the Independent Children’s Lawyer requesting further information and particulars with respect to the Independent Children’s Lawyer’s application for costs.
That upon the Independent Children’s Lawyer furnishing such material the matter may be relisted before me upon seven (7) days notice by arrangement with my Associate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith 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 PARRAMATTA

FILE NUMBER: PAC 5328 of 2008

Ms Earles

Applicant

And

Mr Highsmith

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The application I am presently required to determine is that of the mother to be found in her Application in a Case e-filed on 16 October 2012. In that document, the mother sought that the Independent Children’s Lawyer, namely, Ms Christine Soliman, be removed from further participation in this matter on the grounds of bias or apprehended bias. Ms Soliman was, of course, the Independent Children’s Lawyer duly appointed and as such, having conduct of this matter during the course of its somewhat prolonged history.
The mother relied upon her own affidavit sworn 16 October 2012 and filed 16 October 2012, and an affidavit of Ms P sworn 16 October 2012 and filed 16 October 2012. The Independent Children’s Lawyer filed no material.
As I understand it, the complaint against Ms Soliman relates to something that occurred outside this courtroom on 12 October 2012. On that day, there was before the Court an application for a stay by the mother in respect of Final Orders that I had made on 8 October 2012, in which I determined that the subject child should change residence and commence to reside with the father. As part of my Orders of 8 October 2012, provision was made for the father to collect the child from her preschool that same day. When the father arrived at the preschool, the child was not present. The matter subsequently came back before me that day (that is 8 October 2012) and I made a Recovery Order.
It appears that on 12 October 2012, the mother, Mr de Robillard and at least one other person, who I understood to be Ms P, attended at this Court. It is the mother’s case that an exchange occurred between Mr de Robillard and Ms Soliman outside the courtroom. I am not able to say precisely what happened. It seems to me that whatever happened, if it is taken seriously as a matter of affront and alarm, is more probably a matter for the governing and disciplinary bodies of Mr de Robillard and Ms Soliman rather than a matter forming the basis of an application for Ms Soliman to be discharged from being the Independent Children’s Lawyer in these proceedings.
I have handed to counsel for the mother a number of authorities, particularly the most recent authority that I could find of Knibbs & Knibbs[1], the authority of Lloyd and Lloyd and Child Representative[2] and a further authority of T and L[3]. The question is, putting the case of Mr de Robillard on behalf of the mother at its highest, does that which occurred outside this courtroom, that is the exchange between Mr de Robillard and Ms Solimon, amount to bias that would require me to discharge Ms Soliman?
[1] [2009] FamCA 840
[2] (2000) FLC 93-045
[3] (2000) FLC 93-056; 27 Fam LR 40; [2000] FamCA 351
Knibbs (supra) is a Judgment by His Honour Murphy J, which deals with the established authorities on this point of law. His Honour says this at paragraph 40 of the Judgment:-
With the greatest respect to His Honour...
(referring to the earlier Judgment of Lloyd (supra) of Holden CJ of the Family Court of Western Australia)
...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...
Murphy J adopts other matters referred to by Holden CJ in Lloyd (supra). His Honour mentions this passage from Lloyd (supra) at paragraph 39:-
A 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 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 was said that it is clearly the duty of an Independent Children’s Lawyer to argue firmly and fearlessly for what they contend ought to be the results achieved by the litigation, that is, what would be in the child or children’s best interests.
There is no attack that I can see that is mounted against Ms Soliman, or those who she had briefed in this matter, in respect of their conduct during the substantive hearing. Nothing is put to me that would indicate that anything that was done, or alternatively, not done, would have had an effect on these proceedings. Nothing has been put to me that would raise the perception that in the course of the proceedings up to delivery of my substantive Judgment, the Independent Children’s Lawyer had not acted properly, correctly and fearlessly. I am aware that the mother, in her affidavit, asserts that she sought that certain things be done by the Independent Children’s Lawyer. She says they were not done. As I understand it, those are things that were done or not done post delivery of my substantive Judgment.
Accordingly, that which is complained of is something that occurred outside this courtroom on 12 October 2012 as between two practitioners. It is not, in my view, open to the mother to assert, putting the case that she mounts at its highest, that there was incompetent behaviour in a professional sense by the Independent Children’s Lawyer. Assuming that what the mother asserts was said was in fact said, two practitioners were both speaking in a manner which did, on the basis of what the mother asserts, neither of them a great deal of credit. Each asked of the other “Who are you?” Neither, it appears to be asserted, gave a courteous answer to the other. To my mind, this resembles something done by children in a playground.
I am not able to be convinced, even applying the lesser test that Murphy J seems to say he would accept of apprehended rather than actual bias, that any fair-minded person sitting outside the courtroom, apart from being otherwise appalled that practitioners would involve themselves in such a slanging match, would be of the view that it would affect either of them in the outcome of their duty as members of the legal profession. That is, of course, independent of the duty imposed upon an Independent Children’s Lawyer to act, as I have said, fearlessly in pursuit of that which he or she believes is the appropriate outcome of the proceedings for the child, rather than what either party would wish to achieve.
It is said with some force in T & L (supra) at paragraph 55 that:-
Merely because a litigant disagrees with a position taken by an independent children’s lawyer, is by no means an appropriate and proper reason for that Independent children’s lawyer to be discharged.
In the circumstances of this case, I am not satisfied, putting the case of the mother at its highest, that which occurred outside the courtroom on 12 October 2012 amounted to bias in any form.
I am satisfied that to apply the test as to apprehended bias set out in Ebner & Official Trustee in Bankruptcy[4] would not produce the result where an independent, well-informed member of the public would form the view, because of what occurred outside the courtroom that the Independent Children’s Lawyer was unable to bring to mind her proper professional expertise to achieve the result, without favouring one party over the over, that was, in all the circumstances, best for the children.
[4] (2000) 205 CLR 337
It was put to me that there might be some suggestion that the Independent Children’s Lawyer should perhaps not have been at Court on that day. The application was one by the mother for a stay. It will be remembered that my Orders of 8 October 2012 kept the Independent Children’s Lawyer in place for six months from that date with the main purpose being that she be in a position to explain the Orders that I had made to the child.
For reasons that I will not expand upon here other than saying that the child has been missing since my substantive Judgment was delivered on 8 October 2012, that has been made impossible.
In all the circumstances of this case, I am not satisfied that the mother has made out a case that the Independent Children’s Lawyer, in the person of Ms Christine Soliman, should be discharged.
Accordingly, I dismiss the mother’s Application in a Case e-filed 16 October 2012.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 13 November 2012.

Legal Associate:

Date: 19 November 2012