HOWELL & CARTER (No.2)
[2017] FCCA 377
•2 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWELL & CARTER (No.2) | [2017] FCCA 377 |
| Catchwords: STATUTORY INTERPRETATION – No stipulation in Division 10 of Part 7 to power of removal of Independent Children’s Lawyer – proper interpretation of legislation. STARE DECISIS – Long standing authority of Full Court of Family Court authorising orders for discharge of Independent Children’s Lawyer – authority too entrenched to doubt its application. BIAS – Whether Independent Children’s Lawyer is amenable to removal for bias or for a reasonable apprehension of bias – Independent Children’s Lawyer not subject to rules applicable to courts and tribunals in relation to apprehended bias – father’s application for removal of Independent Children’s Lawyer dismissed. |
| Legislation: Corporations Act 2001 (Cth) Family Law Act 1975 (Cth), ss.65, 68L, 68LA, 117(2A) Matrimonial Causes Rules, reg.115A |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 |
| Applicant: | MR HOWELL |
| Respondent: | MS CARTER |
| File Number: | MLC 11211 of 2013 |
| Judgment of: | Judge Wilson |
| Hearing date: | 10 February 2017 |
| Date of Last Submission: | 17 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Hands |
| Solicitors for the Applicant: | Griese Lawyers |
| Counsel for the Respondent: | Ms H. Bonney |
| Solicitors for the Respondent: | Women's Legal Service Victoria |
| Counsel for the Independent Children's Lawyer: | Dr R. Smith |
| Solicitors for the Independent Children's Lawyer: | Clark Family Lawyers |
ORDERS
The application in a case filed by the applicant on 6 December 2016 is dismissed.
Pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth), this proceeding is transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.
Costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Howell & Carter (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11211 of 2013
| MR HOWELL |
Applicant
And
| MS CARTER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 February 2017 her Honour Judge Stewart requested me to hear and determine the application of the father Mr Howell (“the father”) for the discharge of the Independent Children’s Lawyer (“the ICL”) made by application in a case filed 6 December 2016.
In that application, the father sought orders –
a)for the discharge of the ICL appointed on 9 February 2015 pursuant to orders made by her Honour Judge Stewart;
b)appointing a new ICL; and
c)for the payment of the father’s costs.
Synopsis
For the reasons that follow, I dismiss the father’s application in the case filed 6 December 2016.
Short factual narration
On 9 December 2015 her Honour Judge Stewart made orders that the mother Ms Carter (“the mother”) have sole parental responsibility for the child X born (omitted) 2011 (“the child”) and that the child live with the mother. Various other orders were pronounced by her Honour on that day. The orders made that day followed a contested five-day hearing ending 8 December 2015, the day after which her Honour with incredible efficiency and commendable legal learning delivered an ex tempore judgment that ran for 145 paragraphs.[1] On the hearing of that application, the ICL was represented by counsel as was the mother whereas the father was not represented and instead debated the application himself.
[1] Howell & Carter [2015] FCCA 3464.
After 9 December 2015 her Honour Judge Stewart made orders in chambers on 18 July 2016 and 11 August 2016. His Honour Judge Maguire made orders on 6 October 2016. On 15 December 2016 the case returned before her Honour Judge Stewart who made orders that day.
In opposition to this application, the ICL swore an affidavit.[2] The ICL swore she was appointed sometime in February 2015. Her affidavit was detailed, reflective of a good deal of time and effort in its formulation. In it, the ICL deposed to key events on specific dates, frequently exhibiting contemporaneous documents, all of which I found helpful and useful in the determination of this application.
[2] Affidavit of Ms C sworn 7 February 2017.
Conversely, in support of his application the father affirmed the contents of a very short affidavit.[3] In it the father stated that –
a)the ICL made no attempt to investigate his allegation that the mother had previously physically and verbally abused the child;
b)the ICL was not impartial;
c)he was genuinely fearful of his child’s safety if the child were to travel overseas; and
d)the ICL made no attempt to investigate whether it was safe for the child to travel overseas.
[3] Affidavit of Mr Howell affirmed 2 February 2017.
No details of those assertions were given.
The child’s travel overseas, about which the father asserted was not the subject of investigations by the ICL, was in fact the subject of careful examination in the judgment of her Honour Judge Stewart. Ultimately, her Honour permitted the child to travel overseas. Those orders followed a five-day hearing on the point. Counsel for the ICL fully participated in that hearing.
Following the orders made on 9 December 2015, counsel who appeared before me, Mr A Hands, wrote to the ICL by letter dated 6 May 2016 on behalf of the father.[4] The ICL wrote to Mr Hands on 15 June 2016.[5] Precisely why a member of counsel was performing the work of a solicitor in writing and receiving letters to the solicitor for another party was not stated. Rule 120 of the Victorian Bar Incorporated Practice Rules forbids a member of counsel from performing solicitors’ work and solicitors’ work involves, among other things, corresponding on behalf of a client with other parties.[6]
[4] Affidavit of Ms C sworn 7 February 2017 at annexure “C-06”.
[5] Affidavit of Ms C sworn 7 February 2017 at annexure “C-07”.
[6] See paragraph 7.34 of the Victorian Bar Good Conduct Guide.
On 16 June 2016 the father copied an email to the ICL, addressed to Mr Hands, in which the father described the ICL as “human garbage” and a “human garbage toddler murderer”.[7] That appalling language in reference to a legal practitioner is not to be tolerated by this Court and I will not sanction it. There was no evidence that Mr Hands chastised his client for its use, something I found extraordinary. Mr Hands sent the ICL an email dated 27 July 2016[8] requesting the ICL to do certain things in relation to the child’s forthcoming birthday, a matter about which the ICL, quite properly, pointed out was not her role.[9] To my mind, it was also not the role of the barrister for the father to be communicating with the ICL about such arrangements. In the email dated 27 July 2016, Mr Hands wrote that the father wanted “Spiderman to say Happy Birthday from daddy, gran and [the father’s family]”.[10]
[7] Affidavit of Ms C sworn 7 February 2017 at annexure “C-08”.
[8] Affidavit of Ms C sworn 7 February 2017 at annexure “C-10”.
[9] Affidavit of Ms C sworn 7 February 2017 at annexure “C-11”.
[10] Affidavit of Ms C sworn 7 February 2017 at annexure “C-10”.
That is not the role of counsel.
Mr Hands has practised as a barrister for quite long enough for him to be familiar with acceptable conduct expected by a member of the Victorian Bar.
In essence, the father contended in this application that on 20 December 2013, over three years ago, the mother allegedly engaged in physical and verbal abuse of the child and that the ICL did not investigate that. Her Honour Judge Stewart addressed an incident about which the father complained at paragraph 127 of her Honour’s reasons. It is not entirely apparent whether that event occurred on 20 December 2013. Her Honour addressed a different event involving the ICL and the father at paragraph 102 of her Honour’s reasons, in which her Honour responded to the father’s assertions by concluding that it was “absolutely false that the Independent Children’s Lawyer [had] done anything of the sort”.[11]
[11] Howell & Carter [2015] FCCA 3464 at p.22.
Her Honour catalogued an array of difficult encounters between the father and the ICL. Some of those encounters reflected highly inappropriate overtures by the father. When read in the aggregate, it seemed to me that the ICL was the victim and not the initiator of such inappropriate conduct. To my mind, that rendered it more probable than not that this present application required me to examine the details of it with real scrutiny, as I have done.
When reduced to its essence, the father’s grievance in relation of the ICL amounted to two issues, namely that the ICL –
a)allegedly failed to investigate an incident on 20 December 2013; and
b)failed to ascertain that it was safe for the child to travel overseas.
As to both points, her Honour Judge Stewart was persuaded that no safety concerns existed for the child travelling overseas. Her Honour permitted such travel pursuant to the orders made on 9 December 2015. I reject the assertion in paragraph 7 of the father’s affidavit that the ICL did anything wrong in relation to the issue of the child travelling overseas. Any complaints that predated her Honour’s judgment merged in the judgment itself. Not only should the father not be permitted to agitate those grievances now, but the events of December 2013, in so far as allegations of domestic violence were concerned, were exhaustively addressed by her Honour in her Honour’s reasons given on 9 December 2015. It must not be overlooked that her Honour permitted the child to travel. In the face of that ruling by her Honour it is not proper for the father to now assert that the ICL did not adequately investigate the safety of the child’s travel. After all, a judge of this Court has expressly sanctioned the child travelling. To my mind, the father’s current application in the face of that ruling smacked of a litigant being dissatisfied with the judge’s determination and that the litigant is now blaming the ICL for the result. The father should not be permitted to do that.
This application
It is a fair distillation of the father’s submissions on the hearing of this application that –
a)the relevant section of the Family Law Act1975 (Cth) (“the Act”) empowers the court to make an order discharging the appointment of the ICL;
b)the power to discharge the ICL is incidental to the power to appoint the ICL;
c)ultimately, an order discharging the ICL is dependent upon whether it is in the best interests of the child to do so;
d)the ICL is bound by rules of professional behaviour as between the court as well as between all parties to the litigation;
e)in keeping with the ICL’s duties as a legal practitioner, the ICL was at all times required to avoid circumstances by which it could be said that the ICL engaged in conduct giving rise to a reasonable apprehension of bias;
f)the ICL was not permitted to engage in conduct giving rise to actual bias;
g)the ICL in fact and in law engaged in conduct that amounted to actual or apprehended bias; and
h)in the circumstances, this Court must discharge the ICL.
I reject most of those submissions. Let me explain why.
Section 68L of the Act confers the power to appoint the ICL. The legislative forerunner to the present s.68L was s.65 of the Act, although under s.65, the court ordered the child to be “separately represented”. The power to order separate representation of the child had as its genesis in reg.115A of the Matrimonial Causes Rules, permitting the appointment of a guardian ad litem. The legislative background to s.65 was examined by Fogarty J in In the Marriage of Harris[12] (“Harris”) putting the current s.68L of the Act in context.
[12] (1977) 29 FLR 285.
Section 68L of the Act makes provision for the appointment of an ICL and the circumstances in which an order for such appointment are to be made whereas s.68LA of the Act makes provisions about the detail of the ICL’s role. In its current iteration, the precise stipulations of Division 10 of Part 7 of the Act (incorporating s.68L and s.68LA) give legislative effect to various judicial observations about the metes and bounds of the role of the person who provides separate representation for the child. Those judicial observations include comments the veneration of which have stood from the early days of the operation of the Act, including such cases as In the Marriage of Todd,[13] In the Marriage of Pailas,[14] In the Marriage of Demetriou[15] (“Demetriou”), In the Marriage of Wotherspoonand Cooper[16] and others.
[13] (1976) FLC 90-001.
[14] (1976) FLC 90-083.
[15] (1976) FLC 90-102.
[16] (1981) FLC 91-029.
In its current iteration, s.68LA of the Act sets out in considerable detail the general nature of the role of the ICL as well as the specific duties of the ICL. The ICL’s duty to act impartially is now codified in s.68LA(5)(a) of the Act whereas prior to the operation of that section that duty emanated from the observations of the Full Court
(Nicholson CJ, Simpson and Finn JJ) in In the marriage of Bennett.[17]
[17] (1991) FLC 92-191.
So far as the precise details of the ICL’s obligations in the performance of the ICL’s role was concerned, the legislation and cases have seemingly deliberately eschewed making any prescriptions. That may explain why ss.68LA(4) and 68LA(5) of the Act are broad in respect of the things those sections state, especially the tasks mandated in s.68LA(5) of the Act. Nowhere is there a specific obligation imposed upon the ICL to investigate anything in particular. The statutory obligations are expressed in mandatory terms in ss.68LA(2), (3) and (5) of the Act, each subsection being expressed in terms that the ICL “must” do the things there set out. Investigation is not one of those mandatory obligations.
As a matter of statutory construction, Division 10 of Part 7 of the Act is to be construed in accordance with well-established canons of statutory construction.
Ultimately, it is the primacy of the words used in the legislation itself that determines the proper construction of the legislation. Since the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (“Project Blue Sky”),[18] Australian law has held that the primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute.[19] That much is consistent with the observations of Barwick CJ in Taylor v Public Service Board (NSW).[20] According to Lord Scarman’s speech in the House of Lords in Southwest Water Authority v Rumble’s[21] as well as the observations of Wilson and Mason JJ in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation,[22] the meaning of a particular legislative provision must be determined by reference to the language of the instrument viewed as a whole. The context, the general purpose and policy of the provision of a piece of legislation as well as its consistency and fairness are surer guides to meaning than is the topic with which the legislation is constructed.[23] As was held in Toronto Suburban Railway Co v Toronto Corporation,[24] Minister for Lands (NSW) v Jeremias[25] and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd,[26] the process of construction must always begin with an examination of the context of the provision that is being construed.
[18] (1998) 194 CLR 355.
[19] (1998) 194 CLR 355 at [69].
[20] (1976) 137 CLR 208.
[21] [1985] AC 609.
[22] (1981) 147 CLR 297.
[23] (1998) 194 CLR 355 at [69].
[24] [1915] AC 590, 597.
[25] (1917) 23 CLR 322
[26] (1985) 157 CLR 309.
High Court authority of very long standing has prescribed that a court construing a statutory provision must strive to give meaning to every word of the relevant provision. So much was held in TheCommonwealth v Baume[27] as well as in Chu Kheng Lim v Minister for Immigration.[28] No sentence, clause or word is superfluous, void or insignificant if by any other construction they may all be made useful and pertinent.[29]
[27] (1905) 2 CLR 405, 414 and 419.
[28] (1992) 176 CLR 1, 12.
[29] R v Berchet [1794] EngR 1806.
In Project Blue Sky the majority pointed out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended those words to have.[30] Ordinarily, that meaning will correspond with the grammatical meaning of the relevant provision.
[30] (1998) 194 CLR 355 (at [78]).
More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[31] the majority (Hayne, Heydon, Crennan and Kiefel JJ) held that the task of statutory construction must begin with a consideration of the text itself and that historical considerations and extrinsic material cannot be relied upon to displace the clear meaning of the text.[32] Other decisions of the High Court reflect similar reasoning such as Yanner v Eaton,[33] Yarmirr v Northern Territory,[34] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[35] Stevens v Kabushiki Kaisha Sony Computer Entertainment,[36] Carr v Western Australia,[37] Director of Public Prosecutions for Victoria v Le[38] and Northern Territory v Collins.[39]
[31] (2009) 239 CLR 27.
[32] (2009) 239 CLR 27 at [47].
[33] (1999) 201 CLR 351, 366 (at [17]).
[34] (2001) 208 CLR 1, 38–39 (at [13]–[14]).
[35] (2001) 207 CLR 72.
[36] (2005) 224 CLR 193.
[37] (2007) 232 CLR 138.
[38] (2007) 232 CLR 562.
[39] (2008) 235 CLR 619.
Applying those canons of construction, there being no mention of the ICL “investigating” the matters about which the father complained in this application, I do not accept the primary submission of the father that the ICL was under any such obligation as that for which the father contended. The Full Court of the Family Court of Australia has held as much in T v S.[40]
[40] [2001] FamCA 1147 at [195].
My view is reinforced by the express words of s.68LA of the Act. Under s.68LA(2) of the Act, the ICL is required to form an independent view of what is in the best interests of the child. Under s.68LA(5) of the Act, the ICL must act impartially. Most significantly for present purposes, s.68LA(5) of the Act does not confer upon either party to the litigation any power to enforce the ICL’s obligation to act impartially. In other words, neither the father nor the mother have standing to compel the ICL to act impartially if it were the case that facts existed (none of which are open on the evidence presently before me) to that effect.
Under s.68LA(4) of the Act the ICL is not the child’s legal representative. Yet under the whole of s.68LA of the Act the ICL must act in the proceeding a way that is in what the ICL believes to be the best interests of the child.
Mr Hands on behalf the father flirted with the concept that this Court exercises a supervisory role in relation of the conduct of the ICL such that this Court has power to pass judgment on the ICL’s decision to do or not to do certain things. To that let me say that no component of Division 10 of Part 7 of the Act gives any statutory empowerment to such a suggestion. In so far as the ICL has been conferred with discretions by reason of the ICL’s statutory entitlements to do as s.68LA(2) of the Act states in acting in what the ICL believes to be the best interests of the child, it seems to me that any such discretion carries with it the usual constraints in relation to the exercise of discretion as espoused in cases such as House v The King.[41] No evidence existed in this case that the ICL acted outside of the proper exercise of the ICL’s discretions.
[41] (1936) 55 CLR 499.
To that end, any failure by an ICL to comply with guidelines (those being “guidelines” that guided what used to be the separate representative) did not amount to acts of impropriety, as was held by the Full Court of the Family Court of Australia (Fogarty, Baker and Kay JJ) in Re R.[42] Relying on an array of learning to that date, the Full Court held that a significant discretion existed as to the manner in which the separate representative presented the case. Chronologically, those authorities included Demetriou, Harris, Separate Representative v JHE & GAW[43] (“JHE & GAW”), In the Marriage of Lyons and Boseley,[44] In the Marriage of Sampson,[45] In the Marriage of Waghorne and Dempster,[46] In the Marriage of B and R[47] and others.
[42] (1995) FLC 92-564.
[43] (1993) 16 Fam LR 485.
[44] (1978) FLC 90-423.
[45] (1977) FLC 90-253.
[46] (1979) FLC 90-700.
[47] (1995) FLC 92-636.
To some extent, the precise terms of the guidelines that formerly existed have been incorporated into s.68LA(5), although not all. As to which guidelines see P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener)[48] (Nicholson CJ, Fogarty and Finn JJ).
[48] (1995) 19 Fam LR 1.
From the foregoing, it will be apparent that the precise circumstances governing the appointment of the ICL and the stipulation about the role and obligations of the ICL are now enshrined in Division 10 of Part 7 of the Act, codifying the significant body of case law that had existed up to that point in time.
Removal or discharge of the ICL
Some of the textbooks and cases on this field of jurisprudence speak interchangeably of the word “removal” and “discharge” of the ICL. To my mind, the precise nomenclature is unimportant in respect of the phrase used. Both involve the court making an order the effect of which is to terminate the appointment of the ICL.
The more important matters on this issue are –
a)the source of the power to terminate the ICL’s appointment; and
b)the grounds for the exercise of that power.
Source of the power terminating the appointment of the ICL
Even a cursory examination of the terms of Division 10 of Part 7 of the Act reveals that specific provision is made for the appointment of the ICL whereas the legislation is silent about the termination of any such appointment. On behalf of the ICL, Dr Smith of counsel referred me to the decision in Re K[49] in support of his submission that by reason of that authority it was not contentious that a court exercising powers under the Act has the power to discharge an ICL. Slightly prior to the 1994 decision in Re K, Strauss J made an observation about the point in JHE and GAW where his Honour held as follows –
Whilst I have not heard argument on this matter, it seems to me that where a separate representative takes steps in proceedings which cannot be justified or which are inappropriate, then the court could order the removal of the separate representative.[50]
[49] (1994) FLC 92-461.
[50] (1993) 16 Fam LR 485 at 515.
The point was not the subject of careful consideration by Strauss J nor was any authority cited in support of his Honour holding as his Honour did. It may fairly be said that his Honour’s observations were made in the context of a costs order. Importantly, his Honour did not cite any legislative basis for the comment quoted immediately above nor did his Honour cite any learning on point as giving any jurisprudential basis for the conclusion that such an order could be made. Be that as it may, the mere fact that Strauss J made those observations enabled Chisholm J to state the accuracy of them in T and L.[51]
[51] [2000] FamCA 351.
Without developing the reasoning, Chisholm J referred to two earlier decisions as founding the power to order the removal of a child’s representative. The first was the decision of Hannon J in In the Marriage of Pagliarella[52] (“Pagliarella”). There, Hannon J held that s.65 of the Act empowered the court to appoint the separate representative and the power of appointment carried with it the power of discharge “if proper cause is shown that it is appropriate or desirable” to do so.[53]
[52] (1993) 16 Fam LR 688.
[53] (1993) 16 Fam LR 688 at 690.
The second decision was that of Fogarty J in In the marriage of F and R (No.2)[54] (“F and R”). There, his Honour held that an order could be made for the removal of the separate representative where he or she took steps in a proceeding which could not be justified.
[54] (1992) 15 Fam LR 662.
With the very greatest respect, in my view the reasons in F and R conflate the two distinct concepts of the source of the power to terminate the appointment of the separate representative with the grounds for so doing. And with equal great respect to Hannon J in Pagliarella, I do not agree that the power to appoint a separate representative axiomatically carries with it the power to discharge that separate representative. In my view, the point is to be resolved purely and simply by applying principles of statutory construction to which I have averted above.
The point may be tested by analogy. A liquidator, receiver and company administrator under corporation law are appointed and may be removed in the circumstances set out in the enabling legislation that is to say, under the precise terms of the relevant sections of the Corporations Act 2001 (Cth). In respect of a liquidator, receiver or company administrator, it could not be sensibly contended that the power of appointment of any one of them axiomatically carries with it the power to discharge them and terminate their appointment. Equally, a trustee appointed by the court may be removed in the circumstances provided for by the legislation. The same applies to a guardian or administrator appointed under legislation governing the appointment and functions of both. There is no legal principle of which I am aware that in relation to a statutory person such as the ICL the power of appointment axiomatically carries with it the power of discharge of that appointment.
In making those observations I recognise that they have very little in the way of any precedent value.
My views are those of a judge of an intermediate trial court and, as is evident from the comments above, my views stand at odds with the views of several judges of a superior court. So, according to principles of stare decisis, those other views of judges of the Family Court of Australia must be followed, irrespective of my views about the legal correctness of those views. The weight of authority is too great for me to make a holding in this case that is inconsistent with them. As a result, I am forced to adopt them. Those authorities include Lloyd v Child Representative,[55] T and L, W and M,[56] Knibbs and Knibbs,[57] Kingley and Arndale (No.2),[58] Bondai and Bretton (No.2),[59] Arndale and Kingley (No.3)[60] and Dickens and Dickens.[61]
[55] (2000) FLC 93-045.
[56] [2006] FamCA 512.
[57] [2009] FamCA 840.
[58] [2010] FamCA 968.
[59] [2010] FamCA 1237.
[60] [2011] FamCAFC 128.
[61] [2016] FamCA 115.
It seems to me that the power to order the removal of an ICL is so entrenched in family law jurisprudence that it cannot now be sensibly contended that no such power exists.
Grounds for removal
Whatever the aggregated bases for the removal of an ICL may be, it has never been the law that an ICL or a separate representative may be removed on account of failing to abide the wishes of one of the parties to the litigation.
Mr Hands submitted that the ICL in this case had exhibited conduct that gave rise to an apprehension of bias. I raised with Mr Hands how that concept arose in a family law proceeding, especially as cases concerning bias, whether actual or apprehended, more usually arise in the context of statutory office holders who commonly have functions that involve decision-making. Typically among them are judges (as canvassed in Ebner v Official Trustee in Bankruptcy[62] (“Ebner”)), administrative tribunals (as discussed in Re Refugee Review Tribunal; Ex parteH[63]) and local council panels (as is canvassed in Isbester v Knox City Council[64] (“Isbester”)). One of the leading pronouncements on point remains that of Mason J in Re JRL; Ex parte CJL[65] (“Re JRL”).
[62] [2000] HCA 63.
[63] [2001] HCA 28.
[64] (2015) 255 CLR 135.
[65] (1986) 161 CLR 342, 352.
The real issue in this case was whether legal principles concerning actual or apprehended bias applied to the ICL. If they did, the secondary issue was whether the father’s grievances in fact and in law amounted to actual or apprehended bias.
For the reasons set out below, I am of the view that concepts of bias – actual or apprehended – do not apply to the ICL.
The ICL does not represent the child, still less does the ICL advance any interest supportive of either parent of the child. That much is plain according to any construction of Division 10 of Part 7 of the Act. The ICL’s role and functions are set out in s.68LA(2)(a) of the Act (the statutory obligation to form an independent view, based on the evidence available to the ICL, of what is in the best interests of the child). The statutory obligation is also set out in s.68LA(2)(b) of the Act (acting in relation to the proceeding in what the ICL believes to be the best interests of the child).
In the performance of his or her obligations, the ICL must do the things enumerated in the various subsections of s.68LA(5) of the Act. Relevantly paraphrased, they are –
a)acting impartially in dealings with the parties to the proceeding;
b)ensuring the child’s views are fully put before the court;
c)analysing any report to be used in court and if so, ensuring matters are properly brought to the court’s attention;
d)endeavouring to minimise the trauma associated with the proceeding; and
e)facilitating an agreed resolution of matters in issue in the proceeding to the extent that doing so is in the best interests of the child.
Unlike cases involving a judge or a tribunal, the ICL does not hear evidence or receive representations from any party. That phenomenon immediately differentiates cases of the sort mentioned in Re JRL from the ICL in so far as those other cases involve the exercise of a judicial function. In Re JRL, Mason J prefaced his observations about a central issue in the system of justice administered in Australian courts being that it should be fair, open, impartial and even-handed. Those observations apply to judges. Court counsellors (as they were called in Re JRL) were very different in function and in legislative purpose to the ICL, even though both were officers of the court. But unlike the court counsellor mentioned in Re JRL, the ICL does not conduct informal conferences with a judge of this Court. As Kirby J pointed out in Ebner, decision-makers in the context of administrative law are ordinarily subject to rules forbidding the decision-maker holding of a pecuniary interest and that any such contravention of that rule will ground an apprehension of bias application.
In my judgment, rules of actual or apprehended bias have no application to the ICL. The general nature of the ICL’s role is set out in ss.68LA(2) and 68LA(5) of the Act by requiring the ICL to form an independent view of what is in the child’s best interests and to act accordingly as well as to act “impartially in dealing with the parties to the proceeding”.
The court in Isbester held that questions of bias are largely fact based. The facts of this case do not reveal the slightest suggestion of bias on the part of the ICL. For reasons already given, in my judgment legal concepts referrable to actual or apprehended bias have no application to the ICL.
The upshot of this application
The father’s application must be dismissed.
Counsel informed me that residual issues remain to be determined in this litigation. In answer to my enquiry about the duration of those residual issues, the estimate given to me was in the vicinity of five days. I told the parties that my existing commitments for the hearing of a trial of that duration were heavy and that I was unlikely to be able to list a matter for that duration until late-2018. On that basis, the parties have sought the transfer of this proceeding to the Family Court of Australia.
To my mind, the interests of justice in this case are better served by a judge of the Family Court of Australia dealing with this case ahead of the earliest time I might be able to get to it. In those circumstances, I make an order transferring this proceeding to the Family Court of Australia.
So far as costs were concerned, the father sought them. He failed in this application. If costs followed the event, he would be met with an order requiring him to pay the costs of the ICL and the mother. Each retained counsel.
However, there is insufficient information at my disposal to enable me to ascertain whether the elements of s.117(2A) of the Act have been met.
In those circumstances, it is best that I refer to the Family Court of Australia any determination in respect of the costs of this application, which I reserve.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 2 March 2017
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