Gillen & Lindo
[2021] FedCFamC1F 7
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gillen & Lindo [2021] FedCFamC1F 7
File number(s): CAC 2594 of 2019 Judgment of: GILL J Date of judgment: 2 September 2021 Catchwords: FAMILY LAW – CHILDREN – Independent children’s lawyer – Application for discharge of the ICL – Whether ICL 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) s 68LA Cases cited: Howell & Carter (No 2) (2017) 317 FLR 151
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 26 August 2021 Place: Canberra Counsel for the Applicant: Ms Clifton Solicitor for the Applicant: Enza Ruscica Solicitors Solicitor for the Respondent: Crampton Legal Counsel for the Independent Children's Lawyer: Ms Davis Solicitor for the Independent Children's Lawyer: Legal Aid, ACT ORDERS
CAC 2594 of 2019 BETWEEN: MS LINDO
Applicant
AND: MR GILLEN
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s Application in a Case filed 16 July 2021 seeking the discharge of the Independent Children's Lawyer (ICL) and appointment of a replacement ICL is dismissed.
2.In the event that a party seeks the costs of this application, that party is to file submissions in writing in respect of such, accompanied by a schedule setting out the costs sought and their basis, within fourteen days of this judgment.
3.In the event that a party resists costs as sought by another party, that party is to file and serve written submissions in respect of such within 28 days of this judgment.
4.The proceedings are otherwise listed before the Registrar for further directions on a date to be advised.
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 the pseudonym Gillen & Lindo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
These proceedings concern an Application in a Case filed by the mother seeking the removal of the current Independent Children's Lawyer (the ICL) in this matter, Ms Cruise. The mother's application is opposed by both the father and the ICL.
Each of the parties has filed a case outline document canvassing the various material relied upon and the case law that they each refer to.
The case outline for the mother listed the following documents to be relied upon:
(a)Initiating Application filed 13 December 2019 and Amended Interim Orders filed 2 March 2021;
(b)Notice of Risk of Applicant filed 16 December 2019;
(c)Response to Initiating Application filed 7 January 2020 and amended 15 March 2021;
(d)Notice of Risk of Respondent filed 7 January 2020;
(e)Child Dispute Conference Memorandum 23 April 2020 of Ms Davis.
(f)Affidavit of Mr Gillen sworn and filed 8 March 2021
(g)Affidavit of Ms Lindo filed 12 March 2021;
(h)Affidavit of Ms B filed 12 March 2021 and 26 April 2021;
(i)Affidavit of Mr C filed 15 March 2021;
(j)Submissions and Minute of Proposed Order of ICL filed 15 March 2021
(k)Respondent Mother’s Case Summary 16 March 2021 and 27 July 2021;
(l)Affidavit of Mr B filed 26 April 2021; and
(m)Affidavit of Ms Lindo filed 26 July 2021.
However, the mother restricted her reliance on the above list to the portions of those documents set out in the case outline, noting that it is not necessary otherwise to consider the content of those documents, save for the affidavits of the mother of 26 July 2021, of Mr C of 15 March 2021, Ms B of 26 April 2021 and Mr B of 26 April 2021.
THE MOTHER’S CASE FOR REMOVAL
The mother asserts that the ICL should be removed on the basis that she has not complied with obligations imposed upon her by s 68LA of the Family Law Act 1975 (Cth) (“the Act”) which set out the role of the ICL. In particular, she asserts that the ICL has not complied with s 68LA(2)(a) and (b) which is as follows:
(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.
It is further asserted that the ICL has not complied with her specific duties as set out at s 68LA(5), in particular s 68LA(5)(a) and (c).
(5) The independent children’s lawyer must:
(a)act impartially in dealings with the parties to the proceedings; 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 […]
While in oral submissions there was some criticism of the ICL in relation to failing to bring material before the court, it was ultimately accepted by the mother that this is not a case in which the ICL should be criticised for not bringing material before the Court as relevant material was prepared for the Court by the parties.
The criticisms of failures to comply with s 68LA constituted allegations of actual bias, apprehension of bias, failure to develop an independent view of the best interests of the child and failure to act professionally. However, they each revolved around a single factual premise. That factual premise was that the conclusion articulated by the ICL in her submissions as filed with the Court on 15 March 2021, incorporating orders that provided for the father to immediately transition from supervised to unsupervised time, were so at odds with the evidence available to the ICL that they indicated either that she was biased, or that a reasonable apprehension of bias arises, or that the view formed was not independent, or that the view formed reflected in no manner the exercise of proper professional judgement in relation to the case. That is, the application of the mother was reliant wholly upon the conclusion expressed in the ICL's submissions rather than upon other conduct engaged in by the ICL.
The heart of the proposition raised by the mother was that her evidence and the evidence of her supporting witnesses and evidence contained in subpoenaed material and material produced pursuant to s 69ZW of the Act point to the conclusion that the father in these proceedings has engaged in serious family violence against the mother, against the child the subject of the proceedings and against two previous partners. Accordingly, it is asserted, the nature of that evidence means that insofar as the best interests of the child require the protection of the child from risk of harm occasioned by being exposed or subjected to family violence, the ICL's position that there should be a move to unsupervised time formed an egregious departure from her obligations to pursue the best interests of the child.
REMOVAL NOT JUSTIFIED
It may be accepted that the case brought by the mother alleges serious family violence on the part of the father. It may also be accepted that although at an interim stage of the proceedings, and although the father contested at least the accusations made directly by the mother, that the mother’s case has support from the evidence of Mr C, Mr B and Mr B’s father. Further support flows from a prior conviction of the father for assault and the making of an apprehended violence order against him. However, it must also be acknowledged that the ICL is called upon to discharge her functions in a context of factual uncertainty. She is also called upon, in exercising her independent judgment, to do so in a legislative context where the considerations often point in different directions, particularly the primary considerations. It should be acknowledged that even where determinations made within this context are made judicially, as distinct from the exercise of professional judgment required of an ICL, case law emphasises that the one set of facts leads to no single correct answer. It is within this context that the criticisms are levelled at the ICL.
The mother’s complaint and application to remove the ICL is ultimately based on two matters. The first is that the ICL should be assessed on the basis of the outline of case and proposed orders filed on 15 March 2021. The second is that on assessing the outline of case and proposed orders what is revealed is an egregious departure from the ICL’s duties.
Before undertaking that assessment the litigation context must be closely considered. Orders were made on 4 February by Judge W Neville listing the matter before Senior Registrar Evans on 17 March 2021, with a case outline to be filed by 14 March, limited to 2 pages in length. The ICL was late, filing her case summary document at 8:12am on 15 March. This was, however, prior to the filing of Mr C’s affidavit, and shortly after the filing of the affidavit of Mr B. It was also in the absence of a case summary being filed by the mother at all. The ICL complied with the restriction as to length, and it should be recognised that at best this document was a summarised version of a position to be put to the court. Even at the time of its filing it could not be taken to fully represent the ICL’s consideration.
That hearing was adjourned to 29 April 2021, which was shortly preceded by the mother filing the affidavit from Mr B’s father. No further outlines of case were filed. This left the competing cases between the parents as to supervision in the interim, while on a final basis the mother then pursued orders transitioning to unsupervised time for the father (contingent upon certain matters).
The mother submits that she anticipated that the ICL continued to hold the view that supervision should be brought to an end particularly in the light of the fact that the ICL had not filed an updated outline of submissions. However, the circumstances leave the matter less than clear as to whether or not, as anticipated by the mother, the ICL adhered to the position attributed to her.
The mother produced the transcript of those proceedings (the mother’s affidavit filed 26 July 2021, Annexure E). Although they involved the Senior Registrar noting that the ICL supported the father’s move to unsupervised time, and gave a preliminary view of the Senior Registrar as contra to that position (Transcript 29 April 2021, p. 5), the ICL was not called upon to advise whether such remained her position. Rather, the matter was stood down for a period, after which the ICL advised the court of a consent position by which the father would not pursue the change to unsupervised time. The ICL implicitly supported such an outcome in advising the Court of such (Transcript 29 April 2021, p. 7).
It is at this point that the first contention, being that the ICL maintained the position set out in her outline on either listed date, must be assessed. It is true that the ICL filed no update of outline. No party did. No directions provided for such. Further, the ICL’s outline was prepared prior to the affidavit of either Mr C or Mr B’s father. The next step following the filing of her outline was the ICL advising the court that there would be no move to unsupervised time, which, as noted, was implicitly accepted by the ICL.
In short, it is unfair to judge the ICL as at either date on the basis of the outline of case document, as though she had irrevocably bound herself to that position, regardless of the further evidence that was coming in.
However, even if the outline of case reflects accurately the position to be taken by the ICL before the Senior Registrar, that is not a matter sufficient in this instance to warrant the removal of the ICL or to indicate that the ICL was seriously in default of her obligations pursuant to s 68LA.
That default was identified as acting contrary to the child’s best interests, being one of the matters described by Holden CJ in Lloyd & Lloyd and Child Representative (2000) FLC 93-045 as justifying the removal of an ICL (at [11]):
Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
Here what is asserted to be contrary to the child’s best interests is the ICL’s position that her time with the father should be unsupervised. It is a criticism of the exercise of objective professional judgment.
What is necessary to bear out this criticism is that the position taken by the ICL be so clearly unreasonable to be no exercise of the ICL’s role. That is an inherently difficult position to make good where, as here, there are considerations that point in either direction. There are considerations that point to the benefits of a move away from the artificial confines of supervised time, and considerations toward the maintenance of supervision as a protective measure. These were matters ostensibly weighed by the ICL in her case outline, to reach a conclusion that differed from the mother’s. It may, in due course, differ from the ultimate determination of the case. Similarly, it may in due course differ from any further position articulated by the ICL. However, that does not render it amenable to the extreme criticism brought against it which is essentially a criticism of the manner in which the ICL weighed competing considerations in forming a view as to best interests.
While the criticism was also clothed in claims of actual or apprehended bias, the position taken by the ICL does not demonstrate such. Like Judge Wilson (as his Honour then was) in Howell & Carter (No 2) (2017) 317 FLR 151, I doubt, for the reasons advanced by his Honour (at [50]ff), that principles in relation to bias are directly applicable to an ICL. The obligation upon an ICL is as to impartiality, but not so as to exclude an ICL forming views of the case and the best interests of the child prior to the full presentation of evidence. Even if this is wrong, the position taken by the ICL is not so extreme as to evidence bias, either actual or apprehended.
Accordingly, the mother’s application to discharge the ICL is without justification and will be dismissed.
COSTS
The parties sought that the issue of costs be dealt with by written submissions following the handing down of judgment. Orders will accommodate such an approach.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 2 September 2021
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