HOGARTH & SCRIVENS
[2018] FCCA 3754
•17 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOGARTH & SCRIVENS | [2018] FCCA 3754 |
| Catchwords: FAMILY LAW – Parenting – Father’s application to discharge the Independent Children’s Lawyer due to perceived bias. |
| Legislation: Family Law Act 1975 (Cth), ss.68L, 68LA |
| Cases cited: Dickens & Dickens [2016] FamCA 115 Horner & Horner [2018] FamCA 487 |
| Applicant: | MR HOGARTH |
| Respondent: | MS SCRIVENS |
| File Number: | MLC 2643 of 2016 |
| Judgment of: | Judge Williams |
| Hearing date: | 15 November 2018 |
| Date of Last Submission: | 15 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Ms A Carter |
| Solicitors for the Respondent: | Wisewould Mahony Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Goddard |
| Solicitors for the Independent Children’s Lawyer: | Ebejer and Associates |
ORDERS
The Applicant’s application to discharge the Independent Children’s Lawyer is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hogarth & Scrivens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2643 of 2016
| MR HOGARTH |
Applicant
And
| MS SCRIVENS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child [X] born 2016.
The substantive litigation between the parties pertains to [X]’s living and spend time arrangements.
The discrete application before the court is the father’s application to discharge the Independent Children’s Lawyer.
The father sought to pursue his application on the morning when the matter was listed for a final determination of the parenting dispute.
Notwithstanding that the determination of the preliminary application would delay the ultimate trial, the father sought to proceed with his application.
On that day, I made orders as follows:
i)The father’s application to discharge the Independent Children’s Lawyer should be dismissed;
ii)The costs of the day incurred by the mother and the Independent Children’s Lawyer are reserved;
iii)Adjourning the matter for mention on 4 February 2019.
The reasons for my determination follow.
Background
Due to the limited nature of the dispute it is not necessary to comprehensively traverse the relevant factual background. I will do so only briefly.
The mother is currently 39 years of age and is employed as a professional.
The father is currently 47 years of age and is employed as a manager.
In May 2015 the parties met through a dating website and had a brief relationship of approximately three weeks.
On … 2016 the parties’ son, [X] was born.
The parties have had an acrimonious and highly conflictual relationship since [X]’s birth.
The father initiated proceedings in this court on 30 March 2016, when [X] was approximately … weeks old.
There have been numerous interim hearings since the filing of the father’s application.
An order for the appointment of an Independent Children’s Lawyer was made on 17 November 2016.
The trial was fixed for hearing on 15 November 2018. On the morning of the hearing the father sought to proceed with his application for discharge of the Independent Children’s Lawyer.
The proposals of the parties
The father sought orders that the Independent Children’s Lawyer, be discharged.
The mother and the Independent Children’s Lawyer sought orders that the father’s application be dismissed, and that their costs of the day be reserved.
Documents relied upon by the applicant father:
The father relied upon the following documents:
i)“Amended Final Orders Sought” filed 31 October 2018;
ii)Paragraphs 13 and 14 of his trial affidavit filed 7 November 2018.
Documents relied upon by the respondent mother:
The mother did not rely on any documents and sought only to be heard in oral submissions.
Documents relied upon by the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer did not rely on any documents and sought only to be heard in oral submissions.
He did however tender the following document which was were received into evidence:
Exhibit Number
Document
Tendered by
ICL 1
Email to the father from the ICL dated 14 April 2018
Independent Children’s Lawyer
The Applicable Law
An Independent Children’s Lawyer is appointed pursuant to s.68L of the Family Law Act 1975 (Cth) (“the Act”).
Section 68LA of the Act prescribes the general nature of the role of the Independent Children’s Lawyer as follows:
68LA Role of independent children’s lawyer
When section applies
(1) This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children’s lawyer
(2) The independent children’s lawyer must:
(a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children’s lawyer:
(a) is not the child’s legal representative; and
(b) is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court’s attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children’s lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children’s lawyer.
(7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
Section 68L(3) provides that :
(3) However, if the proceedings arise under regulations made for the purposes of section 111B, the court:
(a) may order that the child’s interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and
(b) must specify those circumstances in making the order.
The specific duties of the children’s lawyer are prescribed by s.68 LA(5) in the following terms:
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court’s attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
In Dickens & Dickens [2016] FamCA 115, Justice Watts referred to the relevant legal principles applicable to applications for removal of an Independent Children’s Lawyer.
At paragraphs [46] – [53] His Honour said as follows:
Legal principles in respect of the removal of an Independent Children’s Lawyer
[46] In Lloyd & Lloyd and Child Representative(2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [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.
[47] At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
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.
[48] In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[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.
[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.
[50] If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
[51] In T & L(2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:
The critical question … is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father …
[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.
[53] It is usually the case that the Independent Children’s Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children’s Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children’s Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time. In respect of interlocutory matters however, there is a duty on the Independent Children’s Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children’s Lawyer’s independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.
Paragraph 10 of Horner & Horner [2018] FamCA 487, His Honour Justice Tree, distilled the principles from the relevant authorities as follows:
[10] A number of authorities have considered the removal of an Independent Children’s Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent 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 be taken by the court;
•Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;
•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;
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take;
•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;
•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 Lawyers are, like anybody, liable to human frailty;
•A court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties.
I respectfully agree with and adopt the comments of their Honours Justice Watts and Justice Tree.
The father’s alleged misconduct of the Independent Children’s Lawyer
The father’s trial affidavit filed 8 November 2018 sets out his allegations against the Independent Children’s Lawyer as follows:
i)paragraph 13 refers to “concerning conduct between ICL and respondent’s lawyer”;
ii)paragraph 14 refers to “personal animosity and spite towards me by the ICL and family consultant”.
The Independent Children’s Lawyer did not file an affidavit in response to the father’s allegations and was content for her Counsel to address the allegations in oral submissions.
I will address each category of the father’s complaints.
Concerning conduct with the Respondent’s lawyer
The father’s asserted concerns are as follows:
6 December 2016
a)The Independent Children’s Lawyer sought a psychiatric assessment, although she had only been appointed 72 hours prior to the hearing;
5 June 2017
b)The Independent Children’s Lawyer ignored the recommendations of her own barrister, that time between the father and the child should be unsupervised;
c)Failing to act to stop the mother from displaying the child’s photograph on a dating website;
1 November 2017
d)Upon entering the court room, the father observed the Independent Children’s Lawyer having a lengthy conversation with the mother’s lawyer;
e)During discussions throughout the day the Independent Children’s Lawyer advised him that she could not be seen talking to him;
f)Throughout the day the Independent Children’s Lawyer had lengthy conversations with the respondent’s lawyer;
g)The Independent Children’s Lawyer advised the court that she was finding the case very stressful;
h)In the context of raising the issue of parental conflict with the court, the Independent Children’s Lawyer did not advise the court that it was the respondent mother who had been instigating the conflict;
13 April 2018
i)When the father approached the Independent Children’s Lawyer to ask a question, she brushed him off and was quite rude;
j)In the court room he observed the Independent Children’s Lawyer having a conversation with the respondent’s lawyer for approximately 10 minutes;
k)At the end of the day the Independent Children’s Lawyer approached him and advised that as the mother was briefing a Queen’s Counsel, he should get representation. He considered that an attempt to intimidate him;
14 April 2018
l)The father forwarded an email to the Independent Children’s Lawyer asking the name of the Queen’s Counsel the mother intended to brief;
23 May 2018
m)The father presented proposed minutes to the Independent Children’s Lawyer and she allegedly responded she would not agree to changes, he was toxic and that [X] should only have one parent in his life;
The father also asserts:
i)The Independent Children’s Lawyer was appointed because Victoria Legal Aid had a conflict of interest, as the mother had previously been represented by Ms C, a legal aid lawyer;
ii)Ms C was observed talking with the mother during one of the court hearings, although she no longer acted for the mother;
iii)The Independent Children’s Lawyer failed to advise the family report writer that it was in the child’s best interest to view the pictures and video produced by the father.
Personal animosity and spite
The father’s asserted concerns are as follows:
a)the Independent Children’s Lawyer’s recommendation of the necessity for a psychiatric assessment, when she had only been recently appointed;
b)her personal animosity resulting from a complaint lodged by him to the Legal Services Board Commissioner and correspondence to my Chambers;
c)her personal animosity has led her to side with the mother and sway her recommendations in the mother’s favour.
Submissions of the Independent Lawyer
Counsel for the Independent Children’s Lawyer made the following submissions:
Late filing of Father’s application
i)the procedural orders made on 5 June 2018 required any amended application to be filed by 18 October 2018;
ii)the father’s application was not filed until 31 October 2018;
iii)as a result, the Independent Children’s Lawyer had not filed any material in response;
Substance of the complaints
iv)the father’s complaints at such a late stage of the proceedings, even taken at their highest, are insufficient to discharge the Independent Children’s Lawyer;
v)a court should be slow to discharge Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties Lloyd & Lloyd & The Child Representative (2000) FLC 93-045;
vi)the applicable principles referring to the circumstances which justify removal of an pendant children’s lawyer are referred to at paragraph [10] of Horner & Horner [2018] FamCA 487;
vii)the conversations between the Independent Children’s Lawyer and the mother’s solicitor fall well short of an objective apprehension of bias;
viii)in relation to the allegations of events on 13 April 2018, the Independent Children’s Lawyer does not necessarily agree with the father’s assertions, but in any event the allegations would not be sufficient to warrant discharge of the Independent Children’s Lawyer;
ix)the allegations that the Independent Children’s Lawyer and the mother’s lawyer were attempting to intimidate the father, in the context of a conversation about counsel to be briefed, is a subjective belief of the father and not one which has any objective reasonable basis;
x)the suspicions and concerns about collusive conversations between the Independent Children’s Lawyer and the mother’s solicitor are unfounded;
xi)the refusal of the Independent Children’s Lawyer to agree with orders proposed by the father, is a misunderstanding of the role of the Independent Children’s Lawyer and does not constitute any malfeasance on her behalf;
xii)the reference to “toxic” by the Independent Children’s Lawyer was in the context of a toxic relationship between the parents and not her personal view of the father;
xiii)the Independent Children’s Lawyer was unaware of the father’s complaint to the Legal Services Board Commissioner, and has had no contact or communication with the LSBC arising from the complaint;
xiv)the orders for psychiatric assessment of the parties was made by consent, and there is no merit in the father’s complaint;
xv)the Independent Children’s Lawyer has had no involvement in conversations between the wife’s former lawyer, Ms C and the wife, and in any event that is not a matter relevant to a discharge application;
xvi)the Independent Children’s Lawyer is not required to provide copies of communication between her and a family consultant to either of the parties;
xvii)the role of Independent Children’s Lawyer often involves liaising with a family consultant, which is entirely consistent with the guidelines;
xviii)if the father wishes to pursue his allegations of bias against the family consultant, he is able to do so when cross-examining the family consultant;
xix)the Independent Children’s Lawyer’s request to provide documents to the mother was consistent with and an attempt to ensure transparency with both parties;
xx)it is not the role of the Independent Children’s Lawyer to take action against a party because of allegations of alleged misconduct by the other party;
xxi)it is not the role of the Independent Children’s Lawyer to direct a family consultant to consider particular evidence, such as the father’s photographs and videos. If she did so she, would be open to complaint;
xxii)all of the matters raised, individually and collectively fall well short of what is required at law to discharge of an Independent Children’s Lawyer, in the context of the principles referred to at paragraph [10] of Horner & Horner (supra).
Submissions of Counsel for the mother
Counsel for the mother agreed with and supports the submissions of Counsel for the Independent Children’s Lawyer.
Her additional submissions were as follows:
i)the conversations giving rise to allegations of collusion between the Independent Children’s Lawyer and the mother’s solicitor on 1 November 2017 and 13 April 2018, were in open court;
ii)the father’s subjective belief of his allegations falls well short of what a court is required to consider when considering an application to discharge an Independent Children’s Lawyer.
Conclusion
I have considered the submissions of all parties and concur with the submissions of counsel for the Independent Children’s Lawyer and the mother.
None of the father’s allegations against the Independent Children’s Lawyer, individually and collectively persuade me that the Independent Children’s Lawyer has acted inappropriately or unprofessionally and that her appointment should be discharged.
I am also concerned about the father’s delay in making such an application, considering many of the allegations refer to alleged conduct quite some time ago.
The relevant authorities refer to parents being frequently dissatisfied with the view and recommendations of an Independent Children’s Lawyer and as a result of that, levelling allegations against them seeking discharge. This is such a case.
In my view, the father has to some extent misunderstood the role and process of the Independent Children’s Lawyer. He does not seem to accept that any recommendation or action contrary to his view, may be in the child’s best interests, and does not arise from bias, spite or animosity.
I am satisfied that the Independent Children’s Lawyer will continue to discharge her duties in a professional, ethical and child focused manner in accordance with her obligations to the court.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 17 December 2018
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