Flaherty & Downs (No 2)
[2022] FedCFamC2F 373
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Flaherty & Downs (No 2) [2022] FedCFamC2F 373
File number(s): ADC2489 of 2018 Judgment of: JUDGE McGINN Date of judgment: 10 May 2022 Catchwords: FAMILY LAW – repeated interim applications for parenting orders – previous and recent determinations of interim applications – proximity of Child Impact Report pursuant to previous orders – Central Practice Direction - no change in circumstances justifying reconsideration of previous interim orders – dismissal of interim application – steps before further, similar application – application to discharge Independent Children’s Lawyer on account of lack of response to applicant’s correspondence – not justifying discharge of Independent Children’s Lawyer - application dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Dean & Susskind [2012] FamCA 897
Horner & Horner [2018] FamCA 487
Knibbs & Knibbs [2009] FamCA 840
Leroux & Leroux [2015] FamCA 1128
Lloyd & Lloyd & The Child Representative (2000) FLC 93-045
Malcher v Malcher (No 2) [2012] FamCA 1115
Paco & Racina [2014] FamCAFC 195
Re Golding [2020] HCA 38
Rice & Asplund (1979) FLC 90-725
Sawyer & Sawyer [2015] FamCA 982
Stenning & Stenning [2021] FamCA 561
Vale & Vale [2016] FamCA 307
Division: Division 2 Family Law Number of paragraphs: 108 Date of last submission/s: 28 April 2022 Date of hearing: 28 April 2022 Place: Adelaide Counsel for the Applicant: Mr Britton Solicitor for the Applicant: Women’s Legal Service The Respondent: Mr Downs Counsel for the Independent Children's Lawyer: Mr Childs Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC2489 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FLAHERTY
Applicant
AND: MR DOWNS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE McGINN
DATE OF ORDER:
10 MAY 2022
UPON NOTING that in the event that the Orders for the filing of documents for the adjourned hearing provided for in these Orders have not been complied with, the Court shall:
A.give consideration to vacating the adjourned hearing and list the matter for mention only;
B.give consideration to making an Order:
i.that the defaulting party pay the costs of the party not in default; and/or
ii.consider as to whether costs Orders be made personally against the solicitor for the defaulting party; and/or
iii.having the matter adjourned or listed to proceed without evidence from the defaulting party and/or undefended;
C.that pursuant to clause 5.22 of the Central Practice Direction the father is required to seek leave to file any further Application in a Proceeding.
IT IS ORDERED:
1.That the father’s Amended Application in a Case filed 22 February 2022 and paragraphs 1, 2 and 4 of the mother’s Response to an Application in a Proceeding sealed 24 March 2022 be dismissed.
2.In the event that the mother is to pursue her application for costs by paragraph 3 of her Response to an Application in a Proceeding sealed 24 March 2022, that:
(a)within 14 days of these orders the mother do file and serve a written submission as to costs not exceeding 2 pages;
(b)that within 7 days of service of the mother’s submissions, the father file and serve any written submissions in response to the mother’s Application as to costs not exceeding 2 pages;
(c)that within 7 days of service of the father’s submissions, the mother file any written submission strictly in reply not exceeding 2 pages; and
(d)that upon the filing of the last of the submissions the question of the mother’s application for costs pursuant to paragraph 3 of her Response to an Application in a Proceeding sealed 24 March 2022 otherwise stand reserved for delivery by electronic means.
3.That each of the submissions referred to in order 2 do comply in all respects with the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
4.In the event that no submission is received pursuant to order 2(a), the mother’s application for costs do otherwise stand dismissed.
5.That pursuant to s 64B(2)(g) of the Family Law Act 1975 (Cth) the father is not, without the leave of the Court first had and obtained, to file any application to vary order 15 of 14 December 2021 without the following steps having been undertaken:
(a)the filing of an affidavit of the father annexing current reports of:
(i)Dr B; and
(ii)correspondence from his employer listing:
A.his hours of regular work;
B.whether he is required to work on weekends;
C.the weekends he has worked since 14 December 2021; and
D.his recommendation from 14 December 2021 to date of this order;
and/or
(b)an affidavit of the father annexing reports of any other psychologist who the father has consulted since 14 December 2021 and correspondence from his employer addressing matters listed in 5(a)(ii).
6.That these proceedings are adjourned to 29 June 2022 at 9.30am for callover and/or possible trial listing (the adjourned hearing).
7.That subject to COVID protocols the parties personally attend the adjourned hearing AND it is requested that counsel properly instructed for trial attend and in the event they are not available, the file principal attend.
8.That in the event that any party is legally aided they are to make their application for a grant of legal aid for TRIAL PURPOSES no later than six weeks prior to the callover and be in a position to advise the Court as to funding arrangements at the callover.
9.That no less than 7 days prior to the adjourned hearing date each of the parties and the independent children’s lawyer (if any)shall file and serve on each other party and the independent children’s lawyer (if any) a callover document comprising in the following order and under the following headings:
(a)a brief summary of the factual issues in dispute;
(b)a short chronology of significant events;
(c)a joint chronology of events by date, time, and place (if place is relevant) and event that happened that agreed to have occurred for the purpose of these proceedings;
(d)a joint list in chronological order of the events by date, time, place (if place is relevant) and event that is alleged to have occurred and the party asserting that event that are disputed for the purpose of these proceedings;
(e)the specific orders sought at trial (if different to those set out in the Application/Response);
(f)a list of any subpoena which are to be issued, if leave is required to issue such subpoena, identifying the name of person to be subpoenaed and type of subpoena and if leave to serve the subpoena is to be sought;
(g)list of the witnesses to be relied upon at trial;
(h)estimated length of trial;
(i)costs notice complying with Rule 12.06; and
(j)whether any order is sought pursuant to s 102NA and particulars justifying such an order or how quickly an application for such an order is to be filed.
10.That 8 days prior to the adjourned hearing that each party file and serve:
(a)an undertaking as to disclosure pursuant to Rule 6.02 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021; and
(b)a Certificate of Readiness pursuant to clause 5.53 of the Central Practice Direction.
11.That the Associate to Judge McGinn provide a copy of the reasons of 14 December 2021 to all parties.
12.That the Independent Children’s Lawyer provide a copy of the reasons of 14 December 2021 to the Child Impact Report writer Ms C prior to the conducting of interviews for the Child Impact Report.
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 Flaherty & Downs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
The matter that now comes before the Court in these proceedings is the father’s Application in a Proceeding sealed 9 February 2022 and amended 22 February 2022, and the mother’s Response to that amended Application in a Proceeding filed 24 March 2022.
The Court offered to the applicant father to hear and determine his application at the hearing that took place at 2.15pm on 29 March 2022.
It was indicated by counsel for the respondent mother and counsel for the Independent Children's Lawyer who attended on the afternoon of 29 March 2022, that they were in a position to proceed to argument.
However, on that occasion, the father indicated to the Court that he was not in a position to argue the matter and sought that the matter be deferred and delayed so as to enable him to be in a position to proceed with argument.
Upon it being indicated to the father that argument could take place on 28 April 2022 at 2.15pm, the father sought that the hearing of his application be delayed until such time.
The Court granted the father the indulgence of adjourning the matter to that time for the purposes of hearing.
The hearing then proceeded on 28 April 2022.
By the father’s Amended Application in a Case he seeks, in broad terms, the discharge of the Independent Children's Lawyer and secondly, a cessation of the suspension of the final orders made by the consent of the parties on 12 June 2020 with respect to the time that he spends with the parties’ only child X born in 2015 (now aged six).
The father’s application was supported by his affidavit sworn 9 February 2022.
That affidavit contains many paragraphs that are simply unhelpful in that they are combative and opinionated.
The paragraphs in his affidavit that are of assistance in understanding the facts upon which the father’s present application assert:
(a)in 2021 the father commenced employment with Employer D at Suburb E, South Australia;
(b)in 2021 the father was offered employment by Employer D;
(c)that employment requires the father to work from 8.00am to 4.00pm on Saturdays;
(d)the father works on Saturdays at Suburb F;
(e)the father’s mother lives at Suburb E, South Australia;
(f)the father’s mother “watches over” X from 8.00am Saturdays when X is to spend time with her father;
(g)on 15 December 2021 at 6.22pm, the father wrote to the mother’s solicitor seeking to adjust the time he spends with X to 6.30am Saturday or 3.00pm Friday, requesting a response by 4.00pm on Friday 17 December;
(h)on 17 December 2021 at 3.15pm the mother’s solicitor on behalf of the mother agreed Saturday at 6.30am and “upon providing evidence of both employment and that your mother responds to us on Saturday”;
(i)on 17 December 2021 at 3.53pm the father responded by email but did not provide the evidence requested by the mother simply referring to it as “useless information that is enquired when you are claiming fraud”;
(j)on 17 December 2021 at 5.21pm the mother by her solicitors said that if the father was unable or unwilling to provide the evidence requested that their client would stay with the order; and
(k)on 17 December 2021 the father asked the Independent Children’s Lawyer to comment so as to help to resolve matters. The Independent Children’s Lawyer did not respond to that invitation.
The mother has filed a responding affidavit sealed 24 March 2022.
The mother’s affidavit’s brevity does not join issue with the factual matters contained in the father’s affidavit referred to above.
Rather, the mother’s affidavit simply records that:
(a)no issue is taken about the current Independent Children’s Lawyer; and
(b)the father has brought multiple applications of a similar nature to the present application which have been dismissed by the Court.
The Independent Children’s Lawyer filed no affidavit material in respect of the father’s application.
Each of the mother’s and the Independent Children’s Lawyer’s counsel referred to the other interim applications and earlier orders made in this matter. They each did so to differing extents.
This Court accepts that there needs to be a reference to the other applications but in a fuller way than either of those counsel made in the course of their submissions.
The context in which the father’s application is brought needs to be understood.
Final parenting orders were made on 12 June 2020 with the reservation of an issue as to some make up time that the father wished to pursue.
Ultimately that application on behalf of the father was not pressed before the Court.
On 9 February 2021 the Court, amongst other things during the period of an adjournment, suspended various orders of 12 June 2020 providing for the father to have time with X and, in addition, issued a recovery order.
On 11 March 2021, the Court further ordered that the father’s time, as provided for under the orders of 12 June 2020, be suspended during the period of the adjournment.
On 3 June 2021, the Court ordered until further order, that the suspension previously granted continue “during the period of the adjournment.”
That order was made whilst various interlocutory proceedings were pending before the Court including the father’s Application in a Case filed 31 July 2020, the mother’s Response of 14 August 2020, the mother’s Application in a Case sealed 27 January 2021, the father’s Response sealed 22 February 2021, the mother’s Response sealed 25 March 2021, the mother’s Amended Application for Final Orders sealed 25 March 2021 and the father’s Amended Response to Final Orders sealed 10 April 2022.
Those Applications and Responses were pending in and amongst other Contravention Applications filed by the father.
Those Applications and Responses of the father included the father’s applications for:
(a)the amendment of paragraph 5.2 of orders of 12 June 2020;
(b)dismissal of the order of 12 June 2020;
(c)that the order of 12 June 2020 be suspended, provision by the applicant mother of a psychiatric assessment to be reviewed by the Court; and
(d)a discharge of orders of 12 June 2020.
On or around 13 July 2021 the father lodged an Application in a Case sealed 21 July 2021 seeking removal of the Independent Children’s Lawyer and “unsuspension” of the order of 12 June 2020.
On 21 September 2021 the Court, amongst other things, recorded that the father was difficult and agitated during the course of the hearing and had to call security. The Court also ordered on that day that the father’s affidavit of 13 July 2021 (supporting the Application in a Case sealed 21 July 2021) be uplifted and an affidavit be filed in support of that Application in a Case by 15 October 2021.
On 28 March 2022, the father, whilst giving evidence during the hearing of his own Contravention Applications, left the Court hearing without notice. He subsequently returned later that morning.
Since 3 June 2021, the father has filed (other than Contravention Applications) a number of applications which have been the subject of comment in earlier judgments by the Court. Those applications have not been successful.
The father’s Application in a Case filed 13 July 2021 sought, amongst other things, “unsuspension” of the suspension of the orders of 12 June 2020.
The father’s Amended Application in a Case filed 1 November 2021 sought the removal of the Independent Children's Lawyer.
The father’s next Application in a Case filed 12 November 2021 sought dismissal of the orders providing for the suspension of the father’s time under orders of 12 June 2020.
On 14 December 2021 the Court, amongst other things, directed that a Child Impact Report be prepared with interviews to take place on 16 May 2022 and otherwise confirmed the order of 3 June 2021 providing for the submissions of the father’s time under the order of 12 June 2020. In making orders on 14 December 2021, the Court gave reasons.
Amongst the orders of 14 December 2021 were orders dismissing the father’s Application in a Case of 12 November 2021 relating to the “unsuspension” of time.
This brief review of the history of the matter illustrates that since February 2021, orders have been made in various forms suspending the father’s time with X as provided for in the orders of 12 June 2020 and that the suspension of that time of those stood confirmed as of 14 December 2021 after hearing argument on behalf of the father, the Independent Children's Lawyer and the mother.
The counsel for the Independent Children’s Lawyer has submitted, correctly in the Court’s view, that a proper consideration of the reasons and orders of this Court of 14 December 2021 should lead to dismissal of the current application in relation to the “unsuspension” of the father’s time.
In the reasons the Court gave on 14 December 2021, the Court identified, amongst other things, that the Court would not be moved to “unsuspend” the earlier orders on account of the lack of recent evidence from his treating psychologist whom the father was consulting as a reason for confirming the order suspending time.
In the present application, the father has not adduced any such evidence.
The father said in his replying submission in respect of the present application that he has not been directed to take such evidence and implies he should not now be criticised for the lack of such evidence.
The Court disagrees. Reasons provided by a Court do not only enable parties, amongst other things, to understand why the Court has made the decision it has, but to also comprehend what might be lacking in their case. Such identification as to what is lacking can assist the parties in subsequent negotiations or applications before the Court.
The father’s inability to perceive that such material would be needed by the Court to assist (but not necessarily determine) any future parenting applications indicates a lack of understanding of the father as to how his daughter’s interests (as he perceives them to be and generally) might be advanced before the Court.
The counsel for the Independent Children’s Lawyer also correctly identifies that the father did not advance, during the course of argument leading to the judgment of 14 December 2021, that his then work arrangements were a matter which affected or were to be taken into account in determining the nature of orders to be made as to his daughter’s welfare and in particular as to the time she might spend with him.
In this context, counsel for the Independent Children’s Lawyer says that the father’s employment circumstances dating as they do back to September 2021 are not new, could have been raised in the December 2021 argument before the Court and do not now justify a present reconsideration of the suspension of time orders made in this Court.
The Court agrees with that submission.
Counsel for the Independent Children’s Lawyer also emphasised in his submissions that the father’s correspondence giving rise to the present application followed immediately on the heels of this Court’s reasons of 14 December 2021 and that the near contemporaneity of the father’s correspondence implies an unwillingness on behalf of the father to accept this Court’s decisions or at least utilise them in such a way as to promote his daughter’s welfare.
The Court agrees.
Counsel for the Independent Children’s Lawyer says that the lack of response from the Independent Children’s Lawyer to the father’s emails of 17 December 2021 at 6.45pm and 7.49pm in all the circumstances is justifiable.
In the circumstances, the Court considers that the Independent Children’s Lawyer was not required and should not be considered to have been required to enter into the debate between the mother and the father as an arbiter of their then dispute particularly where such a dispute had reached an impasse by 7.49pm on Friday 12 December 2021 and where that dispute was based, at least in part, as to the terms and conditions of the father’s employment that could have been agitated before the Court a few days previously and was not.
Although not required earlier in the debate, it would have been of assistance if the Independent Children’s Lawyer’s view, or lack of one, had been made known to the parties.
The father’s present application by his Amended Application in a Case of 22 February 2022, identifies that the father has had employment since September 2021 and that he has to undertake travel for the purposes of him affecting time with X. He submits that pursuant to the present orders of 3 June 2021, which has X’s time commencing with him at 7.30am on Saturday morning, this involves a travel time and expense which it is implied is not possible for the father to reasonably accommodate.
However, the Court notes that the alleged inconvenience brought about by travel has had to be borne by the father since September 2021 and to date the father has been able to do so.
Whether the inconvenience in all the circumstances is unreasonable, improper or one that does not operate in the child X’s interests would turn upon findings which, amongst other things, would require a consideration of the times and conditions of the father’s employment.
The father has declined to respond to a call made by the mother on 17 December 2021 for “evidence” about his employment and that the alleged requirement for the father to work on Saturday.
The wife’s call for such evidence is not unreasonable in the circumstances. The wife’s request can and should have been understood as a request for material from a source independent of the father, namely his employer, referencing his then claims of “work commitments” making handover arrangements “not possible.”
The father indicated in his correspondence of 17 December 2021 at 3.53pm that the information sought “is unrequired unless you are claiming fraud.” In making that assertion the father was mistaken.
The father has, in his submissions, explained his resistance to that call. Firstly, he said that the information called for would be private and confidential as he said that the call would disclose his contract of employment, hours of work, when he works, bank account details and referees. Secondly, he said the necessary evidence was supplied in his affidavit of 9 February 2022.
The Court rejects each of those submissions as justifying a lack of provision of “evidence” and as to the father’s affidavit constituting sufficient “evidence” to meet the wife’s request.
The father’s working conditions and, in particular, his working hours, the ability of his employer to call upon or demand he work certain hours and (as he introduced the question of travel expenses expressed by his email of 17 December 2021, 7.49pm) his remuneration are all relevant to the current dispute between the parents and are matters about which the father can and should have responded and provided. Confidentiality needs to give way to the demands of the parties’ dispute and this litigation.
Had he done so in a timely manner, the present interlocutory proceedings might have been avoided.
The father was, in the Court’s view, under an obligation to request and obtain the material sought by the wife. The Court would have been assisted in having such material before it so as to be able to determine if the impact of travel costs sustained over the previous three months and into the future would justify a reconsideration of ordered arrangements.
The circumstances of the father’s employment in so far as those circumstances might be regarded as a matter between him and his employer and be so confidential must give way to the requirement on the father’s behalf to disclose information and records that are relevant to the dispute before the Court.
Although the mother or the Independent Children’s Lawyer could have subpoenaed the information constituting the sought after “evidence,” this capacity to subpoena is no answer to the inference to be drawn from the failure of the father to provide such evidence that the provision of such evidence would not assist the father’s case.
Without this type of employment evidence, the Court cannot ascertain whether financial difficulties or lack of employment flexibility should cause a consideration of a change of commencement time as now agitated for by the father.
The father has also set out in his affidavit in general and broad terms, that the current suspension of time is not operating in X’s best interests.
As noted by the history above of interim applications, this is not the first time this application presently agitated by the father has come before the Court.
Her Honour Justice Kari in her judgment of June 2021 expressed concern about the number of interim applications and contravention applications that have been filed in this matter since final orders were made by consent of the parties on 12 June 2020.
With respect, this Court continues to share Her Honour’s concerns and further considers such concerns to remain a matter of significant weight in considering how to dispose of the present application.
As Ryan J stated in Malcher & Malcher (No 2) [2012] FamCA 1115 at paragraph 15, the Family Court is not a Court of unrelenting interlocutory applications. With respect, this Court considers the same can be said of the Federal Circuit and Family Court of Australia (Division 2).
His Honour Justice Berman in Stenning & Stenning [2021] FamCA 561 said at paragraph 44:
“Whilst the principle of res judicata and issue estoppel do not apply in the consideration of parenting proceedings, the underlying principle namely, that a party should not use a court’s procedure to bring applications that seek similar relief in a manner that brings into question the administration of justice applies.”
Further, His Honour said at paragraph 47:
“The consideration of the mischief arising from successive interim applications reconsider an earlier decision that is unsatisfactory to a party underpins the rationale of the decision of the Full Court in Rice & Apslund (1979) FLC 90-725 which highlights the detriment caused to the parties and a child of endless litigation which should not be embarked upon unless there is a material change in the circumstances that would justify a further consideration of parenting issues.”
Similarly, His Honour Justice Nettle in Re Golding [2020] HCA 38 at paragraph 11 said:
“Generally speaking, an applicant for interlocutory relief is required to advance all of the grounds on which he or she relies in support of the reliefs sought; and, in the absence of exceptional circumstances, such as, for example, the discovery of facts which the applicant was not aware and which the applicant could not ascertain without reasonable diligence at the time of the first application, it would ordinarily be regarded as an abuse of process to make a second application for interlocutory relief on the same or other grounds.”
In summary, the Court is of the view that the father in seeking to “unsuspend” orders is simply re-agitating that which was deliberated upon by the Court and upon which judgment was delivered on 14 December 2021.
The Court is also mindful that clause 5.22 of the Central Practice Direction relating to family law case management in this Court provides that other than in urgent circumstances relating to issues of high risk, parties may each file a maximum of two Applications in a Proceeding without leave.
That Practice Direction came into effect as of 1 September 2021.
Since that date, the father has filed at least two such applications and will now require leave to file any further Application in a Proceeding unless he can establish issues of high risk.
Since the father obtaining employment in September 2021 and the length of time which has since elapsed during which he has collected X from Suburb G pursuant to orders of 3 June 2021, clearly demonstrates that the father’s employment circumstances were known to the father by the time that submissions were made which resulted in the judgment of 14 December 2021.
It has been the father’s responsibility to adjust to the circumstances of the orders of 3 June 2021 and 14 December 2021. It is not the case to now change orders to address what must have been pre-existing difficulties or inconveniences which the father had experienced and overcome.
The Court is mindful that however desirable it is to limit interlocutory applications in parenting matters, that such desirability must be tempered and serve what is in a child’s best interests.
The Court does not consider, in all of the circumstances, that where there is a Child Impact Report to be available in the relatively short term and where there is no new factual matters raised in the father’s most recent affidavit, that it is not in either X’s or the parties’ interests for the father’s present interim application for revocation of suspension of time to be again agitated at this time and certainly not without material from the father’s psychologist.
In all of the circumstances, the Court further considers that both X’s and the parties’ circumstances have not changed sufficiently to justify a present reconsideration of the suspension of the orders of 12 June 2020 at this time which have been in place since 9 February 2021.
Accordingly, the Court will make an order dismissing paragraph 2 of the father’s Amended Application in a Proceeding and requiring steps to be taken before there is to be any further parenting order applications of a similar type made by the father.
Another aspect of the father’s interim application is for the removal or discharge of the appointment of the Independent Children's Lawyer.
The father’s affidavit sealed 9 February 2022 at paragraph 15 states the following:
“I also on the 17 December 2021 asked the ICL as representing X to comment on this to help resolve. The only two pieces of correspondence in the last 54 days provided by the ICL is two letters requesting to not appear on Xs behalf in court.”
That statement in the father’s affidavit infers that the father’s view is that the Independent Children's Lawyer is not conducting the proceedings in a manner which finds favour with the father. It does not enable any further inference to be drawn as to the nature of the conduct of the Independent Children's Lawyer’s role.
The statement in the father’s affidavit is considered to be a blank allegation which the Court is not prepared to accept nor to be satisfied that it has been established. In Horner & Horner [2018] FamCA 487 at paragraph 10 His Honour Justice Tree identified the following points which he said could be discerned from a number of authorities which have considered the removal of an Independent Children's Lawyer:
“It is not inconstant with the independent and professional discharge of an Independent Children's Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought to be taken by the Court;[1]
Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;[2]
On occasion, the Independent Children's Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;[3]
Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;[4]
It is not appropriate for a litigate to endeavour to micro-manage the Independent Children's Lawyer, or critique every step that they take;[5]
It is certainly not the case that, even if an Independent Children's Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;[6]
It is inevitable that the high standards of competence which the court expects of Independent Children's Lawyers are not always met. Independent Children's Lawyer are, like anybody, liable to human frailty;[7]
A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.”[8]
[1] Dean & Susskind [2012] FamCA 897 and Sawyer & Sawyer [2015] FamCA 982 at [57]. See also Knibbs & Knibbs [2009] FamCA 840 at [33] – [61] approved in Paco & Racina [2014] FamCAFC 195 at [52].
[2] Knibbs & Knibbs [2009] FamCA 840 at [33] – [61] and Leroux & Leroux [2015] FamCA 1128 at [31].
[3] Ibid at [47] – [50] and ibid at [35].
[4] Ibid at [52] – [61] and ibid at [39].
[5] Leroux & Leroux [2015] FamCA 1128 at [218].
[6] Sawyer & Sawyer [2015] FamCA 982 at [80].
[7] Ibid at [79].
[8] Lloyd & Lloyd & The Child Representative (2000) FLC 93-045.
Those matters referred to in His Honour Justice Tree’s judgment are, with respect, adopted by this Court and remain relevant in considering the present application.
The Court has stated earlier in these reasons its view of the lack of participation of the Independent Children’s Lawyer in the correspondence of 15-17 December 2021 and in the period since. The Court is not satisfied that this lack of participation justifies any revision of the Independent Children’s Lawyer’s role at this time.
In so far as the father’s submissions and affidavit material implies that the Independent Children's Lawyer is biased against him or alternatively is biased in favour of the mother, and has not acted impartially between the parties as is required by section 68LA(5)(a) of the Family Law Act 1975 (Cth), in Vale & Vale [2016] FamCA 307 at paragraph 26, Forrest J said:
“I am quite satisfied that it is accepted principle that the Court should be slow to discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.”
At paragraph 30, Forrest J said:
“Parents who are involved in litigation in this Court about their children need to understand that it is part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children and in particular circumstance of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case. The ICL might seek from the Court orders completely contrary to orders sought by one or both of the parents. That does not mean the ICL is not acting independently and impartially in the best interests of the children.”
With respect, the Court agree agrees and adopts these comments.
The Court is not satisfied that the evidence discloses nor has the conduct of the Independent Children's Lawyer in this matter to date been such as to warrant her removal on grounds of an actual or perceived bias.
Further, the Court notes that the Independent Children's Lawyer has been active in this case since being appointed on 9 February 2021 by Her Honour Justice Kari.
Further, there is the question of costs and the inconvenience of replacing the Independent Children's Lawyer which would impose a further cost upon the Legal Services Commission of South Australia that supplies or funds such lawyers. These are matters which are also bought to account against the father’s application.
Accordingly, there will be an order dismissing paragraph 1 of the father’s Amended Application in a Proceeding sealed 22 February 2022.
The father’s Application in a Proceeding sought three other orders.
The last two of those orders sought, at paragraphs 4 and 5, that the father’s Amended Application in a Proceeding proceed on an ex parte basis and the matter be listed for trial within 7 days and that the conduct of the Child Impact Report earlier ordered in these proceedings be expedited from 16 and 18 May 2022 – are devoid of all merit and will be dismissed.
Paragraph 3 of the Amended Application in a Proceeding is an application that is not supported by any evidence in the father’s supporting affidavit and to which no submissions were directed. That application will also stand dismissed.
The mother in her submissions sought the father’s application be dismissed on the basis the application was vexatious.
As it remains true that the father’s application should have been also supported by material which the reasons of 14 December 2021 indicated were to be reasonably expected to be brought forward on the father’s behalf in any subsequent application by him and for the father to have responded to the call for “evidence” in relation to his employment, the Court considers the father’s amended applications have been without merit.
However, the Court will not, at this time, go so far as to find the father’s conduct in bringing the Application as being vexatious.
As stated above, the father complained in the course of his submissions that he was not directed to take responses from the psychologist. The father should now be aware that reports from those persons would be of assistance to the Court and, in the Court’s view, to the Independent Children’s Lawyer in considering any future application to be made by him.
In the circumstances an order shall be made to facilitate the provision of such material.
The wife by her Response seeks costs.
There is no evidence in the responding affidavit to support such an order presently being made.
As indicated in the Court’s earlier reasons of 16 February 2022, the assessment of costs requires evidence on the mother’s behalf as to expenses paid by the mother and in respect of which a costs order might be made.
In the circumstances, the Court will reserve the question of the mother’s costs of the Amended Application in a Case of 24 February 2022 and the Response thereto of 24 March 2022 and that any costs applications are to be dealt with in the manner set out at the commencement of these reasons.
For the foregoing reasons there shall be orders as set out at the beginning of these reasons.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 10 May 2022
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