FAULKNER & JACOBS
[2013] FamCAFC 83
•29 May 2013
FAMILY COURT OF AUSTRALIA
| FAULKNER & JACOBS | [2013] FamCAFC 83 |
| FAMILY LAW – APPEAL – leave to appeal against orders dismissing the appellant father’s application that an order appointing Ms D as the Independent Children’s Lawyer in the matter be discharged and another person appointed in her stead |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Faulkner |
| RESPONDENT: | Ms Jacobs |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| APPEAL NUMBER: | EA | 140 | of | 2012 |
| FILE NUMBER: | CAC | 130 | of | 2011 |
| DATE DELIVERED: | 29 May 2013 |
| PLACE DELIVERED: | Sydney |
| DATE HEARD: | 16 May 2013 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace & Watts JJ |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 September 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1015 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Keith Nicholson |
| SOLICITOR FOR THE APPELLANT: | Melanie Davison of Schetzer Constantinou Lawyers |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Alexandra Wearne |
Orders made 16 May 2013
The appellant’s application to adduce further evidence be dismissed.
The appellant’s application for leave to appeal be dismissed.
The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $1875.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Faulkner & Jacobs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 140 of 2012
File Number: CAC 130 of 2011
| Mr Faulkner |
Appellant
And
| Ms Jacobs |
Respondent
REASONS FOR JUDGMENT
By draft notice of appeal filed on 19 October 2012, Mr Faulkner (“the father”) appealed against orders made by Federal Magistrate Neville on 21 September 2012 dismissing the father’s application that the order appointing Ms D as the Independent Children’s Lawyer (“the ICL”) in the matter be discharged and another person appointed in her stead.
The ICL opposes the father being granted leave to appeal and, if leave be granted, resists the appeal and seeks to maintain the Federal Magistrate’s decision. The mother, Ms Jacobs, did not appear.
At the conclusion of the hearing, we refused to grant leave to appeal to the father. The father also applied for leave to adduce further evidence. That application was dismissed.
We indicated that we would deliver reasons for our decision at a later date. These are those reasons.
Background
The Federal Magistrate’s reasons give what appears to be an uncontroversial history of the proceedings. We will recount some of that history to give a context to the appeal.
The proceedings involve two children of the father and the mother, Y and X.
On 9 August 2011 the Federal Magistrate made orders, inter alia, appointing an ICL.
In November 2011 the court released a family consultant’s report in which the family consultant recorded (as the Federal Magistrate describes at [14]): “an allegation/disclosure of abuse against the Father by [Y], which she made to her Mother”. The family consultant’s report made various recommendations, including that the father could have supervised time with Y. Later in November, the mother and father agreed on orders in relation to the father’s time with X and for supervised time with Y.
With the consent of the parties, on 12 April 2012 the Federal Magistrate ordered the appointment of an expert, Dr L, pursuant to Chapter 15 of the Federal Magistrates Court Rules 2001. General “terms of reference” were provided to Dr L in relation to the matters to be considered.
Before Dr L’s report was released, the father underwent a “psycho-sexual assessment” by Dr K. Dr K’s report, dated 11 April 2012, was served on the ICL and the mother. The father’s solicitors wished Dr K’s report be provided to Dr L for his consideration. The ICL opposed that course, expressing the view that the report of Dr K addressed the same issues as those being considered by Dr L.
The ICL suggested that if the father wished to press his reliance on
Dr K’s report, including that it be considered by Dr L, the issue should be agitated before the court and an order sought. That course was never adopted by the father’s solicitors.
The father’s then-solicitors did not pursue the issue and the father was interviewed by Dr L on 23 April 2012 without Dr L having been provided with Dr K’s report.
The father changed solicitors in June 2012 and on 5 June those solicitors wrote to the ICL again seeking that Dr K’s report be sent to Dr L. When the ICL maintained her earlier view about the report of Dr K, the father’s solicitors indicated that they would make an urgent application to stay the release of the Family Report pending Dr L being provided with Dr K’s report. At about the same time, the father’s solicitors were notified that Dr L’s report was about to be released to the parties. An application seeking to stay the release of Dr L’s report was not brought.
It appears that Dr L’s report was favourable to the father.
We observe that, whatever significance the father attached to Dr K’s report, once Dr L’s report was released, the father did further press for Dr L to consider Dr K’s report.
On 2 July 2012 the father filed the application seeking the discharge of the ICL. The application was dismissed.
The Father’s Application
The father’s application relevantly sought:
2. THAT the Order appointing Legal Aid New South Wales and
[Ms D] as the Independent Children’s Lawyer in these proceedings be discharged.3. THAT the Independent Children’s Lawyer pay on an indemnity basis the Husband’s costs of and incidental to this Application.
4. THAT a new Independent Children’s Lawyer be appointed forthwith with respect to the proceedings.
In the affidavit in support of the application, the father referred to the abuse allegations made against him and observed that because of his concern over the allegations, he had had a “psycho-sexual assessment with [Dr K], Psychologist” (at [4]). The father said at [20] that he formed the view that the assessment by Dr K would assist in the matters then before the court.
The father, after in broad terms summarising the advice he had received about the nature of the role of the ICL, said:
30. In the circumstances of this case however, I am extremely concerned that in circumstances where I appropriately engaged
[Dr K] to provide an expert opinion on matters quite distinct and separate from matters addressed in the Family Report, the ICL took issue with my conduct and sought to constrain and limit what information [Dr L] had in the preparation of the Family Report. The ICL’s vigorous opposition to my conduct in this regard, causes me a real concern as to a bias that the ICL now has against me in these proceedings.After further outlining his “concerns” that the ICL had formed a bias against him, the father continues:
33.Whilst I accept, given the very positive recommendations
[Dr L] has made in his Family Report insofar as my ongoing time with [Y] is concerned, the ICL’s conduct in this regard is not of significant consequence, I have no confidence whatsoever that the ICL will in the future act in a matter that is independent or unbiased towards me. I have genuine concern that the attitude and approach that the ICL has taken towards me to date will continue throughout the proceedings unless and until the ICL is discharged and a new appointment in that regard is made.The father’s solicitor also filed an affidavit in the proceedings in which she made submissions on the law in relation to the question of bias (stating incorrectly, we observe, the law and the test to be applied) and expressed her personal view that the ICL:
6.… has conducted herself in such a manner as described … for there to be a reasonable apprehension of bias and prejudgment.
The Federal Magistrate’s Reasons
After outlining the evidence on which the application was made, the Federal Magistrate said, in reference to the father’s assertions in his affidavit:
41. In addition to this observation, which I put down to enthusiastic drafting and or slightly infelicitous terminology or expression,
[Mr Faulkner’s] apprehension that the ICL’s (alleged) bias “is likely to continue to influence the conduct of the proceedings” I also take to be a somewhat zealous overstatement. Parties, and the ICL, are essentially free to conduct matters before the Court as they deem appropriate. As for “the conduct of the proceedings”, that falls specifically within the sole province of the Court. Given the zealous tone and expression in the affidavits filed, and the sensitive nature of the application for all concerned, I do not take umbrage at any – doubtless unintended – slight on the conduct of the proceedings by the Court. To the degree that it is necessary or apposite, I simply wish to assure all parties, and the ICL, that the conduct of the proceedings will remain firmly in the grasp of the Court, uninfluenced by either party or the ICL, save in accordance with due process for all, compliance with the relevant provisions of relevant legislation, relevant case law, and relevant evidence properly put before the Court.The Federal Magistrate then turned to a consideration of what matters were causing the father and his solicitor “concern”. He observed at [44] that as the father made no specific reference to any part of s 68LA which sets out the obligations and duties of an ICL, the father’s concerns must be that the ICL : “either deliberately/knowingly or negligently,… (i) …will flout the statutory obligation to act impartially as specified in s.68LA(5), and or (ii) … will not act in the best interests of the children, as required by s.68L(2) [sic]”.
Turning to the affidavit of the father’s solicitor, the Federal Magistrate said:
50. Secondly, the latter part of Ms Davison’s accusation against the ICL – “in this case the ICL might have manipulated the proceedings to achieve a particular result so that her continued involvement in these proceedings is forever tainted” – could be taken as tantamount to an allegation of professional misconduct, and or a claim of actual bias. To allege that a senior lawyer (and an ICL in particular) (or any lawyer for that matter) has manipulated some part of proceedings is a most grave charge. The ICL’s Counsel made no such submission.
51. Thirdly, it is patently the case that there has been no determination by the Court of any relevant or substantive matter before it in the current proceedings. Parenting orders were made by consent; the appointment of [Dr L] was also made by consent. All other substantive issues have yet to be determined. In such circumstances, the claim of real or apparent manipulation of the proceedings by any party, or the ICL, has no foundation. It should not have been made.
(original emphasis; footnotes omitted)
The Federal Magistrate referred to the ICL’s letters in response to the solicitor’s request and complaints and said:
63.In the face of these three letters from the ICL, in which she suggested or advised that [Mr Faulkner] make an application in accordance with the prescribed procedures to have the Court determine the appropriate use of [Dr K’s] report, in my view, it borders on the astonishing how it could be contended that the ICL had either (a) usurped the function of the Court regarding the determination of the admissibility of expert evidence, or (b) that she had formed a particular and already biased view in relation to
[Mr Faulkner] and the conduct of his case.64.Moreover, in the responses by Ms Davison (and similarly in submissions) no distinction is made in relation to procedural issues, such as whether a report should or should not go to a court appointed expert, and matters of substance, such as parenting orders and issues concerning any alleged ‘risk.’ In my respectful view, the determination of whether a report should be provided to another expert is essentially a matter of procedure and process. Its evidentiary utility and issues of “weight” come later. Indeed, had the Rules of Court been followed at an early point in time and an application made as suggested by the ICL, the current application, I suggest, would have been entirely unnecessary.
The Federal Magistrate observed that there was a process by which the father could “achieve the end so earnestly sought” (at [78]), which was to make an application to the court. He further noted that the only application made by the father was for the discharge of the ICL.
The Federal Magistrate found that the father’s application was ill-founded and that the documentary evidence refuted his contentions.
He concluded:
86. On the facts here, and by reference only to the rules of court at this stage, there is no basis to argue that (i) the ICL has usurped the function of the Court, or (ii) the ICL is biased against the Father because she has determined any relevant matter either of evidence or parenting. She has done no such thing. She has expressed a view on the process of putting evidence before the Court-appointed expert, and recommended that an application be made to have the Court determine whether [Dr K’s] report should go to
[Dr L]. Nothing the ICL has done can sustain any claim of apprehended bias. …The Federal Magistrate concluded that proper procedures had not been followed for the use of Dr K’s report.
The Application to Adduce Further Evidence
On 9 May 2013 the father applied for leave to adduce further evidence on the appeal. The further evidence was identified as being a transcript of proceedings before the Federal Magistrate on 10 October 2012.
On page 3 of the application , the applicant father described the orders he sought:
1. THAT the Appellant be permitted to adduce further evidence as to submissions made by the Independent Children’s Lawyer to the (then) Federal Magistrates’ Court on 10 October 2012 to the effect that:
1.1the Affidavit of [Dr K] filed 18 April 2012 was inadmissible; and
1.2the Appellant, by seeking to proceed with an Interim Application filed 2 July 2012 regarding parenting issues, (rather than having the matter fixed for final hearing) was attempting to manipulate the Court process in his favour.
Counsel for the appellant was unable to indicate in what way either of the matters to which the proposed further evidence was directed were relevant to a determination of the appeal against the Federal Magistrate’s decision made on 21 September 2012. We could not discern any relevant issue to which the proposed evidence could properly relate and counsel for the appellant did not press the application.
Accordingly, the application to adduce further evidence was dismissed.
Leave to Appeal
The Federal Magistrate characterised the father’s allegations thus:
9. Summarily stated, the Father’s application is founded on two grounds which he says establish, to the requisite standard, that a reasonable bystander, properly informed, would apprehend that the ICL was biased against him. Those two grounds are: (i) the ICL’s refusal to forward to the Court-appointed expert ([Dr L]) an affidavit procured by the Father from another expert, which deals with, inter alia, matters pertaining to the allegation from the Mother that four year old [Y] may have been sexually abused by her Father and, therefore, is at some risk in spending time with him; and (ii) in a recent letter from the ICL to the Father’s solicitors, she refers to the Father’s Application (potentially) exposing him to an adverse costs order.
(footnotes omitted)
During argument on the appeal, counsel appearing for the appellant made two, significant concessions.
The first related to the first “ground” identified by the Federal Magistrate in paragraph 9 of his reasons.
Mr Nicholson accepted that the basis on which the father accused the ICL of bias was the ICL’s view that the report of Dr K was inadmissible and should not be given to Dr L. Next, he agreed that as no application had been made to the court seeking a direction or order in relation to the use of Dr K’s report, the ICL’s opinion as to the admissibility could in fact be correct. If it be correct, he agreed that the father could not sustain this allegation of bias. As there had been no determination of its correctness, counsel for the father conceded that this allegation (and the accompanying asserted error by the Federal Magistrate) could not be maintained.
Turning then to the second “ground” identified by the Federal Magistrate in paragraph 9, counsel for the appellant attempted to argue that the letter from the ICL was “intended to put pressure on the father”, the inference being that it was written with an improper, collateral motive.
The letter said:
We refer to your application to seek the discharge of the Independent Children's Lawyer which is before the Court on 24 July 2012.
Please be advised that we will be opposing that application and if we are successful, we will be seeking costs.
The text of the letter demonstrates the fatuous and, it could be suggested, ill-advised submission made as to intention of the author. Further, we observe that the letter was written to the solicitor for the father, not to the father himself.
Mr Nicholson, when asked how the submission about the writer’s motive could possibly be drawn from the letter, withdrew the submission. He conceded that the second basis on which the father asserted bias against the ICL must therefore fall away.
That being the case, there was no basis on which the appeal could succeed.
This is a matter in which the father requires leave to appeal. It was asserted in the father’s written argument that leave was not required because “the orders made finally determine the Husband’s rights in respect to his application”. This contention is palpably incorrect, and we reject it.
Given the concessions made by counsel for the appellant, it is clear that there is no merit in the appeal and leave will be refused. We add that even had those concessions not been made, the appeal as propounded was, in our view, wholly without merit, brought on a fatally-flawed premise, and we would otherwise have refused leave to appeal
Costs
The ICL sought costs on the appeal of $1,875. The appellant made no submission against the Full Court ordering the appellant to pay the respondent’s costs of the appeal and an order for costs was made.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Watts JJ) delivered on 29 May 2013.
Associate:
Date: 29 May 2013
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