FOX & KENT

[2015] FCCA 2143

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOX & KENT [2015] FCCA 2143

Catchwords:
FAMILY LAW – Discharge of Independent Children’s Lawyer due to multiple failures – failure to comply with two orders to update Family Report – Orders put forward by ICL inconsistent with single expert psychiatric recommendation – potentially place children at unacceptable risk.

Legislation:

Family Law Act 1975, s.68LA

Applicant: MS FOX

Respondent: MR KENT

File Number: CSC 245 of 2013

Judgment of: Judge Willis

Hearing date: 13 July 2015

Date of Last Submission: 13 July 2015

Delivered at: Cairns

Delivered on: 13 July 2015

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Self-represented

Counsel for the Independent Children's Lawyer: Ms Lawrence

Solicitors for the Independent Children's Lawyer: Ms Sinclair

ORDERS

1. Leave is granted to the Independent Children’s Lawyer to provide a copy of the tender bundle to the parties. Each of the parties are restrained from copying or using outside of this material outside this litigation. 

2. The Mother spend supervised time with the children X born (omitted) 2007, X born (omitted) 2009 and Y born (omitted) 2010 (“the children”) is to be supervised by Ms P on Saturday 18 July 2015 from 9:00 am to 1:00 pm.  Changeover is to occur to and from the contact centre. 

3. Thereafter, the Mother is to spend supervised time with the children at the (omitted) Contact Centre on times as can be accommodated by the Contact Centre unless there is agreement between the parties and the Independent Children’s Lawyer with a proposed supervisor.   

Independent Children’s Lawyer

1. That the Independent Children’s Lawyer, Ms Sinclair is discharged and it is requested that Legal Aid Queensland arrange a replacement Independent Children’s Lawyer without delay. 

2. A copy of Reasons for Judgment is to be provided to the Independent Children’s Lawyer. 

3. The Independent Children’s Lawyer is to file a Notice of Address for Service within 7 days of being appointed.

4. The parties are to each complete and return the Independent Children’s Lawyer’s questionnaire within seven days of receipt.  In the event there is a Solicitor representing the party, the Solicitor for the party is directed to forward the questionnaire to their client within 48 hours of receipt. 

5. Within 7 days of being appointed, the Independent Children’s Lawyer is to confirm with the Court in writing that they have each of the parties’ telephone number, email address and postal address. 

6. A copy of the transcript of the Mother’s evidence is to be made available to each of the parties and the Independent Children’s Lawyer.

7. The Independent Children’s Lawyer is granted leave to provide the following to the Family Report Writer and to Dr K:

   (a)A copy of today’s transcript of evidence;

   (b)Filed material;

   (c)Subpoena material.

8. The current Independent Children’s Lawyer is to co-ordinate with the parties in relation to their appointments with Mr P which is scheduled in the first week of September 2015 until the new Independent Children’s Lawyer is appointed.   

9. The Independent Children’s Lawyer organise for the preparation of an addendum Psychiatric Report and each of the parties are directed to comply with all reasonable requests of the Independent Children’s Lawyer to attend and participate on the dates and times as requested in order for the preparation of the Psychiatric Report to occur.

10. The Father is to send to the Independent Children’s Lawyer within 7 days, a copy of all school reports.

11. The Mother and Father are to file and serve any updated Affidavit material within 7 days of the date of this Order.   

12. The matter is to be listed for mention on 8 September 2015 at 9:30 am in the Federal Circuit Court of Australia at Cairns. 

NOTATION:

A.THE COURT NOTES that the obligations of supervision have been explained to the supervisor Ms P. 

B.THE COURT NOTES the parties returned the Subpoena tender bundle to the Independent Children’s Lawyer at the conclusion of proceedings today. 

C.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Fox & Kent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 245 of 2013

MS FOX

Applicant

And

MR KENT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This reasons have been settled from the ex tempore reasons for judgment delivered on 13 July 2015.

2. This matter has been set down for a hearing today.  In accordance with this Court’s standard case management practice, I made orders for the management of this matter which has been in my docket since its inception. The Orders made ensure that the case is managed carefully and orders are made specific to this particular matter to ensure that it proceeds through the Court system as efficiently and expeditiously as possible and that it is ready for a final hearing if the matter does not resolve earlier.  This has been occurring in the Federal Circuit Court through judges managing their own dockets since the Court commenced in the year 2000.

3. This matter consists of a three-volume folder.  Many orders have been made. I have also appointed an Independent Children's Lawyer (ICL). There are some very serious issues at stake in this parenting matter primarily the health, wellbeing, protection and best interests of three young children aged eight, six, and four. X is eight, Z is six, and Y who seems to be known as Y, is aged four. 

4. There are serious allegations. Very serious domestic violence is alleged by the mother. Drug use has been alleged both ways and there are mental health issues. A psychiatrist Dr K has been appointed to prepare a report. Dr K has undertaken a very thorough assessment and report, as he always does. In that report Dr K has made some very serious observations about the mother likely having a personality disorder. He has made a recommendation that she has been a somewhat chaotic witness. In his view he said he had no alternative other than to say she has a borderline personality which likely has its origins in the mother’s unfortunate adolescence. It is clear that the mother had a thoroughly chaotic childhood. 

5. Dr K’s view was the mother ought to have only supervised time. The mother, he noted, had been involved with Department of Child Safety for a long period of time going back to her own childhood when she was living on the street, being in foster care, and other very unfortunate incidents have happened to her in a very unstable and unsafe environment. He has stated that, “I’m afraid, there is no alternative but to see her as having a significant borderline personality disorder”. 

6. In terms of the contact Dr K said in his report:

   “While we should not close the door to the possibility of this lady settling down and making a much more realistic contribution to her children, but keeping the whole picture in mind at this juncture, I can only say that I think she could only have supervised contact with the children and on a limited basis, and she must surely behave herself impeccably if it is to proceed beyond that. 

   I could not ascertain precisely how much time she has had with the children and so forth, but to summarise, she has a borderline personality disorder, she is only capable of having supervised contact with the children on a limited basis, as long as she behaves herself appropriately and reasonably.  I think she is well-intentioned and cares for the children, but I think her background – it is difficult for her to be an effective, and competent, and reliable, and responsible parent.”

7. A Family Report has been prepared in this matter by a Brisbane-based Family Report Writer who flies into Cairns and does a schedule of interviews at the (omitted) Centre.

8. In the process of my case managing this matter, I have made orders to prepare for today, namely, the final trial.  I made Orders on 6 August and again on 12 November 2014, two separate occasions for the ICL to organise for an updated Family Report prior to the trial. I have also made an order for the parties, which of course includes the ICL, to provide all of the updating material to the Psychiatrist and the Family Report Writer.

9. At the commencement of this final hearing today, being a Monday, as is not unusual with self-represented litigants, the mother sought to file material which she had made an attempt at completing. The father, who is also self represented, filed some material on Friday.  

10. A couple of weeks prior to today’s date, my associate conducted a compliance check and, for the record, managed to get hold of both the mother and father using their telephone numbers. 

11. I mention this as at the beginning of today’s trial, I was told by Ms Lawrence, Counsel for the ICL, that the Family Report, contrary to two Orders, was not updated because the ICL “couldn’t get a hold of the parties”. Ms Lawrence told the Court that the ICL didn’t wish to say how she had got the mother’s phone number, but she had managed to get a hold of her only on the weekend.

12. Each of the parties are self-represented. One can see that it is particularly important that the ICL carry the weight of putting the evidence before the Court, which is one of the obligations that an ICL has. The ICL’s duties in a children’s matter are set out in what used to be a protocol about the appointment of Independent Children's Lawyers and about their role and to ultimately with changes to the Act those guidelines have metamorphosed into section 68LA, the role of the ICL.

13. Upon reading through that Section I note that the ICL duties include that the ICL must form an independent view based on the evidence available; the ICL must act in relation to the proceedings in what the ICL believes to be the best interests of the child; the ICL 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 adoption of that action and the ICL is not the children’s legal representative and is not obliged to act on instructions.

14. The section continues that the ICL must act impartially in dealings with the parties in proceedings; ensure that any views expressed by the child in relation to matters to which these proceedings relate are fully put before the Court; if a report or other document that relates to the child is to be used in the proceedings, they are to analyse the report or other document to identify those matters in the report or other document that the ICL considers to be the most significant ones for determining what is in the best interests of the child, and ensure that those matters are properly drawn to the Court’s attention. The ICL is to endeavour to minimise trauma to the children associated with the proceedings and facilitate an agreed resolution of matters at issue in the proceedings to the extent which, in doing so, is in the best interests of the child.

15. At the commencement of the trial, after Ms Lawrence of Counsel for the ICL informed the Court that the Family Report had not been updated, she indicated that obviously the matter could not proceed to a final hearing today given the state that the evidence was in. Ms Lawrence continued that there have been orders circulated by consent and that there are some other options. As requested I stood the matter down, noting that the ICL was going to explore with each of the parties these “other options”. At this time, the mother rose to her feet disputing that she had been uncontactable and that she had herself tried to contact the ICL on several occasions about following through with the Orders for a follow up Family Report. The mother said that she received no return calls from the ICL.

16. As the transcript will show, I have tried to conduct this trial, given the very limited material from each of the parties. I have to say that each of them are self-represented and in my view each of them have made an effort to comply with what they understood their obligations to be in terms of filing updated material, albeit they were both late in doing so.

17. The father says he has been a bit overwhelmed and I do not have any doubt that the mother has been a bit overwhelmed and that is why in an ICL situation it is critical that they follow through with their duties and responsibilities. 

18. After a period of time had passed, I was informed that the parties were ready to return to Court and that they had Consent Orders. I had earlier indicated that I would wish to take some evidence from the mother to update her position to progress the matter. Ms Lawrence asked whether I wanted that evidence before or after I looked at the Consent Orders. As the Consent Order draft was already prepared, it was handed up and the mother was sworn in and gave oral updating evidence under oath.

19. Ms Lawrence took the mother through some updating evidence and I also asked her questions. I have heard the mother’s evidence in response. I have read the Consent Orders.

20. The orders which were handed up by the ICL Counsel, provided for one more day of supervision for the mother and then the orders moved to unsupervised time. As it now turns out, I am informed that these orders were it seems, being circulated on the weekend by the ICL. The ICL decided that by the weekend, having not spoken to the mother for months, she would ring the mother.

21. The orders that were given to me were initially a little hard to understand and the wording did not make it clear to me that there was to be only one more day of supervision. The orders read:

    (1)From the date of these orders, for a period of four weeks, on each Saturday from 9 am till 1 pm, with the first such visit to be supervised by the paternal grandmother.

    (2)And then on a three-weekly rotation, with week 1 with the children from 9 until 4 –

    so a whole day –

    and in week 2 with all three children from 9 until 2, and then in week 3 no time, with the arrangement as it was originally given to me in order 4. 

22. Initially I took it that there would be supervised time outside of the contact centre until further order, however, I am informed that the intention of the orders and the actual words state that there is one period to occur this week only, namely this Saturday to be supervised by Ms P and thereafter there is to be no supervision.

23. This, of course is in direct conflict with the single expert independent psychiatric expert’s views. The psychiatrist’s single expert report also made it very clear that to move away from supervision, “she must surely behave herself impeccably”. The psychiatrist is most concerned about the mother’s chaotic life style and lack of stability in the context of her personality disorder.

24. I am very surprised that without having the independent psychiatric expert available to give evidence at all or to confirm that he has now changed his view that the proposed orders provide for no further supervision. Also, given the evidence of the mother which is entirely contrary to her being settled and behaving impeccably, I am again taken aback by the terms of the Final Orders submitted by the ICL. This is in addition to the Court not having the benefit of an updated Family Report which I have twice ordered. 

25. As I have said, I have learned that that order was actually being circulated on the weekend. Although I have tried to run a trial of some sort today, I find that I am not able to do so given the lack of an updated Family Report and other missing evidence that I would consider fairly basic. Also there is no evidence from Dr K to say he has changed his mind. I suggested trying to get a hold of Dr K today, however, I have been informed that he has not been contacted by the ICL and is not aware the trial is on.

26. I also find that I am not in a position to make the Consent Orders handed up to me, nor do I understand how the ICL could put up Orders recommending that the child now be in the unsupervised care of the mother given the state of the evidence. The ICL is to act on evidence, not feelings or her own views.

27. I have been most alarmed by today’s events and the failures of the ICL to do what the Court ordered, so much so that I have asked through Ms Lawrence the ICL Counsel, for her to tell me why I ought not discharge the ICL, given what I have heard about her failure to comply with orders to prepare this matter properly and given the handing up of orders which are not in line with the evidence and which are surely not in the best interests of these three children.

28. Ms Lawrence of Counsel responded by asking for time, a few minutes to go through things with the ICL and take some instructions. On my return to the bench, Ms Lawrence has advised the Court that -

    “My role in this matter is one where I am engaged by the ICL to consider broadly speaking best interests of the children and the evidence. What Your Honour has asked me to do is speak for the ICL in a potentially very complicated matter. I am in a position where I am faced with an intractable conflict and I am not able to make those submissions to Your Honour this afternoon. I am the advocate for the ICL, but not in the role that Your Honour has asked me to appear.  I cannot make submissions I am afraid.”

29. I have therefore given the opportunity to the ICL Ms Sinclair to speak on her own behalf, as she is in her own right an experienced advocate. The ICL tells me that she did decide to ring the mother on Friday prior to the trial. It seems she sent the Consent Orders to the mother at that time via email.  

30. On asking the father, what submission he wished to make about the removal or otherwise of the ICL, he said that he thinks “she’s an awesome ICL because she took bought the documents out to my home on a Sunday, yesterday”. The document was a copy of the proposed consent orders.

31. Unfortunately the mother hasn’t had the same “awesome” experience with the ICL. The mother told me again that she has made calls to the ICL but they have not been returned. The mother had an email sent to her with consent orders and that was it. The mother said that she came to Court today not thinking that anything was going to happen. The mother who was most distressed, was hoping to move away from the supervision which she has had in place for some time.

32. The mother told me that she rang the ICL months ago to see what was happening about the updated Family Report and that no one returned her call. I have asked the ICL if this is so. The ICL can’t tell me if that happened, as she said she needs to look at her electronic file, and having done so for some small amount of time, isn’t able yet to tell me if that is so or not.

33. The psychiatric evidence in children’s matters where either or both parties suffer a psychiatric condition is a vital consideration in determining the best interests of a child or children. As I have said, the psychiatric evidence says that the mother ought not to move away from supervised until she has shown a considerable period of being settled. The oral evidence that I suggested be obtained from the mother today, to update the Court, was anything but reassuring that the mother had settled down. That evidence was to the effect that the mother has another child, A (the mother says that there are (omitted) in A).

34. There was oral evidence from the mother that the Department of Child Safety were involved with the mother regarding the arrival of A and the Department being immediately involved at the birth of A. The Department were concerned that the young baby A was going to be harmed through the mother’s ongoing drug consumption and further that that drugs consumed by the mother would be transferred to the baby A through breast feeding. The mother says that the Department are now not having any more involvement and that from their perspective it is all good, essentially. 

1. I do not have that evidence before me because the ICL has not issued a subpoena to the Department of Child Safety to give me all the updating evidence as of the time of trial. I can see some subpoenas were issued back on 9 June 2015 by the ICL, for instance, to the Queensland Police. Even that did not go as it should. That subpoena was then returned with a complaint by the Police that by the time it was served, they were not given 10 clear days as is required, to comply with a subpoena. Then it was issued again on 29 June 2015 and was to be returnable today at 4:00pm. The material is not here today at 4:00pm. 

2. The ICL is not able to tell me however, when that second subpoena was served and it may be that once again it has not been served in time for the police to comply.

3. I do not have before me the update from the Department of Child Safety because that subpoena was issued by the ICL on 7 July 2015 last Tuesday. Even if it was served on the same day, that is not going to be enough time for compliance.

4. Similarly, I do not have the material from the Department of Education. That update was also issued on 7 July 2015 and I do not have that material before me. Ms Lawrence of Counsel told me this morning that the mother said that the Department are not involved anymore and that must explain why there is no material. With respect, it does not explain it. What explains it more is the late issuing of the subpoena itself.

5. The mother, in this period of time since having her new baby in (omitted) last year gave evidence that she has ended her relationship with the father of A and the police, she informs us, took out a Domestic Violence Order for her protection. The mother tells the Court today that since then she has a new male friend who sometimes sleeps over and they hang around together from time to time. The mother says there is another person with whom she had a serious altercation recently and once again, the police have taken out a Domestic Violence Order for the mother’s protection. 

6. I note that I made an order earlier in these proceedings in terms of the mother getting advice and counselling about being in domestically violent relationships. At the same time I made an order that the ICL is granted leave to discuss the mother’s ongoing support with Remote Area Aboriginal and Torres Strait Islander Advisory Association. That was in conjunction with the order that I made for the mother to forthwith attend domestic violence counselling in an attempt to educate herself about domestic violence. Today I have asked the ICL if that order was complied with, and she is not able to tell me. 

7. I have already made an order for the ICL to issue more than five subpoenas and I made as I said, orders for the material to be updated prior to the trial on two separate occasions. So the mother’s experiences going backwards from today’s date over the last 12 or 15 months has been that she has ended one relationship, started another, been involved in two further domestic violence orders; had a new baby which the Department of Child Safety were involved in; and the mother candidly admitted that she has lapsed and again taken methamphetamines when A was only just born. This is not what I would understand to be “impeccable behaviour” as referred to by the psychiatrist single expert nor would I regard the situation as being “a very settled presentation”. 

8. With drugs, domestic violence and relationships breaking down, it is difficult for me to understand the basis of the proposed consent orders. What is most critical, of course, is there ought to have been an updated family report and, of course, an addendum from the psychiatrist.

9. I made orders in preparation for the trial, as I said, that each of the parties provide their updating material to the experts prior to the trial so that the experts did not have to read it all in a rush. As it turns out, the ICL has not even lined up the psychiatrist to appear at this trial. The Family Report Writer was organised to give evidence albeit there is no compliance with orders for an updating report and advises he is only available tomorrow, by phone of course. In my view, it is quite a pointless exercise in lining him up for tomorrow - to have him do what? 

10. His Family Report made it very clear that it was impossible to make final orders in this matter and that each of the parties have got a long history of involvement with the Court, the State, the community resources, continuing involvement with the police and Department of Child Safety and that he formed an opinion that final orders would not be advisable or even practical or in the children’s best interests. However, a subsequent review of six to eight months appears appropriate. No review has ever occurred.

11. In the meantime, the welfare of the children requires and he recommends the children be placed with their father as the primary carer and further and specific opportunity be prescribed by order for mediation to occur between the parents to determine the appropriate contact regime until further review. Having read Mr P’s reports for at least the last 15 years, I note that he routinely concludes his reports with a suggestion that the “matter should be reviewed”. In this matter he says it was impossible at that stage to make final orders. 

12. As can be seen by the previous observations of the Report Writer and of those preparing the child inclusive conferences, the wellbeing of the children being in the care of the mother very much depends on the mother actually being drug free and psychiatrically well. The mother has given evidence today that she has not attended upon anyone for a while, as in a psychologist. She has given up some of her medication. She had difficulties with that. As I understood her evidence, she is not seeing anyone regularly right now. I can see that, as I said, her wellness is very much determinative of how orders should be structured. 

13. In the orders I was given today to make, there was no reference to any of the previous and recent two violent partners in the orders, such as restraints from the children being exposed to violence or those partners. As I indicated to the ICL Counsel, what is the plan for the children when the mother, having unsupervised time, brings both these children into contact with her two most recent violent partners? The response indicated that this had not been considered to that point in time.

14. Overall, at the end of a long day, having tried to at least make interim orders I had to accept at the outset that there were not going to be any final orders because apparently the mother, according to the ICL, could not be contacted and therefore the two orders for the updated report could not be complied with. Now at the end of the day, I am not even satisfied that proper efforts were made to contact the mother.   

15. Given what the mother said about not having her phone calls returned by the ICL, I have asked the ICL to give me the phone number that she has for the mother. It is one and the same phone number that the mother uses today. It is the same phone number that the Court used to connect with the mother at the compliance hearing two weeks ago when the mother said she would try and file some material. The father said he would do this too.  

16. I can see that the mother has been astute in filing a notice of address for service when she lost her legal aid solicitor. The mother filed on 4 December 2014 a notice of address for service giving both her home and mobile phone numbers and email. And, again before that on 11 November 2014 she filed another notice of address for service giving her telephone number and again, her email and her address for service, being (omitted). For reasons which remain unexplained, the ICL said that it did not occur to her to ring the mother when she alleges she “could not get a hold of her”.

17. She did not use the email to contact her either it seems, until this last Friday or Saturday on the weekend just passed. The ICL said she did send a letter to the mother in May this year asking her what her proposals were and the ICL said that the mother did not reply. On asking the ICL what address she sent the letter to, the ICL advised the Court that it was sent to an address at (omitted). On hearing this address the mother said she has never lived there. The father confirmed that the mother has never lived there and neither has he. The mother’s address and phone number and email has, at all times been sitting in the file. 

18. The ICL tells me she made a lot of effort to get a hold of the father and spoke to the father’s solicitor on a few occasions when she saw him around the Courts about what the father’s intentions were, particularly when he was going to be unrepresented. The ICL said she then contacted the father directly to ensure that he was being included in this and that he knew that his legal representation might fail. I have to say that from where I am looking on, it seems to me that the ICL has been giving lopsided assistance to the father in this matter.  

19. As for the ICL telling the Court that she was not able to comply with orders because in her view, the parties were not going to file material and she did not know if they would turn up, that decision was in my view not only poor judgment, but it was a position that ought never to have been adopted by the ICL. I indicated earlier to the ICL, is that if an ICL is ordered to do something procedural and noting that they are actually a party to the proceedings and therefore they are just as accountable as any other party to comply with orders, it is not for the ICL to decide solely at their discretion that the orders of the Court will not be followed. 

20. I understand that there may have been and sometimes there are excellent reasons why an order for an ICL to take some action has become somewhat impracticable because someone has disappeared, become uncooperative, relocated or something like that occurs. The proper course is for the ICL to contact the registry and have the matter listed and indicate to the Court and the parties what the difficulties are and then the Court and the parties will sort those difficulties out. This has been all left too late and it seems to me that there has been a mad rush on the weekend to try and have some interim orders come up as a stopgap measure. 

21. As I said, I simply do not understand why these orders that I have made (first on 6 August 2014 and again on 12 November 2014) have not been complied with. I have cross-checked the phone numbers, I have looked at the notices of address for service that are on file. The mother’s material also has on all her affidavits throughout this year and last year her phone number and at times, her address. I am not satisfied that the ICL’s advice to the Court that she could not get a hold of the mother is accurate. Also unexplained is why the ICL wrote to the mother at an address that neither party can identify or understand where it came from. One would have thought an email or a phone call would have been the way to go. The Court, as I said, has phoned the mother without any trouble for the compliance check.

22. The subpoenas for police are not here and they ought to have been. An updated report ought to have been here. There have been failures in serving the police subpoenas. The Department of Child Safety records are not here. 

23. The role of the ICL is a serious role. It is akin to Counsel assisting at an inquiry. In these matters, with drugs, alcohol, abuse, troubled and impoverished childhoods, psychiatric conditions, the forensic reports are critical. There is no excuse explaining these failures that I am prepared to accept. I do not understand why this has not been pulled together in a better fashion by the ICL. It is not for the ICL to determine that parties will not turn up and whilst I accept that the ICL says she “didn’t want to waste money” it is not for the ICL to determine these matters alone. How much money has been wasted today in Legal Aid fees for the ICL, Counsel and Court time which ought to have been allocated to other parties? 

24. The parties have each attended Court for their final hearing as they said they would at the compliance check. They have done their best in filing their own material. I could have continued today with a final hearing on simply updating the father’s and mother’s material, if the ICL had attended to the forensic gathering of evidence as required.

25. The reason I have not been able to make final orders, or even interim, is because of the failure to have a Family Report and to have Dr K on standby and to have updating material given to them. Dr K is not even contactable today. The failure to also have the updated subpoena material which would reveal the violent incidents that the mother has unfortunately been involved in and the material from the Department of Child Safety is also a fatal failure.

26. The proposed orders also show, in my view, some serious shortcomings. Given what the evidence is, I am left wondering and hoping that this was not just going to be a quick resolution to mask the failures. The mother, as I said, had two violent partners. She regretted resorting to serious drug use, namely amphetamines, last year. The police records are not updated. The Department of Child Safety are not updated. No family report, as ordered twice. Psychiatrists were not given notice; and he does not even know these things are happening, and there is no further forensic to evidence to give him. 

27. Overall, I have to say that the Court is profoundly disappointed with the inactivity of the ICL in this matter. Moreover, the Court considers that the ICL on this occasion has not acted in the fine tradition and exemplary standards expected of those vested with the responsibility of representing children which is usually seen in the ICLs doing this work. I am also troubled that there is a perception that the ICL has not assisted the mother as much as she has assisted the father.  That perception understandable, given what I know of the history of this matter.  . I do not consider in this instance that the ICL has done all that was required in representing the best interests of these children. 

28. The ICL is lucky, in my view, that these parties are not legally represented. I say that because today has been an utter waste of time.  If either had been legally represented, I would have heard applications as to why (as has happened before in this Court and only very recently) the ICL who has not complied with their duties through her own failures, ought not pay the costs thrown away. As it is, other than making an order for supervision away from the Contact Centre on a particular Saturday, there is almost nothing that has been achieved. 

29. Regretfully, I do not have confidence that the ICL will follow through with the future orders. Regretfully on this occasion, I find no alternative other than to discharge the current ICL and request Legal Aid be contacted to issue a replacement ICL. These children deserve better representation and the Court is entitled to expect the obligations of an ICL to be taken more seriously.

30. I intend to make copies of these reasons available to Legal Aid Queensland. I wish another ICL to be appointed without delay. I will organise for a copy of the transcript to be made available to each of the parties and the new ICL regarding the evidence in chief given today by the mother.

31. I have to apologise to the parties about this very unsatisfactory state of affairs.

ORDERS DELIVERED

1. Other than that I am leaving things as they are. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate:

Date:  10 August 2015