Horner & Horner
[2018] FamCA 487
•29 June 2018
FAMILY COURT OF AUSTRALIA
| HORNER & HORNER | [2018] FamCA 487 |
| FAMILY LAW – PRACTICE & PROCEDURE – Application by the father for the removal of the Independent Children's Lawyer – Allegations that the Independent Children's Lawyer lacked impartiality, failed to properly fulfil her duties to the Court, failed to properly promote the child’s best interests and has not adhered to appropriate professional standards – Where there is no justification for the Independent Children's Lawyer’s removal – Application dismissed. |
| Family Law Act 1975 (Cth) ss 68L, 68LA |
| Dean & Susskind [2012] FamCA 897 Sawyer & Sawyer [2015] FamCA 982 Knibbs & Knibbs [2009] FamCA 840 Paco & Racina [2014] FamCAFC 195 Leroux & Leroux [2015] FamCA 1128 Lloyd & Lloyd & The Child Representative (2000) FLC 93-045 Minister for Immigration & Jia Legeng (2001) 205 CLR 507 Johnson & Johnson (2000) 201 CLR 488 at 492 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Vale & Vale [2016] FamCA 307 |
| APPLICANT: | Mr Horner |
| RESPONDENT: | Ms Horner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bassano |
| FILE NUMBER: | CSC | 405 | of | 2016 |
| DATE DELIVERED: | 29 June 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns by Video to Townsville and Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 12 March 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms McMillan QC |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Bassano Law |
Orders
The father’s Application in a Case filed 13 February 2018 is dismissed.
That all outstanding applications be listed for mention only at 2:15pm on Monday 30 July 2018 by Global Meet telephone conference.
NOTATION:
A.To enter the conference, please dial:
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Then, when prompted, dial the passcode:
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Please dial in five minutes prior to the hearing and wait quietly until the Court Officer calls on your matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horner & Horner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS VIA VIDEO LINK TO TOWNSVILLE AND BRISBANE |
FILE NUMBER: CSC33/2016
| Mr Horner |
Applicant
And
| Ms Horner |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 21 September 2017, I made interim orders consequent upon a trial in relation to the only child born to the parties’ relationship, being B born in 2014 (“the child”). Under those orders, Ms Horner (“the mother”) was to have sole parental responsibility for the child, who although he would live with her, would spend progressively increasing amounts of time with Mr Horner (“the father”) extending to overnight time from no earlier than 25 April 2018. Communication between the father and the child by Skype was also ordered.
Interim orders were necessary because, at the time of the trial in August 2017, the father had only recently recommenced spending time with the child, and the evidence, which I accepted, was to the effect that the father and child “have a strong, emerging and positive relationship, which needs scope to develop.” At [91]-[100] of my reasons I identified the reasons why interim orders could only then be made, including:
·There needed to be a trial of the father spending unsupervised time with the child, including overnight time;
·The mother’s reaction to the father spending increased amounts of unsupervised time with the child could not be predicted, and particularly whether she would be able to support that time and its increase;
·The possibility that the fact of the father spending time with the child might reduce the otherwise extraordinary level of conflict between the parties to date.
Since then, unfortunately, the conflict between the parties appears to have continued unabated. Interlocutory warfare has continued to be prosecuted by them both, and a number of applications remain to be disposed of. However by Application in a Case filed 13 February 2018, the father sought the discharge of the Independent Children's Lawyer, and logically that application needs to be determined prior to all others.
On 12 March 2018 I heard that Application in a Case and reserved my decision. This is my decision in relation to that application, and my reasons for it.
BACKGROUND FACTS
It is unnecessary to traverse much of the relevant factual background in these reasons, in part because I have sufficiently traversed it in my earlier reasons. However the following skeletal outline will give sufficient context:
·The father was born in Australia, is presently 37 years of age, and is employed in South East Queensland;
·The mother is presently 35 years of age, and although born in Europe, moved to Australia in 2007 and has remained here ever since. She is not presently in employment;
·The parties met in January 2010, formed a relationship in October 2012, commenced living together in August 2013, married in 2014 and thereafter moved to Europe, where the child was born in 2014;
·The father returned to Australia on 16 June 2015, and that date, albeit at the time unbeknownst to him, is agreed as being the date of termination of the relationship. Initially the mother and child remained living in Europe, but then moved to Australia without the father’s knowledge, and concealed that move from him;
·By at least October 2015, the mother had formed a new relationship, to which a son was born in 2016;
·The first time the father spent time with the child after leaving Europe, was in H Town on Boxing Day 2015, and again on 27 and 28 December 2015. Although the parties negotiated about using a Contact Centre to supervise further visits of the father, the father refused the offer and commenced these proceedings in Brisbane on 27 January 2016;
·Interim orders were made on 15 March 2016 for the child to spend privately supervised time with the father at H Town, which occurred on 28 and 29 March 2016, although the father has thereafter refused to use private supervisors;
·Thereafter the parties litigated both in the Federal Circuit Court, and in relation to protection orders in the Magistrates Court;
·The next occasion that the father spent time with the child was at the H Town Contact Centre on 27 and 28 August 2016, but a subsequent planned visit on 3 and 4 September 2016 was cancelled late by the mother;
·At around that time the mother and her partner moved from H Town to C Town, and there was difficulty (to say the least) in securing the C Town Contact Centre to undertake supervision of the father’s time, although that did occur on 13 January 2017. Unfortunately, since then, disagreement between the father and the Contact Centre seems to have led to that centre declining to supervise further time;
·On 5 July 2017, in anticipation of the then approaching trial, I made orders for the father to spend supervised time with the child, which occurred on 19 and 26 July, and 2 August 2017, for two hours duration on each day;
·As I have previously observed, the trial in August 2017 led to interim orders which provided for a stepped increase to unsupervised overnight time by the middle of 2018;
·The parties have continued to demonstrate marked hostility towards each other. The father remains adamant that the only way he will be able to have a meaningful relationship with the child is if he moves into his care; the mother’s current position in relation to how that relationship could best be facilitated is unclear, and indeed it may be that at the resumed trial she again presses for a “no contact” order, although that remains to be seen;
·In early 2018 the mother commenced to withhold the child from the father on the basis that the child had allegedly made disclosures of being sexually abused by him. The police investigation in relation to that found such claims to be unsubstantiated, and the father’s time with the child resumed. Needless to say, those allegations caused the father much agitation.
RELEVANT LEGAL PRINCIPLES AND STATUTORY PROVISIONS
The court’s power to appoint an Independent Children's Lawyer is conferred by s 68L of the Family Law Act. It is indisputable that implicit in that power is the correlative power to remove an Independent Children's Lawyer.
The role of the Independent Children's Lawyer is articulated in s 68LA of the Act. That section uses two subheadings: the first is “general nature of role of Independent Children's Lawyer” and the second is “specific duties of Independent Children's Lawyer.” As to the former, s 68LA(2) provides:
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 and what the Independent Children's Lawyer believes to be the best interests of the child.
Sub-section (3) goes on to provide that:
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.
The “specific duties” of the Independent Children's Lawyer are articulated in s 68LA(5) in the following terms:
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 related 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.
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;[1]
·Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;[2]
·On occasion, the Independent Children's Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;[3]
·Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;[4]
·It is not appropriate for a litigant to endeavour to micro-manage the Independent Children's Lawyer, or critique every step that they take;[5]
·It is certainly not the case that, even if an Independent Children's Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;[6]
·It is inevitable that the high standards of competence which the court expects of Independent Children's Lawyers are not always met. Independent Children's Lawyers are, like anybody, liable to human frailty;[7]
·A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.[8]
[1] Dean & Susskind [2012] FamCA 897 and Sawyer & Sawyer [2015] FamCA 982 at [57]. See also Knibbs & Knibbs [2009] FamCA 840 at [33]-[61] approved in Paco & Racina [2014] FamCAFC 195 at [52].
[2] Knibbs (supra) and Leroux & Leroux [2015] FamCA 1128 at [31].
[3] Knibbs (supra) at [47]-[50] and Leroux (supra) at [35].
[4] Knibbs (supra) at [52]-[61] and Leroux (supra) at [39].
[5] Leroux (supra) at [218].
[6] Sawyer & Sawyer (supra) at [80].
[7] Sawyer & Sawyer (supra) at [79].
[8] Lloyd & Lloyd & The Child Representative (2000) FLC 93-045.
I should also note that the court has published guidelines for the conduct of Independent Children's Lawyers. Relevant to this application are the following points derived from those guidelines:
·The Independent Children's Lawyer is expected to use his/her professional judgment and skill, subject to any direction or orders of the court. The availability of funding is, however, a practical constraint;
·The Independent Children's Lawyer must, if satisfied that 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;
·The Independent Children's Lawyer should seek to develop a case plan at the earliest opportunity, where appropriate in consultation with any family consultant or other expert involved in the case.
As shall be seen, the father alleges that the Independent Children's Lawyer is biased against him, or at least in favour of the mother, which I construe as a claim that she has not acted impartially, contrary to s68LA(5)(a). It is well recognised that judicial bias may be of two kinds, actual or apprehended: see, for instance Minister for Immigration & Jia Legeng (2001) 205 CLR 507 at 531-2, Johnson & Johnson (2000) 201 CLR 488 at 492, and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
However, whether the notion of apprehended bias has application to Independent Children's Lawyers is doubtful. In Vale & Vale [2016] FamCA 307, Forrest J at [26]-[30] said: (footnotes omitted)
26. I am quite satisfied that it is accepted principle that the Court should be slow to discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.
27. I consider the words of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 apposite. His Honour said:
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] 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 [ICL] to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean 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 [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.
28. As Murphy J pointed out in Knibbs at [43]-[45], there will be times when the ICL, acting completely within the bounds of his or her duty and in accordance with their independent, professional opinion, as to what is in the best interests of the children in the case, will say and do things that might very well have the appearance of partiality even, perhaps, to the objective bystander. The ICL’s duty and obligations do not require, again as Murphy J said in Knibbs at [49], the ICL to act as merely “a benign or ambivalent mouthpiece for competing evidence.” It is not uncommon for the ICL to make or cause submissions to be made on his or her behalf by counsel that are completely at odds with the position adopted by one parent and completely consistent with the position adopted by the other parent. The objective bystander might look to that and reasonably consider that the ICL appears to be partial towards one party’s position rather than the other. That does not mean though that the ICL should, on the application of an unhappy parent with whom the ICL is at odds, be discharged from the case.
29. Like so many matters in this Court, it will, in my opinion, be a matter of considering the evidence presented on each application for the discharge of an ICL to determine if the evidence demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal.
30. Parents who are involved in litigation in this Court about their children need to understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case. The ICL might seek from the Court orders completely contrary to orders sought by one or both of the parents. That does not mean the ICL is not acting independently and impartially in the best interests of the children.
I respectfully agree with, and adopt, those comments.
THE ALLEGED MISCONDUCT OF THE INDEPENDENT CHILDREN'S LAWYER
Overview
The material relied upon by the father in support of his application was voluminous, frequently employed strong language, and made many, largely irrelevant, accusations against the mother and others. Further, much of it is repetitive. This includes the lists of misconduct of the Independent Children's Lawyer which were appended to both the father’s affidavit filed 9 March 2018, and a far more voluminous affidavit filed on 28 February 2018. For reasons which are not altogether clear, in fact there are more allegations made against the Independent Children's Lawyer in the 28 February list than in the 9 March list. In the former, those run to 97 numbered paragraphs whereas in the latter there are only 93 paragraphs. Moreover, although they are indeed, as they purport to be, arranged chronologically, the nature of the misconduct said to have been engaged in by the Independent Children's Lawyer differs from date to date, and the father’s attempt to conceptually arrange that alleged misconduct into categories in the body of his affidavit is very difficult to follow.
In her helpful written submissions provided at the hearing, Senior Counsel for the Independent Children's Lawyer adopted six groupings of the allegations, although upon reflection, it appears to me that they can be further distilled to four, as follows:
1.That the Independent Children's Lawyer’s conduct demonstrates she is partial to the mother, or at least not impartial to the father, and hence has misconducted herself in her role as Independent Children's Lawyer;
2.That the Independent Children's Lawyer has failed to otherwise properly fulfil her duties to the court;
3.That the Independent Children's Lawyer has failed to properly promote the child’s best interests;
4.That the Independent Children's Lawyer has otherwise not adhered to appropriate professional standards.
I should say that some of the complaints that the father makes about the Independent Children's Lawyer may fit under two or more of those categories, and some may not fit perfectly under any of them. However it seems to me that, notwithstanding those limitations, it is useful to organise and evaluate the complaints on the above conceptual bases, which has the benefit that the collective impact of any conceptually related misconduct can therefore be evaluated.
Three preliminary observations should be made. The first is that some, and indeed a number, of the 97 allegations made in exhibit RB-02 to the father’s affidavit of 28 February 2018 are not in fact allegations about the Independent Children's Lawyer at all. As but one illustration, paragraph 92 simply states as a fact the terms of a protection order.
The second matter is that, leaving aside the strong, accusatory language employed from time to time, and the sense of entitlement which pervades much of the father’s material, some of the documents relied upon by him and annexed to his affidavit are in a form deserving of little weight. For instance, there is the selective annexation of court transcripts, or more accurately, very limited parts of transcript, and there is at least one purported transcript of a telephone conversation between the father and another person, the recording of which may or may not have been lawful. I will attempt to address those sorts of limitations in relation to the particular allegations.
The third is that, perhaps unusually, the Independent Children's Lawyer did not file any responsorial material to the father’s affidavits, although the mother did do so. Whilst the father did not argue that the Independent Children's Lawyer’s failure to file material comprised a concession that his allegations were factually not in dispute, nonetheless the absence of any traverse of the father’s many allegations – except by the mother – makes the resolution of the matter more difficult than might otherwise have been the case.
Lack of impartiality
The matters that fall under this category appear to be as follows:
·On 11 April 2016, whilst at a court event, the father says that the Independent Children's Lawyer told him that police were there to arrest him, and then walked off.
The father believes, or thinks it probable, that the Independent Children's Lawyer called the police to arrest him, but that cannot be established on the evidence before me. Taken in isolation, there is nothing in the fact of this conversation to suggest partiality;
·Also on 11 April 2016, during the court event, it is said that the Independent Children's Lawyer agreed with the Judge’s comments that “there may be anger issues with the father.” The father disagrees he has anger issues.
Even as at April 2016, the material plainly identified that one of the likely issues in these proceedings would be the father’s propensity to manifest anger from time to time. The Independent Children's Lawyer’s agreement with a Judge’s comments that such may be an issue does not suggest a lack of impartiality;
·Also on 11 April 2016, it is said that, during a conversation, seemingly between the father and mother, the Independent Children's Lawyer advised the mother not to tell the father where she was going to be on holidays.
In a case involving high conflict, with allegations of past physical violence, such a statement – which is only sensible – does not suggest to my mind that the Independent Children's Lawyer was partial against the father, or to the mother;
·It is said that on 12 May 2016, outside Court, in an exchange with the father, the Independent Children's Lawyer enquired what orders he wanted, and was advised that he wanted unsupervised time. To this the father says the Independent Children's Lawyer indicated that she would not be supporting this, and said “sorry you cannot see your son unless you pay…” When asked what she meant by that, it is said “the Independent Children's Lawyer walked off with a careless attitude going straight to [the mother] and her lawyer spending approximately two hours with them in a separate room.”
I am not satisfied that this conduct – assuming it occurred as the father alleges – shows partiality. The fact is that contact centres charge fees, albeit at modest rates. An Independent Children's Lawyer is not obliged to stay and chat with parties, and may legitimately spend more time with one than the other;
·It is said (paragraph 14 of RB-02) that, seemingly on 12 May 2016, on the occasion of a further court event in H Town, the Independent Children's Lawyer was aware that in 2015, the mother had falsely deceived the father, by causing him to think that she and the child were in Europe, when she was not.
How the Independent Children's Lawyer being aware of this established fact demonstrates partiality towards the mother (noting that the father in fact says it was bias towards him) is difficult to conceive and I reject it;
·The father believes, based upon an apparently overheard conversation through “courtroom doors”, that the Independent Children's Lawyer advised the mother to call police if the father had spoken to her, as it was a breach of some species of order.
There are several difficulties with this. Firstly it depends upon me accepting the father’s evidence as to what he says he heard through “courtroom doors,” and secondly it seems clear that if indeed the father did speak directly to the mother, that was a breach of a relevant order, which could cause police involvement for the father. It does not seem to me that an Independent Children's Lawyer who is seeking to have appropriate orders maintained and complied with, is failing to act impartially;
·It is said (paragraph 19) that the Independent Children's Lawyer is the member of “Indigenous Access to Justice Committee” together with a H Town based Federal Circuit Court Judge, and somehow or other this demonstrates bias against the father, because apparently that entity has been engaged in actual or threatened litigation with the father’s mother.
Leaving aside the unlikelihood that an Access to Justice Committee has been involved in litigation with the paternal grandmother, even if it has, it is difficult in the extreme to see how that could possibly show a lack of impartiality by the Independent Children's Lawyer to the father;
·It is said that, on 16 August 2016, during the course of a contravention hearing, the Independent Children's Lawyer “coached” the mother at the bar table by “assisting her legally on numerous occasions.” It is further said that the Independent Children's Lawyer failed to bring to the attention of the relevant Circuit Court Judge findings on 20 June 2016 by an H Town Magistrate in Domestic Violence proceedings. Precisely how the latter impacted upon the contravention proceedings or stood to do so, is unclear, save that it is said that “the Independent Children's Lawyer supported and requested no Skype contact between father and child.”
It is not apparent to me how Domestic Violence proceeding determinations could inform whether there had been a contravention of a Circuit Court order, and whilst there is power in parenting proceedings for a court to adopt the findings of other courts, it is by no means automatic.
The mother denies that the Independent Children's Lawyer coached her, but rather says she made sure the mother “understood the proceedings”. An Independent Children's Lawyer may quite properly assist a self-represented in that way, or indeed a represented, party, if it will assist the proper, just and timely resolution of a matter. There is nothing improper in doing so. Obviously the Independent Children's Lawyer must not become a party’s de facto lawyer, but I do not construe the evidence as demonstrating that in this case.
I do not find, in isolation, that any of this material speaks of any lack of impartiality by the Independent Children's Lawyer;
·It is said that, on 28 March 2017, the Independent Children's Lawyer supported an objection to a subpoena directed to the Queensland Police Service, when the documents apparently ultimately produced (although it is altogether unclear) showed that allegations made by the mother and her partner against the father were wrong.
Assuming that the Independent Children's Lawyer did indeed support such an objection, unless she knew in advance what was to be produced pursuant to the subpoena, it is not possible that she could have known what the documents would have demonstrated. It seems extremely far-fetched to allege a lack of impartiality arising from this.
·It is said (paragraph 64) that the father is of the belief that the Independent Children's Lawyer advised the mother to file some species of “breach” on the father.
The basis for the father’s belief is not established in the evidence. It is therefore not possible to conclude that the Independent Children's Lawyer in fact acted as he asserts, or even if she did, that it demonstrates partiality;
·It is said (paragraph 71) that, either during, or in the lead up to, the trial before me in August 2017, that the Independent Children's Lawyer supported the mother by recommending a whiteboard barrier separate the parties during the proceedings (which barrier was indeed maintained whilst the mother was under cross-examination by the father) and further that the Independent Children's Lawyer sent the mother emails which the father had sent her, but never forwarded emails sent by the mother to the father.
The whiteboard allegation does not suggest partiality. There were allegations of family violence made by the mother against the father, and a response such as the use of a whiteboard is appropriate, even when the allegations of family violence are disputed. As to the balance of this claim, a fundamental difficulty is whether there were in fact emails between the mother and the Independent Children's Lawyer, and further, even if there were, whether there was any reason to forward them on to the father. Moreover the Independent Children's Lawyer could legitimately have been of the view that providing the mother’s emails to the father would only serve to further inflame the situation beyond the high conflict that it already then had. I am not satisfied this shows a lack of impartiality;
·It is further said (paragraph 72) that at the trial, the Independent Children's Lawyer ignored the father on an occasion when he opened the courtroom door for her.
This could not possibly be said to comprise partiality, even if it be poor manners;
·It is said that, in February 2018, the Independent Children's Lawyer opposed the father being permitted to bring a contravention application against the mother for withholding the child from the father.
At the time there were indeed orders precluding the parties from bringing further applications, as their propensity for doing so was becoming out of control. Even if it be the case that the Independent Children's Lawyer did express a disinclination for leave to be given to the father to commence contravention proceedings, that by no means is only consistent with partiality in favour of the mother or against the father. It is perfectly consistent with the Independent Children's Lawyer wishing to maintain the compass of the proceedings within manageable bounds;
·It is said (paragraph 97) that “the Independent Children's Lawyer has always sided with the mother and has acted in apprehended bias towards [the father].” It is further said that she has failed to intervene in unspecified ways, and again, apparently, this is said to comprise bias.
It is simply not correct to say that the Independent Children's Lawyer has always sided with the mother, as from my perspective at least, the Independent Children's Lawyer did not espouse any particular view in this case until the conclusion of the trial. Even if it be the case that she has more often than not tended to support the mother’s position, then so long as that is done in the reasonable exercise of professional judgment, there is nothing wrong in doing so;
·It is said (paragraph 97, 4th paragraph) that if I were to require the Independent Children's Lawyer “to reveal her emails and phone calls relating to [the mother] and the contact that they have had” that there would somehow be partiality demonstrated. Again, complaint is made about the whiteboard. It is further said that “the Independent Children's Lawyer is partial and has an (sic) pecuniary interests in this case.”
The first aspect of this complaint must fall on the basis of an absence of any material; the father’s suspicions are not evidence. I have already dealt with the whiteboard allegation, which means there is only the pecuniary interest argument which is being advanced that needs to be further considered. That was expanded upon by the father in oral submissions to suggest that the Independent Children's Lawyer makes income by virtue of the matter being protracted. That is, of course, the case in relation to every Independent Children's Lawyer, and it is spurious to argue that therefore their pecuniary interests are in conflict, or that somehow or other they are misconducting themselves.
I have considered all of these matters individually, and it remains only to consider them collectively. I have done so. In my view, not only do they not show a lack of impartiality, but further, even a reasonably informed objective bystander would not form the view that the Independent Children's Lawyer is partial to the mother, or against the father.
The allegations of bias are not made out.
Not fulfilling duties to the Court
It appears as though the following fall predominately under this heading:
·That on 11 April 2016 the Independent Children's Lawyer had not properly prepared for Court, claiming that she had only received the father’s email material on the day before, and had not read it, as she had not had time.
Whilst a Court expects those appearing before it to be properly briefed with material, little criticism could be made of the Independent Children's Lawyer if, as the father suggests, he had only sent material to her on the previous day - a Sunday - by email. It could not seriously be said that she failed in some obligation, either to the Court, or to adhere to professional standards more generally;
·It is said that, on 12 May 2016, the Independent Children's Lawyer did not advise the Court of the likely waiting period for the parties to be accepted into the H Town Contact Centre, and the fact that its policy was only to provide two hours of supervised time per fortnight, not three.
I would consider it most unlikely that the Court was unaware that Contact Centres, who services are in high demand, will have waiting times for clients to commence using their services, as inevitably will occur from time to time. Further, the amount of time which the Contact Centre is likely to be able to offer clients will likely fluctuate, and may depend upon a number of factors. Ultimately the Contact Centre is not bound by orders, and in any event, it is likely that the Federal Circuit Court is well aware that its orders may not be able to be strictly complied with by the Contact Centre, as to either duration of time, or its frequency. It does not seem to me that there is a positive obligation on the part of an Independent Children's Lawyer to identify those matters, and to lead evidence of them before the Court. Although it may well be helpful, it is not a failure of a duty to the Court not to do so;
·It is said that on 16 August 2016 (seemingly) the Independent Children's Lawyer failed to advise Judge Willis of a determination in Domestic Violence proceedings, that had been made substantially in the father’s favour by an H Town Magistrate. Particularly, in the orders which were made in those proceedings, the child was not named as a protected person, because the mother did not want him named, and yet (it seems) the father’s time with the child was still required to be supervised by the Federal Circuit Court.
In my view, the consideration as to any risk of harm to the child posed by the father which may warrant supervision under Federal Circuit Court orders may have been assisted by the H Town Magistrate’s Court determination, but not invariably so. Ideally it would have been brought to the attention of the Court. However the father had the opportunity to do so, and apparently did not. It is not the obligation of the Independent Children's Lawyer to place every piece of evidence before the Court; rather there is judgment involved in selecting the material.
I am not persuaded that the failure to provide the Court with the Magistrate’s decision breached some duty to the Court;
·It is said that, on 3 September 2017, the Independent Children's Lawyer did not inform the Court of the mother’s non-compliance with Federal Circuit Court orders, being her failure to make the child available for supervised contact.
Again, the father had an opportunity to bring this material to the attention of the Court. It is not incumbent upon the Independent Children's Lawyer to assume a partisan position in relation to non-compliance with orders, particularly if there is a basis to think that there may be a reasonable excuse for non-compliance. Certainly failing to do so does not breach any duty to the Court;
·It is said that, on 10 September 2016, the Independent Children's Lawyer became aware that the mother had moved from H Town to C Town, causing, in practical effect, the father to be placed on yet another waiting list to access services of the C Town Contact Centre. The father somewhat extravagantly says the Independent Children's Lawyer’s knowledge, meant that “the ICL [was] herself breaching Federal (sic) Court orders” which is patently incorrect.
It is not possible to construe this as a breach of a duty to the Court;
·It is seemingly said that, on 7 September 2016, during the course of Family Report interviews, the Independent Children's Lawyer somehow or other breached her duty to the Court, by failing to ensure that the mother produced the child for interview.
Assuming this is what the father contends (and it is by no means clear) then it is misconceived. The Independent Children's Lawyer has a role to properly instruct the Family Report Writer if he or she has been briefed by her, but otherwise has no role in relation to ensuring the presentation of children;
·It is said that the Independent Children's Lawyer failed by providing the Family Report Writer, Mr K, with access to the Magistrate’s decision in relation to family violence proceedings.
It is a matter of professional judgment as to what material should be provided to a relevant expert such as a Family Report Writer. In any event, if there is relevant material which has not been provided, it may be the subject of legitimate cross-examination of the expert by a party, with the prospect of commensurate modification of their evidence.
I am not satisfied that failing to provide the Magistrate’s reasons to the Family Report Writer, if indeed that occurred, was a breach of a duty to the Court, or, if it be alleged, shows a lack of impartiality;
·It is said (paragraph 34) that a further Family Report should have been ordered as a result of the mother withholding the child from the interviews, and the Family Report Writer not having been briefed with the reasons of the Magistrate in relation to Domestic Violence proceedings.
There are inevitably logistical and resource issues in relation to obtaining Family Reports, and it is likely that as a trial approaches, an updated Family Report may be required.
I am not satisfied that there was an independent obligation on the Independent Children's Lawyer to commission another Family Report augmented by that additional material, or even if there were, that it comprised a breach of a duty to the Court, or shows partiality;
·On 28 September 2016 it is said that, somehow or other, the Independent Children's Lawyer, became aware that the reasons proffered by the mother to the Family Report Writer as to why the child was not produced at interview, were incorrect. It is further said that the Independent Children's Lawyer did nothing in consequence of this.
In my view this is sufficiently addressed by my comments above;
·It is said that, on 29 September 2016, the father identified the above matters to the Independent Children's Lawyer, and indeed to the Court, and yet the Independent Children's Lawyer did nothing in response to that.
Again, the above discussion sufficiently deals with this further complaint;
·It is said that, on 5 October 2016, the Contact Centre operator in H Town emailed the father advising that, if the parties were unable to reach an agreement in relation to visits, then they would be unable to offer a service, and would refer the matter back to the Independent Children's Lawyer. It is said that the Independent Children's Lawyer failed to follow the matter up, or advise the Court.
I am not satisfied that this comprised some failure to fulfil a duty to the Court. The Independent Children's Lawyer is not intended to be the arbitrator of every dispute between the parties. Her primary role is to advocate for the best interests of the child, as she determines where they lie. In a high conflict case such as this, she may be well advised not to become embroiled in every dispute between the parties;
·It is said that, on 8 December 2016, during a mention in the Federal Circuit Court, the Independent Children's Lawyer failed to address the Court about the mother’s non-compliance with orders (presumably not making the child available to spend time with the father in H Town, rather than C Town) and did not raise with the Court the fact that Skype contact was not occurring.
It is not incumbent on the Independent Children's Lawyer to raise each and every matter troubling the parties with the Court; the parties may do so themselves. I am not satisfied that the Independent Children's Lawyer breached any duty to the Court in so failing (assuming that did occur);
·It is said that, on 13 February 2018, the Independent Children's Lawyer failed to advise the Court that the child was the subject of a Queensland Police investigation about allegations that the father had sexually abused the child.
It was apparently this which underpinned the mother’s retention of the child, contrary to my orders. Whilst it may have been desirable for the Court to be advised of that event – assuming it was not – I am not satisfied that the Independent Children's Lawyer’s failure to so advise the Court (assuming that she was aware) comprised a failure of her duty to the Court;
·It is said that on 23 February 2018 the Independent Children's Lawyer failed to issue subpoenae seeking to unearth material relevant to the father’s claims of physical abuse of the child by the mother’s partner. It is said that the father therefore issued the subpoenae instead, and the Independent Children's Lawyer had not issued a subpoena since February 2017.
It is a matter of judgment for the Independent Children's Lawyer as to what subpoenae she chooses to issue from time to time, and particularly the timing of issuing them. Independent Children's Lawyers do not have unlimited resources, and require funding approval to undertake the steps they may wish to take. It would be usual for subpoenae to be issued prior to a major Court event, and there was no major Court event in February 2018.
I am not satisfied that failing to issue the subpoena comprised a breach of some duty to the Court.
I have considered these matters individually and none of them establish some basis for discharging the Independent Children's Lawyer. Taken collectively the same conclusion is also reached.
Failure to properly promote child’s best interests
The father has an extremely strong view as to where the child’s best interests lie – namely that the child should immediately move to live with him - which is almost the polar opposite to the mother’s views. His contentions in relation to the Independent Children's Lawyer failing to properly promote the child’s best interests are largely a long list of matters where he contends that the Independent Children's Lawyer should have done what he was advocating for. Inevitably that will be a very difficult area in order to show negligence or other misconduct.
Nonetheless, dealing with the father’s allegations, they are as follows:
·It is said that during the Court event on 12 May 2016, the Independent Children's Lawyer proposed no Skype time at all between the father and the child, and her recommendations as to the time which the father spent with the child were reflected in the orders then made. They caused him to be placed on a four month waiting list for supervised time at M Group in H Town, and he was only able to see his son twice there on 27 and 28 August 2016 for two hours.
The suggestion that the Independent Children's Lawyer’s recommendation, which was apparently reflected in orders made that day, was somehow a failure to properly promote the child’s best interests, cannot be sustained. It was a legitimate exercise of judgement by the Independent Children's Lawyer. The fact the father disagrees with it does not speak to a failure by the Independent Children's Lawyer to promote the child’s best interests.
·It is further said that during that hearing, the Independent Children's Lawyer focussed upon “alleged Domestic Violence breaches rather than the child’s best interests.” The father seeks to minimise his breaches of the Domestic Violence Orders, as he was “simply begging to see his child” because the mother had not complied (allegedly) with then existing interim orders.
In my view, any breach of domestic violence orders is an important matter, and may legitimately be the subject of focus by an Independent Children's Lawyer. No misconduct of any kind is established in this respect;
·Next it is said that (paragraph 11) the Independent Children's Lawyer knew that the child was calling the mother’s partner “papa” but never raised this with the Court. It is further said that somehow or other the child was being forced to call the mother’s partner “papa.”
Even if it be the case that the Independent Children's Lawyer did not raise this matter, it plainly was a matter raised by the father, and it was a matter for the judgement of the Independent Children's Lawyer, as to whether or not she wished to also voice concerns in relation to that matter. Certainly a failure to do so does not comprise a failure to promote the child’s best interests;
·Next it is said that (paragraph 12) the Independent Children's Lawyer insisted upon the father’s time with the child being supervised, and him being required to pay for that supervision.
I have already addressed this concern in relation to the allegation of bias, but it appears as though this particular allegation relates to a second occasion on which the Independent Children's Lawyer advised the father that she was going to recommend supervised time at his cost. The father says that there was no basis for supervision, in that he posed no risk of harm to the child, and the mother’s assertions that he did, were false.
In my view, an Independent Children's Lawyer’s assessment of any risk posed by a party is inevitably a vexed matter, and one upon which reasonable minds may differ. However the father’s history of breaches of domestic violence orders inevitably must give cause for concern in relation to unsupervised time, at least of the commencement of the re-establishment of the relationship between the father and child. I am not satisfied that there was any failure to promote the child’s best interests by advocating for supervised time at the hearing on 12 May 2016;
·Next it is said (paragraph 13) that at the time of the 12 May 2016 hearing, the Independent Children's Lawyer was aware that the child had not seen his father for more than 30 hours in the preceding year. Further, it is said that the child had not met his paternal relatives at all since his return from Europe. It is then said that, despite knowing this, the Independent Children's Lawyer recommended “no real and suitable time with the child’s father and no time at all with the Horner family.”
Again I am satisfied that the role of an Independent Children's Lawyer will require them to make difficult, and at times from a party’s perspective, contentious, submissions and recommendations. I am not satisfied that this allegation demonstrates a failure to properly promote the best interests of the child on the part of the Independent Children's Lawyer;
·Next it is said that the Independent Children's Lawyer did nothing to “intervene nor respond” about concerns raised by the father in an email of 9 August 2016, in which he alleged observing a bruise under the child’s right cheek, his mother being refused an opportunity to see the child, and his still being on a waiting list to see his child at the Contact Centre.
It is not every letter which requires a response, or a Court application by an Independent Children's Lawyer. Parties will regularly make allegations against the other, and the Independent Children's Lawyer is not obliged to accept them on face value, or to do a party’s bidding for them. In high conflict cases, an Independent Children's Lawyer may be well advised to stay out of the day-to-day fray. Certainly there is no basis for concluding that the Independent Children's Lawyer was not performing her duty in relation to this particular matter;
·Next it is said that, on 10 August 2016, the father advised the Independent Children's Lawyer that the mother was not allowing Skype contact between him and the child, and yet “the Independent Children's Lawyer did not address the issues raised nor brought it to the Court’s attention” despite it being a contravention of the Federal Circuit Court Orders.
In my view an Independent Children's Lawyer is not obliged to act upon allegations of contravention of orders. That can legitimately be left to the parties. In any event, experience suggests it is most unlikely that the Independent Children's Lawyer would be able to readily obtain funding to bring a contravention application;
·Next it is said (paragraph 25) that the Independent Children's Lawyer was aware of the outcome of the Domestic Violence appeal proceedings, before Judge Brassington (whose reasons were released on 20 June 2016), and yet failed to “file the reasons of DV to the Courts as also Court ordered.”
This is something of a recurrent theme in the father’s material, and he complains that ultimately he had to provide that material to the Court, and the Independent Children's Lawyer did not.
Even if it be the case that the Independent Children's Lawyer should have filed that material with the Court, I am not satisfied that any failure to do so comprises a failure to promote the child’s best interests of a kind which would justify her removal;
·Next it is said that, between September and December 2016, the Independent Children's Lawyer “failed to follow through and never contacted M Group” about changing the venue of the father’s contact with the child from H Town to C Town. There is a further complaint that the Independent Children's Lawyer was unable to obtain anything more than one hour of supervised time from the C Town Contact Centre.
In my view it was not the obligation of the Independent Children's Lawyer to assist the father in changing the venue for contact, nor can any responsibility for the limitation in the time being afforded to the father at only one hour per week, be sheeted home to the Independent Children's Lawyer. I am not satisfied that there is any failure to properly promote the child’s best interests disclosed in this allegation;
·Next it is said that, on 11 October 2016, M Group cancelled their further involvement in relation to supervised time with the father. Somewhat confusingly it is said that this forced the father “on another waiting list.”
As I understand it, M Group did not finally disengage from these parties until the following year, but even if I am wrong as to that, the fact that the Independent Children's Lawyer was aware of M Group’s view, and implicitly did nothing, does not speak of a failure to properly promote the child’s best interests;
·Next it is said that, on 8 December 2016, when the matter was mentioned in the Federal Circuit Court in H Town, the father’s lawyers requested more time between the father and child at C Town, and despite the Independent Children's Lawyer having apparently supported four hours of contact in a telephone conversation with the father’s lawyer prior to then, “failed to follow through with recommendations nor mention the concerns raised or presented with her.”
Precisely what the Independent Children's Lawyer then recommended is unclear, and in any event, as I understand it, the C Town Contact Centre was unable to facilitate more than one hour a week.
I am not satisfied that this allegation demonstrates any failure on the part of the Independent Children's Lawyer of a kind that requires her to be discharged;
·At paragraph 42 of exhibit RB-02, the father details some extracts of transcript of an occasion when this matter was before the Court on 8 December, in which it appears as though the Independent Children's Lawyer confirmed by nodding in agreement in Court that the C Town Contact Centre was available for up to two hours on Wednesdays and Fridays.
It is difficult to construe this, or indeed the balance of the paragraph, as somehow or other demonstrating a failure to properly promote the child’s best interests, and I am not so persuaded;
·Next it is said that, on 23 December 2016, in a telephone conversation with the father, M Group stated to him that the Independent Children's Lawyer “only supported one hour visits per fortnight in C Town.” It is therefore said that the Independent Children's Lawyer went against her own recommendations to the court on 8 December.
There is no direct evidence from M Group as to this conversation, and I am cautious in accepting that the only reason why C Town M Group restricted the father’s time to one hour per visit, was because of the Independent Children's Lawyer’s recommendations. As I understand it, the father’s interaction with M Group has often been tense and demanding, to the point where it now refuses to provide services to him.
Allied to this is the allegation that, when the father eventually did get to spend time with the child on 13 January 2017, it was only for one hour. I am not satisfied that this outcome comprises a failure on the part of the Independent Children's Lawyer to promote the child’s best interests;
·Next it is said that, in January 2017, the Independent Children's Lawyer again failed to support Skype time between the father and the child in a hearing before me. It is said that “the Independent Children's Lawyer failed to represent her client or notify his Honour of the concerning disregard of Federal Circuit Court orders displayed by [the mother] and the verbal and emotional abuse being conducted by [the mother] and her partner.”
All of this, of course, is contentious, in that, as I understand it, the mother says that the Skype time was being utilised by the father to harass her, rather than communicate with the child. Those sorts of disputes are matters upon which an Independent Children's Lawyer might be very wary to enter into the fray, and I am not satisfied that her failure to support the father’s concerns in relation to this demonstrates a failure to act in the best interests of the child;
·It is said that, on 16 February 2017, the Independent Children's Lawyer “failed to intervene and address” M Group imposing a six month waiting list (it seems) in relation to further time.
The Independent Children's Lawyer is not obliged to engage with M Group in relation to trying to secure further time. Failing to do so is not any form of negligence, misconduct, or failure to promote the child’s best interests;
·It is said that, on 23 February 2017, the Independent Children's Lawyer was aware that the mother had filed an Application in a Case requiring no contact at all between the father and the child until the child is 12.
The awareness or otherwise of that application does not speak of negligence, or a failure to properly promote the child’s interests;
·It is said that, on 24 February 2017, after the advocacy of the father and his lawyers, M Group C Town was able to offer two hours of time commencing on 4 March 2017, and yet “the Independent Children's Lawyer did not address or apply accordingly to the Courts or to notify his Honour.”
In my view the Independent Children's Lawyer had no obligation to act upon being so advised, and failing to do so does not comprise a failure to promote the child’s best interests;
·It is said that, on 1 March 2017, M Group terminated their involvement with the parties, and despite being aware of this and copied into relevant correspondence, “the Independent Children's Lawyer did not address or apply accordingly to the Courts or notify his Honour.”
As I have just indicated, in my view there is no obligation on the Independent Children's Lawyer to respond to such a circumstance. Failing to do so is not negligent, or otherwise a failure to promote the child’s interests;
·It is said that the Independent Children's Lawyer was aware that the mother refused the father’s proposal of a private supervisor, as she was insisting upon the Court’s orders then in place being in relation to supervised contact at the H Town Contact Centre.
I am not satisfied that the implicit allegation of inaction or non-intervention by the Independent Children's Lawyer comprises a failure to promote the child’s best interests;
·Next it is said that, on 14 March 2017, the father’s lawyers emailed the mother requesting unsupervised time, to which the mother failed to respond. It is said that the Independent Children's Lawyer was included in this email.
Implicitly this appears to be an allegation that the Independent Children's Lawyer, by thereafter not acting in relation to that proposal, somehow or other failed to promote the child’s best interests. I reject that claim, if that is what is intended;
·Next it is said that, seemingly between 28 March 2017 and 16 April 2017, many emails were sent to the Independent Children's Lawyer from the father’s lawyers, raising concerns about the child not being able to see his father, and that the mother was not complying with relevant orders. It is said that those lawyers requested the Independent Children's Lawyer to file an Application in a Case to rectify the issue. It is further said that the Independent Children's Lawyer failed to respond to these concerns.
In my view the Independent Children's Lawyer was not obliged to respond to each and every item of correspondence raised by the father’s lawyers, or indeed from the father. I am not satisfied that any such failure comprises a failure to promote the child’s best interests;
·Next it is said that, on 20 April 2017, the father’s lawyers again sought the Independent Children's Lawyer to file an Application in a Case, because there was no contact occurring between the father and child. The lawyer’s letter also apparently raised other concerns.
I am not satisfied that this allegation shows negligence on the part of the Independent Children's Lawyer, or a failure to properly promote the child’s best interests;
·Paragraph 65 of RB-02 repeats the allegation that the Independent Children's Lawyer, despite numerous requests to file an application seeking to reignite contact between the father and the child, did nothing.
In my view the Independent Children's Lawyer was not obliged to be a moving party in these proceedings;
·Next it is said that, by virtue of the Independent Children's Lawyer’s intransigence, on 24 May 2017 the father had no choice but to file an application seeking the resumption of time, which was an application the Independent Children's Lawyer should have initiated.
I reject that suggestion. The father is the litigant who should primarily be initiating applications of that kind;
·Next it is said that on 24 June 2016, when the father’s Application in a Case was heard, “the Independent Children's Lawyer still requested no Skype and no unsupervised contact.”
I am not satisfied that the Independent Children's Lawyer’s recommendations, even if they were as alleged, were a failure to properly promote the best interest of the child, or not a proper exercise of judgment on her part;
·Next it is said that, on 5 July 2017, the Independent Children's Lawyer failed to support unsupervised contact at a further mention in the Family Court.
Again I am not satisfied that this comprised a failure to promote the child’s best interests;
·Next it is said that, on 2 August 2017, at the first s 65L supervised between the father and child, the Independent Children's Lawyer did not approve of the paternal grandmother attending the contact visit. Notwithstanding the Independent Children's Lawyer’s apparent view, it was nonetheless permitted by the s 65L supervisor.
I am not satisfied that the Independent Children's Lawyer’s apparent resistance to the paternal grandmother attending is a failure to promote the child’s best interests;
·Next it is said that, on 2 August 2017, the Independent Children's Lawyer wrote to the father’s lawyer, proposing between six to eight hours of unsupervised contact, immediately prior to the scheduled Family Court trial (to commence 5 August 2017). However it is said that thereafter, despite indicating that, if the mother failed to agree, the Independent Children's Lawyer would make an oral application during the trial to that effect, that never occurred. Further it is said that the Independent Children's Lawyer intimated to the father her then intended proposal at the end of the trial, which she ultimately did not make.
I am not satisfied that, in the circumstances of a looming and ongoing trial, intimations by the Independent Children's Lawyer should be immutable or unable to be changed as the evidence unfolds. To my mind, changing a proposal does not speak of a failure to promote the child’s best interests; quite the contrary;
·Next it is said that, during the child’s visits with the father after the trial, the Independent Children's Lawyer was aware that the mother was not complying with my orders for Skype contact.
In my view it was not incumbent upon the Independent Children's Lawyer, assuming that she was so aware, to seek to enforce the orders. That is not the role of an Independent Children's Lawyer.
It is further said that the Independent Children's Lawyer was aware that the mother was not complying with orders in relation to communication between the parties.
Again I am not satisfied that, even if the Independent Children's Lawyer was so aware, it was incumbent upon her to raise the matter with the Court.
Likewise I am not satisfied that there is a failure to promote the child’s best interests by any failure of the Independent Children's Lawyer to raise the mother’s asserted noncompliance in relation to the father’s access to education and health care records in relation to the child, or the mother’s alleged failure to authorise the father to access such records;
·Next it is said that, in November 2017, the father copied an email to the s 65L supervisor and to the Independent Children's Lawyer, in which he related alleged disclosures of the child that the mother’s partner had hurt him. It is said that the Independent Children's Lawyer failed to do anything in relation to this, particularly that she “did not address nor notify his Honour nor did she apply or contact the Courts regarding (sic).”
I am not satisfied that there was any obligation on the Independent Children's Lawyer to act upon the email into which she was copied.
It is further said that email also identified the child was still not having Skype contact. It is said that the Independent Children's Lawyer did not respond to that email.
I am not satisfied that the Independent Children's Lawyer had an obligation to react to the father’s communications in that respect, or indeed in relation to the father’s concern about the mother’s alleged failure to use the Family Wizard App;
·Next it is said that, in December 2017, the Independent Children's Lawyer failed to assist with arranging alternative arrangements in relation to the father spending time with the child on Boxing Day.
I am not satisfied that the Independent Children's Lawyer had such an obligation, or that she otherwise failed to promote the best interests of the child;
·Next it is said that, on 11 December 2017, the Independent Children's Lawyer failed to notify the father’s lawyers, the Police, or the Department of Child Safety and Disability Services, of alleged bruising to the child and some disclosures made by him.
I am not satisfied that, in the context of highly contentious parenting proceedings such as these, the Independent Children's Lawyer was under any such obligation to so act. Certainly any failure to do so does not comprise a failure to promote the child’s best interests;
·Next it is said that, on 13 December 2017, the Independent Children's Lawyer supported the mother’s position that the changeover in Brisbane should be at a police station, rather than the father’s proposal of a MacDonald’s restaurant.
I am not satisfied that any action of that kind by the Independent Children's Lawyer comprised a failure to properly promote the child’s best interests;
·Next it is said that, on 17 December 2017, despite being advised that the mother had cancelled the proposed Boxing Day contact between the father and the child, “the Independent Children's Lawyer did not reply or attempt to seek contact to her client with his father.”
Assuming that the Independent Children's Lawyer did not so act, I am not satisfied that she was obliged to, nor that failing to do so comprised negligence, or a failure to promote the child’s best interests;
·Next it is said that on, 21 December 2017, the Independent Children's Lawyer was copied into an email between the father and the s 65L supervisor, which raised issues about the mother’s non-compliance with orders, the child’s alleged bruising, and the child’s alleged disclosures of being exposed to verbal abuse in the mother’s home. It is said “the Independent Children's Lawyer failed to address the concerns raised nor notified the appropriate authorities.”
I am not satisfied that any such failure comprises a failure to promote the child’s best interests;
·Next it is said that, in December 2017, the Independent Children's Lawyer supported a proposal by the mother that changeover should thereafter occur at the C Town Police Station.
I am not satisfied that such support, if it were given, comprises a failure to promote the child’s best interests;
·Next it is said that, on 10 January 2018, the Independent Children's Lawyer somehow or other failed to attempt to safeguard the child, by not involving herself in communication with the father’s lawyers about a proposed protection order.
It is not at all clear how that is an allegation against the Independent Children's Lawyer, and it is difficult to construe it as any kind of failure to properly act by her. Whatever be the proper construction of this claim, I am not satisfied that it demonstrates any misconduct or negligence;
·At [97] of exhibit RB-02 it is generally said that the Independent Children's Lawyer, despite being aware of non-compliance with several of my orders, has never filed an application, or otherwise raised with the Court the father’s concerns in relation to the child. It is then said that, apparently by failing so to do, “the Independent Children's Lawyer failed to safeguard her client from being exposed to the constant abuse being displayed and acted out by his mother and her partner.”
To my mind this seems to assert an obligation on the Independent Children's Lawyer to act in a way akin to a party, which plainly is not their role.
It is further said:
The Independent Children's Lawyer has done nothing but hinder and destroy the rights of her client’s need to his loving and adoring father. Independent Children's Lawyer … has failed to act, represent and deliver what she was hired to do.
This appears to be a blanket allegation that the Independent Children's Lawyer has failed to properly protect the child’s best interests and promote them.
As has been seen, I have addressed each of the allegations individually raised by the father, and I am not satisfied that, whether individually or collectively, the father’s contention is a proper characterisation of her conduct to date.
Failure to adhere to appropriate professional standards
Again I shall traverse matters which appear to fall under this category in chorological order.
·Firstly it is said that, despite being appointed Independent Children's Lawyer on 15 March 2016, in fact the Independent Children's Lawyer did not make any contact with the father until the day before the Federal Circuit Court listing on 11 April 2016. It is said that the contact, when made, was “requesting documentation via email.”
I am not satisfied that the delay between appointment and communicating with the father speaks of a failure to adhere to appropriate professional standards, or if it were alleged, a failure to promote the child’s best interests. An Independent Children's Lawyer in a case such as this will have a lot of material to come to grips with prior to the first Court appearance by them.
·Next it is said that, on 11 April 2016, at the Court event, the Independent Children's Lawyer advised another lawyer about the father’s family. The father complains that the Independent Children's Lawyer should not have discussed his personal matters outside of Court, and before the Court had commenced.
It undoubtedly was unwise on the part of the Independent Children's Lawyer, if she did so, to speak about the father to other lawyers, or to make a connection between him and his family to them. However I am far from satisfied that, even if that be a breach of appropriate professional standards, it is of a kind which requires the Independent Children's Lawyer’s discharge.
·It is said that, during the hearing on 11 April 2016, the Independent Children's Lawyer advised the Court that the person who (it seems) had recorded some video evidence of the mother, was also a litigant in the Family Court. It is said that the Independent Children's Lawyer had no right to disclose that person’s identity as a litigant.
I am not satisfied that any such disclosure by the Independent Children's Lawyer comprises a breach of appropriate professional standards.
·It is said that, on 2 June 2016, at the H Town District Court, the father unexpectedly ran into the Independent Children's Lawyer, and asked her “how is my son…” It is then said that “the Independent Children's Lawyer completely ignored [the father] instead walking off with a smug and careless look.”
I am not satisfied that any discourteousy by failing to engage in conversation with the father on that occasion comprises a breach of appropriate professional standards. To the extent that it is raised as a matter of bias, I am not satisfied that it demonstrates a want of partiality either.
·It is said that on, 28 August 2016, the Independent Children's Lawyer, despite being advised by the father of the mother’s non-compliance with orders, and the child still allegedly calling the mother’s partner “papa”, did not respond to those concerns, but only raised other matters in correspondence.
I am not satisfied that this comprises a failure to adhere to appropriate professional standards, or is a failure to promote the child’s best interests.
·It is said that, on 2 September 2017, the Independent Children's Lawyer “hired” a psychiatric assessor who, the father says, “is believed the Independent Children's Lawyer also grew up with and studied in Hobart and may have been a friend of”. It is apparently then said that the hiring of this psychiatrist was “to complete an unfavourable assessment” of the father.
Other than the father’s beliefs, there is no evidence to support any of this.
Whilst likely it would be a breach of appropriate professional standards for an Independent Children's Lawyer to select an otherwise unsuitable expert witness, solely upon some past association, and it would probably also be professionally inappropriate for an Independent Children's Lawyer to ask an expert to, in effect, undertake a hatchet job on a party, however the evidence falls well short of establishing any of that here.
·It is said that, on 21 September 2016, the father emailed the Independent Children's Lawyer, asking when he could see his son, and asking details as to his son’s welfare. It is said that no reply was made by the Independent Children's Lawyer, nor any application made to the Court.
In my view it was not incumbent upon the Independent Children's Lawyer to engage with the father by responding to each and every item of communication which he generates; the father is a very prolific communicator.
·It is said that, at about this time, the Independent Children's Lawyer failed to respond to voicemail left by the paternal grandmother.
I am not satisfied that the Independent Children's Lawyer had an obligation to respond to any voicemail left by the paternal grandmother.
·It is said that, on 11 October 2016, the Independent Children's Lawyer failed to act upon an email sent by the father to M Group, into which she was cc'd.
I am not satisfied that the failure to respond to an email into which a solicitor has been cc'd is a breach of professional standards.
·It is said that, on 13 October 2016, the Independent Children's Lawyer did not reply or otherwise act upon an email sent to her by the father, seeking to organise contact between him and the child in H Town.
I am not satisfied that the Independent Children's Lawyer has an obligation to respond to each and every item of correspondence she receives from a self-represented litigant, or this email in particular.
·It is then next said that, on 24, 26 and 30 January 2017, despite being cc'd into letters sent by the father’s lawyers to M Group about contact, the Independent Children's Lawyer did not respond.
Again, I am not satisfied she had an obligation to.
·It is said that, on 3 February 2017, the Independent Children's Lawyer failed to respond to an email sent to M Group in relation to alternate times for the father in C Town, and seeking an increase in time beyond one hour. Implicitly it is said that the Independent Children's Lawyer was cc'd into that email.
I am not satisfied that the Independent Children's Lawyer had an obligation to respond to that email, and certainly her failure to do so does not comprise a failure to adhere to appropriate professional standards.
·It is said that, on 16 February 2017, M Group advised the father by letter, copied to the Independent Children's Lawyer, that it wished to conduct a review meeting with the father in relation to the time he could spend with the child. It is said that “review meeting was never conducted or organised despite requested later on.”
I am not satisfied that any such failure can be visited upon the Independent Children's Lawyer in some respect, or that her failure to organise it was a departure from appropriate professional standards, or a failure to promote the child’s best interests.
·It is said that, on 16 April 2017, the Independent Children's Lawyer sent an email to the father’s lawyers suggesting that it would be more productive for him to direct his energies to spending time with the child rather than litigating. It is said that this is “a clear demonstration of professional negligence and apathy towards her client.”
I am not satisfied that such a recommendation – which seems to have common-sense in its favour – is either some species of departure from appropriate professional standards, or a failure to properly promote the child’s best interests.
·Finally, it is said that, on 5 February 2018, the Independent Children's Lawyer failed to respond or make alternative arrangements, in respect of an email sent by the father to the s 65L supervisor, in relation to the mother’s failure to make the child available for scheduled time on 7 and 8 February 2018.
I am not satisfied that any such failure to respond comprised either a failure to adhere to appropriate professional standards, or a failure to promote the best interests of the child.
Cumulative consideration
As has been seen, I have not been persuaded that any of the allegations raised in relation to the Independent Children's Lawyer individually warrants her removal. Further, considering all of them in totality, I am not satisfied that they speak to, or evidence, an Independent Children's Lawyer who is conducting herself in a way which requires her discharge.
In any event, there are countervailing considerations which, even if I were troubled about the Independent Children's Lawyer’s conduct, would militate against her removal. Firstly, many of the allegations raised by the father pre-date the first stage of the trial of this matter, and there is no explanation by him as to his delay in bringing his complaints to the attention of the Court by way of an application for the Independent Children's Lawyer’s removal. Secondly, the cost and inconvenience of replacing the Independent Children's Lawyer at this stage in the proceedings would be enormous. There would then be every prospect that the matter would not be able to conclude within the expected time frame of a resumed trial in August 2018. Whilst, in an appropriate case, such considerations may carry little weight, here where there is, in my view, no justification for the Independent Children's Lawyer’s removal, such considerations must loom large.
CONCLUSION
For these reasons the father’s Application in a Case for the discharge of the Independent Children's Lawyer will be dismissed. I will further direct that all outstanding applications be listed for mention at the end of July, in order that they, and the resumption of the trial, may be considered further then.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 June 2018.
Associate:
Date: 29 June 2018
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