HEATH & PASCALL
[2019] FCCA 2896
•10 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEATH & PASCALL | [2019] FCCA 2896 |
| Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Mother seeks discharge of current Independent Children’s Lawyer and a new Independent Children’s Lawyer be appointed – four day final hearing less than two months away. |
| Legislation: Family Law Act 1975, s.102NA(1)(c)(iv) |
| Cases cited:: Dickens & Dickens [2016] FamCA 115 |
| Applicant: | MR HEATH |
| Respondent: | MS PASCALL |
| File Number: | BRC 8029 of 2018 |
| Judgment of: | Judge Spelleken |
| Hearing date: | 30 September 2019 |
| Date of Last Submission: | 30 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 10 October 2019 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| The Respondent appeared on her own behalf |
| Counsel for the Independent Children’s Lawyer: | Ms Carmody |
| Solicitors for the Independent Children’s Lawyer: | Ms Chan of Legal Aid Queensland |
ORDERS
That within fourteen (14) days of the date of this Order, the father is to provide the mother with copies the emails sent by him to X’s day care centre and to the Independent Children’s Lawyer.
That the application filed by the mother on 14 June 2019 for the Independent Children’s Lawyer to be discharged is dismissed.
That the Independent Children’s Lawyer is to issue a further subpoena to the C Contact Centre with the documents to be produced prior to the final hearing of this matter.
IT IS NOTED that publication of this judgment under the pseudonym Heath & Pascall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8029 of 2018
| MR HEATH |
Applicant
And
| MS PASCALL |
Respondent
REASONS FOR JUDGMENT
The Court is asked by an application in a case filed on behalf of the mother on 14 June 2019 to, amongst other things, remove the independent children’s lawyer, Ms Chan, and to replace her with another independent children’s lawyer. I will deal with that application later in these reasons, however I note that the mother sought other orders in her application in a case including an order that the father provide her with the birth photos via phone. The father, when the matter was before the Court on 30 September 2019, had a USB stick with the birth photos attached and I directed that the father provide those to the mother, which he did, and she accepted same. She raised an issue about whether all of the photos were on the USB stick however I informed her that after viewing them, if she had a concern that photos had been deleted or not provided, she could raise those concerns at trial.
Another order sought by the mother is that she have sole parental responsibility for X, who is now approximately 18 months old. I explained and the mother, to her credit, accepted that that is an issue for trial.
I pause here to record that the final hearing of this matter is listed for four days commencing on 18 November 2019. I also note that on 30 September 2019 I made orders pursuant to section 102NA(1)(c)(iv) that the applicant mother and respondent father not be permitted to personally cross-examine the other parent and notices were issued to that effect to Legal Aid.
The mother also asked for disclosure including access to her iTunes account or text messages dating back from 2015 to 2018, a copy of emails from the father to the independent children’s lawyer and to the child’s day care centre, and that a subpoena be issued to the C contact centre.
In terms of disclosure, I am unsure as to what the mother refers to in relation to her iTunes account and why that is something that the mother cannot access herself. Hopefully, with the benefit of legal representation which the mother will shortly receive, that may be an issue that can be resolved as between her lawyer and the father or the father’s lawyer if one is engaged on his behalf or as a result of the section 102NA order I made on 30 September 2019.
I will make an order that the father within fourteen days of receipt of this order provide copies of the emails sent by the father to X’s day care centre and that he provide copies of emails provided to the independent children’s lawyer.
In relation to a subpoena to the C contact centre, I accept that the documents from the contact centre may be of assistance to the Court at the trial. It is not clear why the independent children’s lawyer has not served that subpoena if she hasn’t already. Inquiries of the independent children’s lawyer via my chambers have indicated that it was issued by the Court on 14 January 2019 but that the documents have not been produced..
In those circumstances, I will direct the independent children’s lawyer to issue a subpoena to the contact centre and for those documents to be produced to the court prior the commencement of trial in the matter.
The Law
In relation to the removal of the independent children’s lawyer, there is much authority that has addressed this issue over an extended period.
When discussing the Court’s power to discharge an order for the appointment of an Independent Children’s Lawyer, Holden CJ in Lloyd & Lloyd and Child Representative[1] held:
[1] (2000) FLC 93-045 [11].
[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.
Later at [30] his Honour held:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
At [40] of Knibbs & Knibbs,[2] Murphy J held referred to the decision of Holden CJ and made the following comments:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
[2] [2009] FamCA 840.
Having considered both authorities, Justice Watts in Dickens & Dickens [2016] FamCA 115 stated the following:
[49] Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children's Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
Justice Watts later held at [52]:
[52] The test that I shall apply is that the father needs to establish that the Independent Children's Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children's Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41] – [61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children's Lawyer to argue firmly and fearlessly for what the Independent Children's Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children's Lawyer is in when fulfilling that role because it may be that the Independent Children's Lawyer is required to challenge the position of one or other of the parents.
The obligations discharged by the Independent Children’s Lawyer should not be taken lightly, particularly in a matter involving complex and multifaceted allegations with respect to verbal or emotional abuse. Moreover, the Court has urged on many occasions[3] this Court should be slow to discharge an Independent Children’s Lawyer based on largely unsubstantiated complaints made by one party.
[3] Lloyd & Lloyd and Child Representative (2000) FLC 93-045 [30]; Horner & Horner [2018] FamCA 487.
I find one of the principles enunciated by Justice Tree in Horner & Horner [2018] FamCA 487 to be particularly significant:
It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step they take.
In deciding to dismiss the mother’s application, I have considered the following documents:
(1)Application in a case filed 14 June 2019
(2)Affidavit of the mother filed 14 June 2019
(3)Affidavit of the mother filed 5 September 2019
(4)Written submissions read by the mother at the hearing of the matter, with copies of those submissions provided to the court and are now exhibit blank
(5)Order of 22 May 2019
(6)Report of Dr B filed 15 May 2019
(7)Report of Ms D filed 20 February 2018
(8)Addendum to Ms D’s report dated 17 May 2019
To summarise, I understand the concerns raised by the mother to support her application to remove the independent children’s lawyer include as follows:
(1)That the independent children’s lawyer is not acting in the child’s best interests;
(2)The independent children’s lawyer has failed to undertake her role properly;
(3)The independent children’s lawyer has not made independent decisions;
(4)The independent children’s lawyer has a conflict of interest, is not acting impartially and/or at arm’s length from the father and is biased against the mother.
The examples given by the mother to support her claims, as referred to in the paragraph above, follow.
The mother refers to a disagreement between her and the father with regard to the return of a USB stick which contained what the mother has referred to as birth photos, which I understand to be photographs taken at the time of X’s birth. The mother claims that the independent children’s lawyer told her she disagreed with her decision (the mother’s decision) to not accept the USB stick. As mentioned earlier, when the matter was before me on 30 September 2019 I directed the father to provide the stick to the mother, which he did and the mother accepted same and, as I understand it, will determine whether all of the photographs were contained on the stick and, if not, raise this issue again at trial. I do not understand how the independent children’s lawyer, however, was acting in any biased way or impartially by making a comment to the mother that she didn’t agree with her decision not to accept the stick. It would, in my view, have been a simple matter for the photographs to be handed to the mother via the independent children’s lawyer. I note the mother in her own case was not prepared to accept the stick from the independent children’s lawyer which did not make sense to me, particularly in circumstances where a request for the delivery of birth photographs was later taken up in her application in a case.
There are many references to emails being provided by the father to the independent children’s lawyer, by the father to the mother, by the mother to the father, and by the independent children’s lawyer to the parties, and in particular, the mother raises concerns that correspondence has been sent to the father and not copied to her and/or emails have been sent by the father to the independent children’s lawyer and she is not copied into those emails. There are also concerns raised about the mother requesting information from the father, such as in relation to the child’s attendance at day care, and the father failing to respond and the independent children’s lawyer in the mother’s view not acting promptly enough or constructively enough to obtain a response from the father to the mother’s queries.
In relation to requests made by the mother to the father for information, such as enrolment in day care and/or information to be provided to the day care centre and/or information requested of the father in relation to the day care centre, whilst I accept the independent children’s lawyer has some role in helping parties to navigate their disputes, I do not understand why it would be that the independent children’s lawyer was biased or impartial when she was asking the father to respond to requests made and information required by the mother of the father in relation to day care.
In this regard, the mother is also critical of the independent children’s lawyer because she says she sent an email to the father asking him to respond to various questions in relation to day care when the email should have been directed to her. Whilst I understand that the emails sent to the father in this regard asked the father many other questions that the mother had previously asked of the father, I do not accept that this was inappropriate or that the independent children’s lawyer was in some way stepping on the toes of the mother with regard to parental responsibility or day-to-day care.
Having read the annexures to the mother’s affidavit in this regard, it seems that the independent children’s lawyer was not only attempting to help the mother obtain information from the father in relation to day care but also to inform herself with regard to arrangements at the day care centre.
There is a complaint made by the mother that the independent children’s lawyer at one time wrote to her then solicitor and that it was inappropriate for her to do so. I note, however, that the mother’s solicitor was on the record as acting for the mother at that time.
The mother also complains that the independent children’s lawyer did not inform the Court when the matter was before me on 20 May 2019 that the child had commenced at day care. The mother considered that to be a sufficient change in circumstances and that I should be informed of that fact. I will refer later to the hearing on 20 May 2019 when I was asked by the independent children’s lawyer, based on the recommendations in the addendum report from Ms D, that X be placed in the father’s care. The proposal being made by the independent children’s lawyer, supported by the father and opposed by the mother at that time, in my view however, was not going to be decided nor would I have made a different decision to the one I made on 22 May 2019 based on the fact that X had started at day care.
Another concern was raised about the independent children’s lawyer and/or the father not providing the mother with an undertaking that was required from the paternal grandfather. It seems from the annexures to the mother’s affidavit, that the independent children’s lawyer did not send that undertaking for some weeks after it was provided to her and the Court. Whilst I accept that this is probably too long a delay, again I do not accept that it amounts to the independent children’s lawyer acting in a way that was biased towards the father.
Reference was also made in the mother’s material to the independent children’s lawyer allegedly telling her that she would need to ask the Court to keep her medical records, including records in relation to her mental health, private. Given the many arguments I heard, both when the mother was represented and not represented, in answer to her objections to the inspection of various subpoenaed documents directed to her mental health professionals, I agree that the independent children’s lawyer would have informed the mother it was a matter she needed to raise with the Court and not the independent children’s lawyer.
As mentioned earlier, there were many more than one notices of objection to subpoena filed by or on behalf of the mother, including three on 2 April 2019. These were objections to the release of subpoenaed records from a psychiatrist, Dr U, a Dr V and Suburb T Private Hospital. On 18 March 2019, further objections to subpoena were filed by the mother.
I heard the various arguments supporting the mother’s objections and made orders after hearing argument.
The mother also raised a concern about a subpoena that was directed by the independent children’s lawyer to W Clinic at Suburb Y, in that the mother and/or the child had never attended there. It is not clear why that error was made, but again I do not accept that it indicates the independent children’s lawyer acted with any bias, or impartially. It seems that she simply may have made an error. I note that no documents were produced in response to that subpoena.
As mentioned earlier a subpoena was issued at the request of the independent children’s lawyer to the C contact centre in January this year. An inquiry of the subpoena room indicates that no documents have been produced by the contact centre in answer to that subpoena. I am not sure whether it has been served. I note as mentioned earlier, however, the mother is able to issue a subpoena to the contact centre but I will direct the independent children’s lawyer do so.
The mother is sceptical and concerned as to the timing of an inquiry made by the independent children’s lawyer of her and the father with regard to their attendance at a parenting orders program and a reference to the father having completed the program. There is nothing in that request, in my view, that raises any concern and it is appropriate for the independent children’s lawyer to contact parties to inquire as to their attendance at programs and for drug testing and other assessments if they have been ordered by the Court or recommended by an expert. I note in this regard that an order was made for the mother and father to attend the program.
In a similar vein, the mother raises a concern about the independent children’s lawyer suggesting the use of an electronic communication book when advising this would be an appropriate method of communication so that there are no missing pages. The mother says that there are no missing pages in any book that the mother and father use to communicate with the other, but again this suggestion by the independent children’s lawyer does not raise any red flags as far as I can see.
The mother raises a concern about her compliance with an order made 29 August 2018, in particular, order 3 of those orders which having considered it, does, as the mother claims, require her to provide a copy of the orders made by the court that day to medical practitioners who have treated the child. The mother, quite rightly, inquired of the independent children’s lawyer as to how she might go about doing that. It seems that the independent children’s lawyer may have misread the order or did not read the order of 29 August 2018. The independent children’s lawyer in correspondence to the mother said that documents including reports and the like were not to be published. The mother’s inquiry, in my view, was an innocent one and an appropriate one. Again, it seems the independent children’s lawyer may have, as mentioned earlier, made an error in that regard. The mother is concerned that the independent children’s lawyer then asked her to provide the names and contact details of health professionals who have treated the child. It is not clear whether that was in response to the mother’s query about providing a copy of the orders to medical practitioners, but in any event, it is usual practice for an independent children’s lawyer to make inquiries of parents as to the medical practitioners attended by the parents and/or the children so they can make inquiries of those medical practitioners and/or direct subpoenas to those medical practitioners.
The mother was sceptical as to why the father uses two different email addresses and that the independent children’s lawyer has communicated with the father via his new email address. The father explained that he does have a new email address, but his old email address is still an address at which he can be contacted and that there is nothing sinister in having two email addresses.
The mother also raises the issue of the independent children’s lawyer and/or the mother providing to the court evidence of her preparedness or willingness to support the child’s relationship with the father. That will be a significant issue at trial as it was when the matter was before me on 20 May 2019 and no doubt the mother will provide her evidence to support her case in that regard and the independent children’s lawyer will provide any evidence that she believes is relevant to that issue. Of course, both the mother and father’s representatives will be able to cross-examine any witnesses produced by the independent children’s lawyer in that regard including, of course, Ms D.
The most significant of the concerns the mother raises, in my view, is what I might refer to as the skulduggery of – or what might have seemed to the mother to be some skulduggery on the independent children’s lawyer’s and father’s part when the matter came before me on 20 May 2019. The circumstances surrounding that hearing was that, as mentioned earlier, Ms D’s first family report was prepared some time ago in February 2018. At paragraph 256 of that report Ms D opines as follows:
In relation to X’s need for a meaningful relationship with both parents, it is assessed, at this stage, that Mr Heath has a more positive attitude towards X’s relationship with Ms Pascall, whereas Ms Pascall presents as a concern there is a risk of harm to X from Mr Heath’s behaviour.
She did not recommend that X move to Mr Heath’s care, but that she spend time with him on Saturday each week from 9:00am to 5:00pm.
The independent children’s lawyer was then ordered to arrange a psychiatric assessment by Dr B. That report is dated 10 May 2019 and was filed on 15 May 2019. The independent children’s lawyer then, properly in my view, provided a copy of that report to Ms D. I note at page 27 of that report, Dr B raises a concern about the reliability of his psychiatric evaluation given what he perceived to be the mother’s deceit and that deceit was in her view a significant feature in the mother’s accounts at various times. In addition to that deception he opined that there was inconsistency and contradiction in the mother’s answers to his questions. He provided some examples of same.
At page 28, (iii), he opined that the mother was in remission from any depressive illness. He went on to say:
The fact that she has recurrent major depression is, in my view, irrelevant to the current proceedings before the Court. All it means is that she is at risk of episodes in the future, whether in relation to adverse life events or independent events. It should be noted that this is a very treatable illness and, moreover, episodes can be prevented with pharmacological intervention.
In relation to the mother’s PTSD, he said as to whether the PTSD is continuing to affect the mother so as to prevent her working he was doubtful, but that he did not believe her PTSD, as such, was an issue with respect to her care of the child.
He also expressed the belief that the medication she was taking was unlikely to affect her capacity to be an effective parent, but it may be of benefit with respect to her overall functioning to gradually reduce the dose.
He went on to say that:
The principal clinical issue with respect to the mother relates to personality. That there should be personality vulnerability is unsurprising in light of the seriously adverse development history as emerges from the documentation. The personality configuration is complex. There appear to be obsessional traits with a need for control. There also appears to be emotional insecurity and problems of self-esteem. There are certainly narcissistic traits, and the issue of deceit suggests that there are antisocial traits. I note loss of driving licence, at one stage, through accumulation of demerit points, and there is also a reference to gambling being an issue at one stage.
He said, however, that:
The personality issues in the mother are not necessarily such as to impact significantly on her capacity to be an effective parent of a child of X’s age. The only issue here is to the extent to which she will encourage the child’s relationship with the father.
He then went on what he considered was a contradiction in the mother’s statements to him, namely that, on the one hand she indicated she was not opposing time with the father, but then cites safety issues as being the reason for restriction.
That report was provided by the independent children’s lawyer, as was appropriate, to Ms D who prepared the addendum report referred to earlier. In that addendum Ms D indicates that after reading Dr B’s report, she wished to amend her recommendations. She referred to comments made in Dr B’s report about the mother’s pattern of behaviour including deception, inconsistency, and contradiction and also a clear pattern of manipulation.
She was concerned about the information the mother was providing to X’s medical practitioners, and the mother’s capacity to trust the father.
She repeated her earlier view that the father was better able to support the child’s relationship with the mother, rather than the mother with the father, and that the mother’s attitude in that regard posed a risk of emotional harm to X.
Importantly, in relation to the hearing on 20 May 2019, she raised a concern for the potential for the mother to decompensate in response to reading Dr B’s report but particularly her addendum. She said, at paragraph 11:
X is a young child vulnerable to not just physical harm but also emotional harm. She is primarily in the mother’s care. An emotional impact on Ms Pascall will have an impact on X.
Given those concerns, she recommended that, on 20 May 2019 the Court make an Order that the child live with the father and spend time with the mother and that situation be reviewed in six months.
It is not unusual for an independent children’s lawyer, faced with a report making that type of recommendation, particularly when reference is made to a parent who reads the report to decompensate and in circumstances where it is being recommended that there be an immediate reversal of the living arrangements for a child to ask that a document not be provided to the parent about which the family report writer has concerns, until after a child or children are brought to the Court so as to protect the child from possible harm and to secure the handover of the child.
At the callover of the hearing on that day the independent children’s lawyer asked for the order to have the child brought to the Child Dispute Services I accept, possibly without explaining to the mother the exact reason for it. The mother, to her credit, did make those arrangements, and the child was brought to the Court.
Arrangements were made either by the independent children’s lawyer or at the request of the Court for the father’s family to care for the child or take the child to the Child Dispute Service of the Court that day – again, out of an abundance of caution – the concern being that the mother, once she understood what the independent children’s lawyer was asking the Court to do and/or read the addendum report, would remove the child from the Court.
For reasons that I gave both on 20 May 2019 and in my reasons of 22 May 2019 I was not of the view that the child’s living arrangements should be reversed, despite the recommendation of Ms D, and the child left that day with the mother.
I made it very clear to the mother, however, that I was greatly concerned that the child was not spending time with the father as had been ordered by the Court, that it was important that she ensure the child did spend time with the father, and that at trial, if I was satisfied that she had not complied with orders for the child’s time with the father and would not comply with orders for the child’s time with the father in the future and support X’s relationship with him, then I might consider reversing X’s living arrangements.
I understand that the mother may very well have been concerned, given that series of events, that the independent children’s lawyer was not being open with her and/or may have informed the father of her intentions, but not her, but in the circumstances explained above, I am satisfied that, at the time, the actions of the independent children’s lawyer were in the child’s best interests.
The mother complained that the independent children’s lawyer did not bring the report of Dr B to the Court’s attention on that day. The outcome sheet held by the Court however of the hearing on 20 May 2019 clearly indicates that the independent children’s lawyer did place that report before the Court, and I did read it, and, in many respects, it influenced the decision I made on 22 May 2019 not to reverse X’s living arrangements.
The mother seems to be concerned that because the independent children’s lawyer made an application for the child’s living arrangements to be reversed at the hearing on 20 May 2019 that she is fixed in her views in that regard and will maintain that position at trial.
I suspect however the independent children’s lawyer will file a case outline indicating that their position in relation to X’s living arrangements and time arrangements will be reserved until the conclusion at trial. Even if that is not the case it is still a matter for me to decide ultimately where X lives and the time she spends with her other parent after hearing all of the evidence at trial.
Another factor that I had to take into account, of course, is the delay that will be caused to the final hearing of this matter if another independent children’s lawyer has to take this file up from Ms Chan. The trial is in a matter of only weeks, and to delay the hearing, in my view, without good reason would not be in the child’s best interests.
For those reasons, I dismiss the mother’s application.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Spelleken
Date: 10 October 2019
3
5