Fierro & Fierro
[2022] FedCFamC1F 254
•22 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fierro & Fierro [2022] FedCFamC1F 254
File number: SYC 7639 of 2021 Judgment of: MCGUIRE J Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – CHILDREN – Independent children’s lawyer – Application for removal of the independent children’s lawyer – whether independent children’s lawyer has complied with obligations under the Family Law Act 1975 (Cth) s 68LA – whether removal is justified – application dismissed Legislation: Family Law Act 1975 (Cth) ss 68L and 68LA Cases cited: Horner & Horner [2018] FamCA 487
Rice & Asplund (1979) FLC 90 - 725
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 13 April 2022 Place: Hobart Solicitor for the Applicant: Litigant in Person Solicitor for the First Respondent: Litigant in Person Counsel for the Second Respondent: Mr Trezise Solicitor for the Second Respondent: Dobson Mitchell Allport Counsel for the Independent Children’s Lawyer: Ms Mooney SC Solicitor for the Independent Children’s Lawyer: Legal Aid Commission ORDERS
SYC 7639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.That the application filed for removal of the Independent Children’s Lawyer on 27 of March 2022 be dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Fierro & Fierro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATION
The application before me is one to discharge the appointment of the independent children's lawyer (‘ICL’), Simone Watson, a solicitor employed by the Legal Aid Commissioner.
The applicant is Mr Fierro who is the applicant in substantive proceedings in respect of the one child being X born in 2008 (aged 14 years).
The applicant is the child's adult brother. The child's father, Mr A Fierro, is the first respondent to these proceedings. The child's mother, Ms Bien, is the second respondent.
There are concurrent proceedings in respect of the child where the applicant is Mr C. He is 18 years of age and is the child’s relative and hence the applicant’s relative. Suffice to say that the family dynamics are complex. The applicant is not a party to Mr C’s proceedings. Mr C is not a party to the applicant's application.
The appointment of the ICL was made as recently as 8 March 2022 and was then made against the stated opposition of the applicant. There have been previous proceedings in respect of the child involving the parties to this application. Those proceedings settled by consent orders made 21 May 2021. Mr D, then of the Legal Aid Commission, was the appointed ICL. It is clear on the evidence that Ms Watson assisted Mr D in his role.
THE RELEVANT LAW
It is trite to observe that the Court has inherent jurisdiction and hence power to control its own proceedings including the power to both appoint and discharge an ICL. Such power is by its nature discretionary.
Substantial authority notes a broad range of rationale for the discharge of an ICL including but not limited to:
(1)acting contrary to the child's interest;
(2)incompetence;
(3)lack of professional objectivity; and
(4)conflict of interest.
The power to appoint an ICL is provided at s 68L of the Family Law Act 1975 (Cth) (‘the Act'). Section 68LA assists in providing details to the role of the ICL including the distinct relationship between ICL and child as opposed to solicitor and client and is as follows:
68LA Role of independent children’s lawyer
When section applies
(1)This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children’s lawyer
(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.
I also note that guidelines are published by the Court for the assistance of the ICL in the conduct of the role including as noted by Tree J in Horner & Horner [2018] FamCA 487:
•The Independent Children's Lawyer is expected to use his/her professional judgement and skill, subject to any direction or orders of the court. The availability of funding is, however, a practical constraint;
•The Independent Children's Lawyer must, if satisfied that 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;
•The Independent Children's Lawyer should seek to develop a case plan at the earliest opportunity, where appropriate in consultation with any family consultant or other expert involved in the case.
It is the nature of the role of the ICL in adversarial litigation that he/she might develop recommendations or advocate a course of action inconsistent with the position of either primary party or indeed both parties.
Consistent with presumed competence, the ICL utilises experience and judgement in what are commonly difficult, complex, and adversarial parenting proceedings.
It is generally accepted that a court should be slow to discharge the appointment of an ICL and certainly not on the basis of formulating views contrary to a party where the interests of justice and the interests of the child should not permit any form of appointment or discharge of an ICL on the basis of a party’s preference or simple grievance.
THE APPLICATION
The applicant is self-represented but has prepared his application thoroughly and is informed as to circumstances, context, and the relevant legal authorities. The application is supported by a lengthy affidavit which at times falls into a form of rambling narrative and unsubstantiated opinion. I do not, however, criticise the applicant in this respect but simply make an observation where he is unrepresented. To his credit, however, the applicant has provided a succinct Outline of Submissions summarising his argument.
The applicant relies on affidavits sworn 14 and 27 March 2022.
The ICL is represented by counsel in this application and relies on a short affidavit of Simone Watson affirmed 11 April 2022. Mr A Fierro, the first respondent father, represents himself and made short submissions against the application. The second the respondent mother is represented by counsel who also made short submissions effectively adopting the submissions of counsel for the ICL.
The applicant firstly argues that Ms Watson assisted the previous ICL, Mr D. It appears that this was the case. This in itself is not unusual for practitioners working in the same firm and I note that Ms Watson concedes having previously met the child on two occasions. Again, such a situation would not be unusual and particularly where a judgement might be made for a female contact with a female child involved in litigation.
The applicant appears to argue that Ms Watson, in her previous role as assisting the appointed ICL, “bore all the power and responsibility afforded to an ICL…”. I disagree. It was for the then appointed ICL, Mr D, to formulate views, courses of action, and recommendations. Ms Watson's current appointment is not, therefore, in my view, compromised by her previous assistance rendered to Mr D in that she is now able to, and indeed perhaps obligated to, formulate recommendations, courses of action and viewpoints in respect of the current litigation and the factual platform within its temporal and contextual basis. In fact, and noting that the previous proceeding settled by consent orders, I have no specific complaint in respect of Mr D and I am not aware of any formal complaints having been made but where, in any event, I am satisfied that the previous involvement of Ms Watson does not compromise her current appointment and objectivity.
The applicant appears to complain in respect of the consent orders of May 2021 that he entered them under a form of “duress” where he had been suffering an illness and was hospitalised. Firstly, I note that he was represented at the time of the making of the orders and where, on his waiver of privilege, I have the communications between he and his then solicitor that might, if necessary, satisfy me as to the conveying informed consent. In any event, I fail to see the nexus between the appointments of Mr D as previous ICL and the current appointment of Ms Watson where it seems obvious that Mr D formed opinions and recommendations providing the basis for the consent orders. Quite simply, he was entitled to do so. Should the applicant be aggrieved by the consent orders being allegedly entered into under duress then he had the option of appeal or, alternatively, (and as he appears to have done so) to bring fresh proceedings subject to the limitations of Rice & Asplund.[1]
[1] (1979) FLC 90 - 725.
The applicant argues a form of bias or apparent bias in Ms Watson's continued appointment as ICL. He argues that the ICL offered to serve the documents on the second respondent, Ms Bien. The second respondent was at the time unrepresented. It seems that the applicant himself had failed to join the mother as a party to the proceedings which is mandated under the Act. In all of those circumstances, I see Ms Watson's actions as being only courteous and to assist in the efficient running of proceedings. I do not accept that a fair – minded observer would conclude any bias in the invitation to assist with service.
I make a similar comment and conclusion in respect of the assertion of bias alleged against Ms Watson by she noting the need for conduct money in respect of a subpoena in circumstances where parties to these proceedings were unrepresented and might not ordinarily be familiar with the many provisions of the Act and Rules. Again, experience suggests that such assistance rendered by the ICL leans towards efficient litigation and the removal of some of the anxieties of that litigation for unrepresented parties.
The applicant appears to allege a bias in Ms Watson by her multiple reference in documents to him by both his christian and surname. Frankly, and where the first respondent, also unrepresented, carries the same surname then I fail to see any connotation contrary to the applicant's interests or prejudicial to the applicant.
Similarly, Ms Watson, for the ICL, appears to have written generally advising the introduction of s 102NA into Act which prohibits the cross-examination between unrepresented parties where there is an extant family violence order/intervention order or where appropriate in the discretion of the Court. I see such advice as entirely appropriate and assisting of self-represented parties and in no way indicative of the formulation of a view contrary to the applicant or any of the parties.
The applicant complains at [18][2] that on 12 May 2021 Ms Watson provided or advised the ICL's recommendations reflecting the child's views. The applicant complains that such recommendations do not take into account the concerns and issues raised in the filed material or in the memorandums (sic). As indicated in the Guidelines, the ICL is entitled to form a view on aspects of the evidence. That viewpoint may be contrary to the positions agitated by the parties or either of them. It is proper and again in the course of efficient litigation for the ICL to articulate those views. They are open to critical submissions and argument by either of the parties. Certainly, it is open for the Court to reject the ICL's recommendations. It is clear that the applicant in May 2021 put material including serious allegations in respect of the first respondent father, on affidavit material. There is no indication that the ICL was not apprised of that material. In any event, the recommendations at that time were made by Mr D and I note again resulted in consent orders. I note that Mr D’s articulated views which then lead to the negotiations towards consent orders mentioned above and where the applicant was represented. The fact that Ms Watson, in her role of assisting Mr D, conveyed those views to the parties does not compromise her current appointment or independence.
[2] Affidavit of the applicant filed 27 March 2022.
The applicant alleges that the ICL's recommendations were contrary to the second respondent mother’s “actual wishes” which he himself concedes were ambiguous (see [20] of his affidavit). Quite simply, it is open for an ICL to formulate views contrary to the wishes of a party and is, in fact, a common occurrence. I note, in any event, that the second respondent mother raises no complaint in respect of the appointment of either Mr D or Ms Watson despite the applicant's affidavit at [20] claiming “the second respondents (sic) actual wishes are represented in recent events in the period 6 Feb 2022 – 13 Feb 2022, where our friendship resumed as she fought to integrate me back into the child's life…”.
The remainder of the complaints at [20] of the applicant's affidavit rest on a fundamental conflict between the applicant and the first respondent and I do not to conclude anything contrary to the competence of the ICL.
I can find nothing relevant for these proceedings and Ms Watson's appointment as ICL from the contents at [21]-[23] of the applicant's affidavit. The complaints relate to 2021 and the role of Mr D as ICL. I repeat my comments above as to the function of the ICL to assess and rely upon particular evidence; that the matter settled by consent; and that Ms Watson’s appointment in March 2022 is not compromised by her assisting the previous ICL.
The remainder of the applicant's affidavit reference factual disputes between he and the other parties, notably the first respondent father, where, as mentioned above, the ICL was at all times entitled to form from the evidence a viewpoint, recommendation, and preferred course of action. Specifically, the applicant alleges that the ICL informed the child of the conflict between the applicant and his other sister, Ms F and/or conflict between the applicant and the first respondent. I note the age of the child. Yet again, such disclosures are the province of an informed and experienced ICL. That fact itself does not persuade me of any incompetence in Ms Watson as ICL.
CONCLUSION
In all the circumstances, I find no merit in the application by Mr Fierro to discharge the appointment of the ICL. The application will be dismissed. I will hear counsel and the parties in respect of costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 April 2022
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