Fielding & Mason
[2021] FamCA 52
•18 February 2021
FAMILY COURT OF AUSTRALIA
Fielding & Mason [2021] FamCA 52
File number(s): SYC 5298 of 2009 Judgment of: ALTOBELLI J Date of judgment: 18 February 2021 Catchwords: FAMILY LAW – PARENTING – Application to dismiss Independent Children’s Lawyer – Whether Independent Children’s Lawyer has acted independently – Whether Independent Children’s Lawyer has acted in the best interests of the children – Where no basis found for dismissal of the Independent Children’s Lawyer – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 34, 68L, 68LA Cases cited: Goode & Goode [2006] FamCA 1346
Howell & Carter (No. 2) [2017] FCCA 377
Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
T & L [2000] FamCA 351
Number of paragraphs: 32 Date of last submission/s: 18 December 2020 Date of hearing: 18 December 2020 Place: Sydney The Applicant: In person Solicitor Advocate for the Respondent: Mr Gad Solicitor for the Respondent: LN Legal Counsel for the Independent Children's Lawyer: Mr Moore Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5298 of 2009 BETWEEN: MS FIELDING
ApplicantAND: MR MASON
Respondent
AND INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The mother’s application for the Independent Children’s Lawyer to be discharged is dismissed.
2.The matter be listed for Mention on 15 March 2021 at 9:00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fielding & Mason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the Court’s decision in an application by the Applicant mother in this case to discharge the Independent Children’s Lawyer.
BACKGROUND
This case concerns two children, X, born in 2007, now aged 13 years, and his sister Y, born in 2008, now aged 12 years. Both children currently live with their father and, regrettably, do not spend time with their mother. Their mother is the Applicant, and their father is the Respondent. In short, there are competing applications by the parents for the children to live with them, and spend time with the other. The case is listed for final hearing for four days commencing on Monday, 12 April 2021. In order to properly understand the context of the mother’s application to discharge the Independent Children’s Lawyer, it is important to set out some history.
The father is 51 years old, and the mother is 47. Their cohabitation began in 2003, and ended in 2009. The children were very young when the parents separated.
The mother commenced proceedings in 2009, and this was finalised at a final hearing before myself, as a Federal Magistrate, and resulted in final orders being made on 16 December 2011 for the children to live with their father, and spend time with their mother. It is purely by coincidence that the current round of litigation relating to the children comes back before me in my current capacity. None of the parties, including the Independent Children’s Lawyer, expressed any concerns about my continuing to hear the matter, once again, to finality.
The impression created by the material before the Court is that there were difficulties implementing the 2011 orders and, it would seem, both parents experienced difficulties in their life in this period.
The current parenting proceedings were commenced by the mother in 2017 initially in the Federal Circuit Court, and then transferred to the Family Court in 2020.
In February 2018 the father moved with the children to Suburb B in the New South Wales D Region. In 2019 the mother moved to C Town, further north in the New South Wales D Region. The mother contends, and there is no reason to doubt, that C Town is 249 road kilometres from Suburb B and it would take two hours and 45 minutes to travel that distance by road.
The parental relationship has not been a good one and, indeed, seems to be deteriorating partly because of the current litigation. The parents do not communicate. They do not trust each other. The material before the Court creates the impression that both parents, but more so the father, denigrate the other parent in the presence of the children. Orders for the children to spend time with the mother had been made and varied but the fact remains that the mother has not been able to consistently spend time with the children. From her perspective this is because the father is not complying with the orders. Moreover, she is convinced that he is not encouraging the children’s relationship with her, and in fact is doing precisely the opposite. The father denies this, and contends that the children were initially reluctant, and now simply do not want to spend time with their mother based on experiences that, they tell their father, occurred in their mother’s care.
There is some objective evidence that provides some insight into the perspectives of both X and Y on the dispute between the parents about them. For example there is a Child Inclusive Conference Memorandum dated 22 February 2018 which came into evidence on 13 March 2018. It presents a sad picture of a dysfunctional family where there are mutual allegations of violence and abuse, as well as mutual denials.
The Department of Communities and Justice has been involved in the family for several years since 2016. There is some suggestion that both parents, perhaps more so the mother, frequently report matters to the Department, and even to the New South Wales Police, when they have concerns about the welfare of the children in the other’s care. Concerns are raised by each parent against the other about consumption of drugs and alcohol. Each denies that there is a problem in that regard. It is clear from the Child Inclusive Conference Memorandum that the children have been exposed to high-level parental conflict.
When the children were interviewed, whilst they reported their father’s denigration of their mother, both children also described their father in positive terms, and their mother in negative terms. Both children made reference to the mother’s consumption of alcohol. Both children indicated that they want to continue living with their father. X indicated that he was not keen to go back to spend time with his mother until trust could be rebuilt, and he felt safe with her. He told the family consultant that supervised contact was an option. Y also indicated that she wanted to continue living with her father, and recommence time with her mother, even though she was worried “that her mother will lock her up.”
The Independent Children’s Lawyer was appointed on 13 March 2008 pursuant to the provisions of section 68L of the Family Law Act 1975 (Cth) (“the Act”) which states: -
(1)This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration.
(2)If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child’s interests.
(3)However, if the proceedings arise under regulations made for the purposes of section 111B, the court:
(a) may order that the child’s interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and
(b) must specify those circumstances in making the order.
Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.
(4)A court may make an order for the independent representation of the child’s interests in the proceedings by a lawyer:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation concerned with the welfare of children; or
(iii) any other person.
(5)Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child’s interests to find out what the child’s views are on the matters to which the proceedings relate.
Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.
(6)Subsection (5) does not apply if complying with that subsection would be inappropriate because of:
(a) the child’s age or maturity; or
(b) some other special circumstance.
The role of the Independent Children’s Lawyer is set out in section 68LA of the Act, which states:
(2) The independent children’s lawyer must:
(a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children’s lawyer:
(a) is not the child’s legal representative; and
(b) is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court’s attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children’s lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children’s lawyer.
(7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
In regard to the impartiality that the Independent Children’s Lawyer must display, Murphy J importantly clarifies in Knibbs & Knibbs [2009] FamCA 840 at [49] that:
The obligation upon an ICL to act objectively and impartially should not be seen as meaning that he or she should act as a benign or ambivalent mouthpiece for competing evidence. Frequently, doing so can involve an abdication of their proper professional responsibilities.
Whilst section 68L does not, specifically, provide a power to discharge an Independent Children’s Lawyer, it seems a well-established power: Howell & Carter (No. 2) [2017] FCCA 377. Another likely source of power to make an order to discharge an Independent Children’s Lawyer is section 34 of the Act.
In Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 at 87,687, [11], Holden CJ identified the following as certain circumstances which would be relevant to consider in an application to remove a separate representative:
(a)If there is evidence that the separate representative had in any way acted contrary to the children’s interests;
(b)If there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(c)If it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(d)If to continue to act would involve a breach of fiduciary duty or conflict of interest.
In T & L [2000] FamCA 351, Chisholm J succinctly summarises at [54] the central consideration in determining whether to discharge an Independent Children’s Lawyer as follows:
At least in general, then, it seems that the critical question in considering an application to remove a child representative is whether the representative is likely to carry out his or her task properly. It is not necessary to attempt to state generally the circumstances that might cause the court to find that child representative is unlikely to do so. Given the issues in the present case, it is sufficient to say that it might well be appropriate to remove a child representative where the evidence showed that he or she had deliberately misled the court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child representative to “act in an independent and unfettered way in the best interests of the child”.
Chisholm J goes on to caution against removing a child representative in circumstances where the very nature of litigation necessitates that the child representative will advance submissions contrary to a party’s interests or to a party’s perception of the child’s interests, stating at [55]:
While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove a child representative merely because a litigant has taken the view that the child representative is acting contrary to that litigant’s position, or (from that litigant’s point of view) contrary to the child’s best interests. I agree with the child representative’s submission that it is important to avoid a situation in which the child representative “is a captive of the most vocal, litigious or dissatisfied parent or party”.
DISCUSSION
There is an interesting occurrence in the Family Report of Ms Campbell dated 28 February 2019 which throws some light on the present application. At paragraph 77, the Family Consultant writes: -
Ms Fielding said that she realised she was getting upset with people like the ICL and also Mr Mason’s case worker at FACS, “Because I thought that they should be able to do something about Mr Mason not complying with the orders but now I know that it doesn’t work like that.
In many ways, this summarises the present application by the Applicant mother. She is intensely frustrated that the multiple concerns raised on the evidence appear not to have been taken seriously by authority figures including the Court, the Department of Communities and Justice, the police, and the Independent Children’s Lawyer.
The mother’s frustration is understandable. This case needed the earliest possible hearing to resolve the complex issues in this case, after a thorough testing of the evidence led by both parents and the Independent Children’s Lawyer. The inability of either of the Family Law Courts to deal with this case in a timely fashion, because of limited resources, is the real explanation for the dilemma that this dysfunctional family finds itself in.
The mother’s concerns about the welfare of her children are legitimate. There is evidence of the father’s denigration of the mother in the presence of the children. There is evidence of the father’s drug use. There is also evidence of the children expressing firm views that they do not want to live with their mother, but both the Family Report and Child Inclusive Conference Memorandum raise serious issues about the weight that should be placed on these views, particularly if risk of harm is found in the father’s household. The mother’s frustration with what she has experienced to be the inaction of the Department of Communities and Justice is reflected, inferentially, in the Family Report itself.
With great respect to the mother, however, she fails to identify and understand the difficulties in her own case. The Court observes it is very difficult for a layperson representing themselves to see the problems in their own case. There appear to be unresolved issues about the mother’s consumption of alcohol. The children report this. It is not clear why, for example, the mother is unable to drive a motor vehicle. There are concerns about the nature of the mother’s relationship with her partner. There are unresolved issues about the mother’s conduct with the children and, in particular, whether she has been physically violent towards them.
An issue in the mother’s case is whether she has done enough to facilitate the children spending time with her in circumstances where she has removed herself from their proximity and created some of the formidable practical impediments to contact taking place. This should not detract from the need for a close examination of the father’s attitude towards his own responsibility to facilitate the children spending time with their mother. Whilst the mother’s concerns are understandable, and she can clearly see the weaknesses in the father’s case, it is possible that she cannot, as clearly, identify some of the problems in her own case.
In any event, the real issue in the present application is whether there is any basis to discharge the Independent Children’s Lawyer. In this regard, the Court has carefully considered the mother’s allegations, the father’s denials, the Independent Children’s Lawyer’s perspective, and conducted its own review of this litigation since the Independent Children’s Lawyer was appointed on 13 March 2008. As a result of this, the Court concludes as follows: -
(1)There is no evidence to suggest that the Independent Children’s Lawyer has acted otherwise than as totally independent.
(2)There is no evidence to suggest that the Independent Children’s Lawyer has not acted, at all times, in the best interests of X and Y.
(3)There is no basis for discharging the Independent Children’s Lawyer because, according to the mother and indeed an impression formed from the totality of the evidence, the father has only selectively complied with orders of the court, both as regards to the children spending time with their mother, and as regards to, for example, drug tests. The Independent Children’s Lawyer isn’t responsible when parents do not comply with orders. This is accentuated in circumstances where there are clear difficulties in both households and there are children old enough to express a view. The Independent Children’s Lawyer is not responsible when the father does not provide drug tests when ordered. Counsel representing the Independent Children’s Lawyer acknowledged what the solicitor for the father submitted to the Court— that is, that there were issues with the father complying with orders for drug tests in circumstances where he is Centrelink-dependent, suffers from a number of health issues that caused his isolation during the COVID-19 pandemic, and where the father maintained that his drug use is under control.
The mother contended that, somehow, the Independent Children’s Lawyer was personally responsible for documents produced by the Department of Communities and Justice, and its predecessor, having gone missing. The unfortunate reality is that sometimes documents produced on subpoena do go missing and, sometimes (perhaps more often than not) this has nothing to do with the parties or their legal representatives. To make the allegation that somehow the Independent Children’s Lawyer was inferentially complicit in documents being deliberately lost is completely inappropriate in circumstances where there is no evidence to support this. If all of the relevant documents are not present, then a further subpoena should be issued, and the Court notes there should be plenty of time for this to occur before the final hearing.
To assert that the Independent Children’s Lawyer is not independent and is “Protecting a drug addict who is not telling the truth” completely misses the point. There is a difference between an allegation such as the one the mother makes, and a finding that is made after evidence has been presented to a Court in a hearing and duly tested. The Independent Children’s Lawyer demonstrates independence by not treating a mere assertion as a fact. The mother would do well to consider the logical consequences of the Court accepting as fact every allegation made in this case. One result would be that, because the father has said so, the mother is an alcoholic who is violent towards the children. These are factual matters for the Court to decide at a final hearing (Goode & Goode [2006] FamCA 1346), and the Independent Children’s Lawyer is no less independent for not acting on the mother’s allegations.
Another basis put forth by the mother for discharging the Independent Children’s Lawyer was the children’s non-attendance at school. The material before the Court creates the impression that the children did miss school in 2018, and that the non-attendance followed a pattern of being on Fridays and Mondays. This was duly noted by the Family Consultant because the Independent Children’s Lawyer did what she was supposed to do, and ensured that that material was placed before the Family Consultant. There is no basis for discharging the Independent Children’s Lawyer on this ground.
There are a number of other factual matters raised by the mother in support of her application to discharge the Independent Children’s Lawyer, all of which suffer the same issues identified above. With the greatest of respect to the mother, who the Court has already acknowledged harbours legitimate concerns about her children, there are simply no grounds for discharging the Independent Children’s Lawyer.
The mother appears to have experienced the Independent Children’s Lawyer as somewhat distanced from her, and perhaps unresponsive and unsympathetic at times. The Guidelines for Independent Children’s Lawyers make clear, for example, at 6.4 that “the ICL is to remain independent, objective, and focused upon promoting the child’s best interests in all dealings throughout the proceedings”. The Independent Children’s Lawyer must at all times be, and be seen to be, independent and at arm’s length from any other party to the proceedings.
Perhaps the mother felt that the Independent Children’s Lawyer owed some form of duty to her, but in reality, the Independent Children’s Lawyer owes a duty to the Court, and not to the parents.
CONCLUSION
Whilst the mother’s concerns about her children are completely understandable, as is her frustration about the litigation process, there is no ground on which to discharge the Independent Children’s Lawyer. Moreover, from this Court’s perspective, it is neither in the children’s interests, nor in the public interest, to discharge an Independent Children’s Lawyer at a critical stage of the case when detailed preparation for a final hearing needs to take place. The mother’s application for the Independent Children’s Lawyer to be discharged is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 18 February 2021
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