Jacobs and Faulkner
[2012] FMCAfam 1015
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACOBS & FAULKNER | [2012] FMCAfam 1015 |
| FAMILY LAW – Independent Children’s Lawyer – alleged apprehension of bias of ICL against a parent – principles to apply on application to discharge ICL – alleged failure to provide Court appointed expert with report commissioned by a party – no application made pursuant to Court rules to use second report prepared by [non-court appointed] expert – distinction between procedural decisions of ICL and those going to substantive matters for determination by Court. |
| Family Law Act 1975, ss.60CA, 68L, 68LA, 68LA(2) & (5) Family Law Rules 2004, r.15.49 Federal Magistrates Court Rules2001, rr.15.09, 15.10, 15.12 |
| Antoun v The Queen (2006) ALJR 497; (2006) ALR 51 In the Marriage of Bennett (1994) 17 Fam LR 561 Bondai & Bretton (No.2) [2010] FamCA 1237 In the Marriage of Boseley v Lyons (1978) 4 FamLN 17; [1978] FLC ¶90-423 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 In the Marriage of Harris [1977] FLC ¶90-276 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Re JRL; ex parte CJL (1986) 161 CLR 342 Knibbs & Knibbs [2009] FamCA 840 Langmeil v Grange (No.3) [2011] FamCA 171 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Lloyd & Lloyd and Child Representative (2000) FLC ¶93-045 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 In the Marriage of Pagliarella (1993) 16 Fam LR 688 SPS & PLS (2008) FLC ¶93-363 T v L (2001) 27 Fam LR 40 W & M & W [2006] FamCA 512 In the Marriage of Wotherspoon & Cooper (1980) 7 Fam LR 71; [1981] FLC ¶91-029 |
| Applicant: | MS JACOBS |
| Respondent: | MR FAULKNER |
| File Number: | CAC 130 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 24 July 2012 |
| Date of Last Submission: | 24 July 2012 |
| Delivered at: | Canberra |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr J Naumann |
| Solicitors for the Applicant: | Walsh & Blair, Wagga Wagga |
| Counsel for the Respondent: | Mr K Nicholson |
| Solicitors for the Respondent: | Schetzer Constantinou, Melbourne |
| Counsel for the Independent Children’s Lawyer: | Mr C Sperling |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW (Wagga Wagga) |
ORDERS
The Application in a Case, filed on 2nd July 2012, with respect to the discharge of the Independent Children’s Lawyer, be dismissed.
The costs of the Independent Children’s Lawyer be paid by the Father, either as agreed or taxed.
The matter be adjourned for further mention to 10th October 2012 at 10 am in Wagga Wagga.
IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Faulkner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WAGGA WAGGA |
CAC 130 of 2011
| MS JACOBS |
Applicant
And
| MR FAULKNER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9th August 2011, this Court ordered that there be appointed an independent children’s lawyer (“the ICL”) for the two children, eight year old [X] and four year old [Y], who are the subject of these proceedings. The ICL filed a Notice of Address for Service on 7th September 2011.
By an Application in a Case filed on 2nd July 2012, the Respondent Father seeks orders, among other things, to discharge the ICL, and for a new ICL to be appointed. He also seeks that the ICL pay his costs, and that this occur on an indemnity basis.
The matter was heard at short notice while the Court was on circuit in Wagga Wagga in the last week of July.
Mr Faulkner’s Application also sought certain parenting orders. However, at the conclusion of the hearing of the current application learned Counsel for Mr Faulkner foreshadowed that his client would be amending his orders sought to a change in residence for the two children whereby they would live with him and presumably spend time with their Mother. Counsel said: “… with my client still seeing his daughter at a contact centre would be an intolerable position and I give notice to your Honour that there will be an amended application being filed, whereby my client will be seeking that the children live with him in view of the position the Mother has taken.”[1]
[1] Transcript (24th July 2012) p.24.
It is agreed by all, however, that any further parenting orders must necessarily await the determination of the current disqualification application.
Currently, the children live with their Mother in [omitted], which is approximately 82 kilometres west of Wagga Wagga and approximately 67 kilometres due south of the Father’s residence.
Mr Faulkner lives in [omitted], which is approximately 82 kilometres northwest of Wagga Wagga.
It is as well to note at the outset that in relation to the Father’s application to discharge the ICL, although present for the entirety of the hearing of it, the Mother’s solicitor advised the Court that he did not wish to be heard. Thus the only submissions came from the Father’s Counsel, and Counsel for the ICL.
Summarily stated, the Father’s application is founded on two grounds which he says establish, to the requisite standard, that a reasonable bystander, properly informed, would apprehend that the ICL was biased against him. Those two grounds are: (i) the ICL’s refusal to forward to the Court-appointed expert (Dr L) an affidavit procured by the Father from another expert, which deals with, inter alia, matters pertaining to the allegation from the Mother that four year old [Y] may have been sexually abused by her Father and, therefore, is at some risk in spending time with him; and (ii) in a recent letter from the ICL to the Father’s solicitors, she refers to the Father’s Application [potentially] exposing him to an adverse costs order.[2]
[2] In the affidavit of Ms Davison (the Father’s current solicitor), filed 2nd July 2012, a further contention was made against the ICL in relation to Dr L seeking information from the Wagga Wagga Children’s Contact Service where Mr Faulkner has been spending time with [Y]. Initially, the ICL had suggested that perhaps Dr L could contact that centre directly. Among other things, on the recommendation of the Father’s former solicitors, the ICL issued a subpoena for the relevant observation and other notes from that Centre. Learned Counsel for the Father did not address this issue at all in his oral submissions. In those circumstances, I take it that Ms Davison’s concerns, ventilated in her July affidavit at para.10, do not require attention in these reasons, and that the Court need only deal with the two grounds of the application as stated.
For the reasons that follow, in my view, neither individually nor collectively do the grounds stated by the Father meet the requisite standard to establish apprehended bias on the part of the ICL. Accordingly, the Father’s Application to discharge the ICL must be dismissed. The ICL should receive her costs of the Father’s application, either as agreed or taxed.
After setting out the orders sought by Mr Faulkner only in relation to the discharge of the ICL, these reasons proceed by examining (a) the procedural history of the matter, (b) the documentary evidence adduced, followed by a summary of contentions from the affidavits of Mr Faulkner and his solicitor, which they say give rise to or support the disqualification application, (c) legal principle in relation to the duties and responsibilities of ICLs, those pertaining to the discharge of an ICL, and apprehended bias and (d) discussion and resolution.
Orders Sought
Leaving aside an order for the abridgement of time, Mr Faulkner seeks orders in relation to the ICL as follows:
· That the order appointing Legal Aid New South Wales and
Ms D as the Independent Children’s Lawyer in these proceedings be discharged;· That the Independent Children’s Lawyer pay on an indemnity basis the Husband’s costs of and incidental to this Application;
· That a new Independent Children’s Lawyer be appointed forthwith with respect to the proceedings.
Procedural History
On 24th November 2011, the Court released to the parties, a relatively brief report from a Family Consultant based at the Canberra Registry of the Court. Formally, that Report has not yet been admitted into evidence, although it is more than arguable that, based on the principles of Warnick J in SPS & PLS, the Court may reasonably infer that all parties, and the ICL, have relied upon it.[3]
[3] SPS & PLS (2008) FLC ¶93-363.
That Report contains an allegation/disclosure of abuse against the Father by [Y], which she made to her Mother.
The Report made the following recommendations (at paragraphs 29 – 32):
· [Y] could undertake supervised visits at the Wagga Wagga Child Centre until she is old enough to speak clearly of any fears or discomfort.
· Mr Faulkner could gain information by attending an Anger Management group, as well [as] a group on Child Development.
· The parents attend on an organisation such as Relationships Australia to work on their parenting relationship.
· If the matter proceeds to hearing, it might assist the Court, and the parents, if a more comprehensive assessment is completed.
On 29th November 2011, in general terms, orders were made by consent for [X] to spend specified [unsupervised] time with his Father, and for [Y] to do so, supervised at the Wagga Wagga Children’s Contact Service on a fortnightly basis.
At the time of those orders, and up until the Father’s current lawyers filed a Notice of Address for Service on 7th June 2012, the Father was represented by lawyers based in Wagga Wagga. It is nothing more than an observation, based on the Court’s regular circuit work in Wagga Wagga, as well as with multiple matters from that city that are dealt with in Canberra, that the Father’s former solicitors are long-experienced in family law proceedings.
The matter came back before the Court for further mention on 15th February 2012. At that time there was general discussion in relation to a relevant expert.
By consent, orders were made in Chambers on 12th April 2012 for the appointment of Dr L as an expert pursuant to Chapter 15 of the Federal Magistrates Court Rules2001. Those consent orders also provided for the terms of reference for Dr L’s report.
To speak somewhat generally, those terms included whether [Y] was at risk of harm from being subjected or exposed to sexual abuse or inappropriate sexual behaviour, the nature of the relationship between the siblings, and between the children and each of their parents, the parenting capacities of the parties, and other matters.
The matter came back before the Court on 16th May for a further mention, at which time it was adjourned to the Wagga Wagga circuit of the Court on 11th July.
On 2nd July, the current Application was filed on behalf of Mr Faulkner by his new solicitors.
Documentary Evidence
The following documents have been admitted into evidence unconditionally:
· Letter to ICL from Commins Hendriks: 23rd April 2012
· Report of Dr L: 1st June 2012 (released to the parties on 8th June 2012)
· Letter from ICL to Schetzer Constantinou: 19th July 2012 (discussed at the hearing but only formally admitted by agreement, post the hearing)
An affidavit from Dr K, filed on 18th April 2012, which contained a report from him that was commissioned by Mr Faulkner, was admitted only for the purposes of the current application.
Of central importance to the current application is a letter from the ICL to Commins Hendriks, dated 20th April 2012. A copy of that letter is Annexure B to Ms Davison’s affidavit, which was filed on 2nd July. That letter was a reply to a letter from Commins Hendriks, dated 18th April, which is Annexure A to Ms Davison’s affidavit.
Also annexed to the same affidavit are copies of the following correspondence:
· Letter from Schetzer Constantinou to ICL: 5th June 2012
· Letter from ICL to Schetzer Constantinou: 6th June 2012
· Letter from Schetzer Constantinou to ICL: 8th June 2012
· Letter from ICL to Schetzer Constantinou: 21st June 2012
· Letter from Schetzer Constantinou to ICL: 21st June 2012
Affidavit Evidence
Two affidavits were filed in support of the Application, one by
Mr Faulkner, the other by his solicitor, Ms Davison. They were both filed on 2nd July.
Mr Faulkner’s Affidavit
The Father’s affidavit deals with parenting orders he seeks, as well as the application to discharge the ICL. Confining comment solely to the latter, I note the following from his affidavit.
Understandably, Mr Faulkner expresses concern about the allegations against him that involve his daughter [Y]. He also confirms that, on his own initiative he sought out an expert, Dr K, to undertake a “psycho-sexual assessment.” He avers at paragraph 20 of his affidavit, and I have little doubt of it, that he took this course to do what he could to “assist in these proceedings and assist in the parenting issues, currently before the Court.”
Mr Faulkner says that his previous solicitors sent a copy of Dr K’s Report to the ICL and to the Mother’s solicitors. Those solicitors sought confirmation from the ICL that Dr K’s report would be provided to Dr L.
I interpose here to note that in the letter from his solicitor to the ICL, dated 8th June, the following is stated: “… it is suffice to say [sic] that the Independent Children’s Lawyers [sic] attitude to this issue [of
Dr K’s report] and the approach of our client’s former solicitors caused our client such concern that he has now engaged this firm to represent him in these proceedings.” Thus it is clear that Mr Faulkner’s disquiet has a twofold source and focus: (a) his former solicitors and (b) the ICL.
He then notes, at paragraph 24 of his affidavit, that the ICL responded saying that in her view Dr K’s report “sought to adduce evidence from an additional expert witness on the same issue that which [sic] Dr L was addressing. The ICL further maintained that I had done so without the Court’s permission and in breach of various Court Rules and legislative provisions.” He then outlines his understanding of the purpose of Dr K’s report.
Further, Mr Faulkner notes, at paragraph 25, that his former solicitors confirmed that Dr K’s report was distinct from the kind of report that was being prepared by Dr L, and expresses his incredulity at the conduct of his former solicitors, Commins Hendriks.[4]
[4] He states in his affidavit: “For reasons that I cannot understand, my solicitors took no further issue or objection to the ICL’s attitude towards Dr K’s report.” The relevant letter from his former solicitors to the ICL, dated 23rd April 2012, is Exhibit A. That letter makes no mention of the ICL confirming that Mr Faulkner may consider making an application to have the issues surrounding the use of Dr K’s report determined by the Court.
Next Mr Faulkner outlines again (paragraph 26) his concern with the conduct of his former solicitors. He then recounts (paragraphs 27 - 28) the next step with his current solicitors who gave notice to the ICL of an intention to make an application to prevent the release of Dr L’s report, pending him being provided with Dr K’s report, but then accepting that, due to its imminent release, such an application was otiose (“… there was little value at that point in those circumstances making an urgent Application to stay the release of the Report.”).
The gravamen of Mr Faulkner’s current application is then addressed (paragraph 30). It is presented in terms of him ‘appropriately engaging’ Dr K on matters “quite distinct and separate from matters addressed in the Family Report.” He then describes what he perceives to be “the ICL’s vigorous opposition to my conduct in this regard” which in his view “causes me real concern as to a bias that the ICL now has against me in these proceedings.”
I pause here simply to record that the case law (discussed in detail later in these reasons) makes plain that the relevant test for apprehended bias is an objective test. Significant parts of Mr Faulkner’s affidavit are understandably crafted in terms of his subjective assessment, replete as it is with references to “I am extremely concerned” (paragraph 30), “it appears to me” (paragraph 31), “I am of the view” (paragraph 32), and similar statements.
Further, his reference or description of the ICL’s correspondence as her “vigorous opposition” is, respectfully, unfortunate. The Court may perhaps take judicial notice that the writing of three letters to his lawyers – past and present – in which there is a statement of the ICL’s position and a reference to the Court’s rules and the usual procedure for the Court to determine the issue at hand hardly constitutes “vigorous opposition.” Perhaps this is an instance, not uncommon in family law litigation, of a concerned parent who has become so embroiled in matters, and so zealous in their prosecution, that a relevant level of objectivity has, at least for the moment, been clouded.
Mr Faulkner asserts that the ICL has formed a prejudicial and biased view of him and his conduct of the proceedings. He further avers that ‘it appears to him’ “that the ICL is making decisions, including as to the admissibility of evidence that I seek to rely upon, which is not the role of the ICL.”
In paragraph 32, Mr Faulkner states: “I am of the view that the ICL is biased against me and such bias has already, and is likely to continue to influence the conduct of these proceedings, unless and until the ICL is discharged.”
I observe here that Mr Faulkner’s language may have the appearance of a claim of actual bias, rather than as submitted by his learned Counsel of apprehended bias. In these reasons, in the light of the affidavit of Ms Davison, and the submissions of Mr Faulkner’s Counsel, I proceed only on the basis that the application is one of apprehended bias.
In addition to this observation, which I put down to enthusiastic drafting and or slightly infelicitous terminology or expression,
Mr Faulkner’s apprehension that the ICL’s [alleged] bias “is likely to continue to influence the conduct of the proceedings” I also take to be a somewhat zealous overstatement. Parties, and the ICL, are essentially free to conduct matters before the Court as they deem appropriate. As for “the conduct of the proceedings”, that falls specifically within the sole province of the Court. Given the zealous tone and expression in the affidavits filed, and the sensitive nature of the application for all concerned, I do not take umbrage at any – doubtless unintended – slight on the conduct of the proceedings by the Court. To the degree that it is necessary or apposite, I simply wish to assure all parties, and the ICL, that the conduct of the proceedings will remain firmly in the grasp of the Court, uninfluenced by either party or the ICL, save in accordance with due process for all, compliance with the relevant provisions of relevant legislation, relevant case law, and relevant evidence properly put before the Court.
The final matter to note from Mr Faulkner’s affidavit is that he again expresses his lack of confidence in the ICL to act in the future in a manner that is “independent and unbiased towards me.”
Here, I simply observe that s.68LA of the Family Law Act 1975 (“the Act”) details with some particularity the role and responsibilities of an ICL. Section 68LA(2) refers specifically to the ICL forming an “independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child.” This conforms, certainly in the process and primary focus, with the Court’s ultimate responsibility to make orders that are in the children’s best interests having regard to the requirement that the children’s best interests are the paramount consideration, as stipulated in s.60CA of the Act.
Further, s.68LA(5) requires the ICL to act impartially in dealings with the parties to the proceedings. Although there was reference in Ms Davison’s affidavit in general terms to the ICL’s duty to act impartially, and while there was also reference to s.68L (concerning the appointment of an ICL), there is no specific reference in any material filed on behalf of Mr Faulkner, or in submissions on his behalf, to any part of s.68LA and its detail in relation to the role and responsibilities of an ICL. Whatever of that, it must follow that Mr Faulkner’s concern with the ICL is that, either deliberately/knowingly or negligently, he apprehends that (i) she will flout the statutory obligation to act impartially as specified in s.68LA(5), and or (ii) she will not act in the best interests of the children, as required by s.68L(2).
Ms Davison’s Affidavit
As previously noted, the affidavit of Mr Faulkner’s solicitor, Ms Davison, was filed on 2nd July.
She first outlined in general terms the advice she has given to Mr Faulkner concerning the roles and responsibilities of the ICL.
Next she summarised, by reference to the High Court decision in Johnson v Johnson, the now long-accepted test for apprehended bias.[5] At paragraph 4.2 of her affidavit, Ms Davison refers to the test in the following terms (emphasis in original):
Not only my client, but a fictitious bystander observing what the ICL has said and done throughout these proceedings, might reasonably apprehend that the ICL has not to date, and might not if she remains the ICL, bring an impartial and unprejudiced mind to the conduct of the proceedings, but rather in this case the ICL might have manipulated the proceedings to achieve a particular result so that her continued involvement in these proceedings is forever tainted.
[5] Johnson v Johnson (2000) 201 CLR 488.
It is important, even at this juncture, to note the following.
First, the test, as expressed by Ms Davison in this paragraph (later corrected in paragraph 5) to a “fictitious bystander” is incorrect, in so far as it is at variance with the most recent expressions of the relevant test by the High Court.[6] In the High Court’s most recent discussion of apprehended bias (and all the recent High Court authority to which the Court therein referred), there is no reference to any such entity as a “fictitious bystander.” As stated by the High Court in Michael Wilson & Partners Limited v Nicholls, at [31] – [33] (internal references omitted), the relevant test is:[7]
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
[6] Kirby J in Johnson, at [53], refers to the “fictitious bystander.” The plurality in Johnson, at [13], simply refers to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner, 205 CLR at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J).
[7] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
Secondly, the latter part of Ms Davison’s accusation against the ICL – “in this case the ICL might have manipulated the proceedings to achieve a particular result so that her continued involvement in these proceedings is forever tainted” – could be taken as tantamount to an allegation of professional misconduct, and or a claim of actual bias. To allege that a senior lawyer (and an ICL in particular) (or any lawyer for that matter) has manipulated some part of proceedings is a most grave charge.[8] The ICL’s Counsel made no such submission.
[8] Again I note that, notwithstanding the repetition of language of actual bias (e.g. ‘manipulation of proceedings to achieve a particular result’) I do not take the application to be based on anything other than apprehended bias – hence the language of “might.”
Thirdly, it is patently the case that there has been no determination by the Court of any relevant or substantive matter before it in the current proceedings. Parenting orders were made by consent; the appointment of Dr L was also made by consent. All other substantive issues have yet to be determined. In such circumstances, the claim of real or apparent manipulation of the proceedings by any party, or the ICL, has no foundation. It should not have been made.
Fourthly, I simply repeat what I said earlier in these reasons in relation to the conduct of the proceedings remaining the sole prerogative of the Court.
In paragraphs 7.1 – 7.14, Ms Davison recounted both some of the procedural history and the correspondence between the ICL and
Mr Faulkner’s solicitors, past and present. Of singular importance are paragraphs 7.4.1 – 7.4.3 in Ms Davison’s affidavit. Summarising the ICL’s objection to Dr K’s report going to Dr L, there she said (emphasis in original):
Dr L had been appointed by consent by all parties as “the Court expert” and as “the single expert”;
The Husband had not previously indicated he had any further material he wished Dr L be provided with and had not indicated he was obtaining an “alternative report”; and
After quoting various rules from the Family Law Rules and the Federal Magistrates Court Rules, the ICL concluded the Husband was in breach of those Rules for having retained another expert witness on the same issue [emphasis added]. On that basis the ICL concluded that Dr K’s affidavit was an “inadmissible document.”
In the next paragraph, Ms Davison referred to the ICL seeking that
Mr Faulkner not speak to Dr L about Dr K’s report when he attended upon him.
It is important to note here – and it is repeated later in these reasons – the singularly important omission in this affidavit, and likewise in submissions, to make any reference to the remainder of the ICL’s letter of 20th April 2012.
In that letter, after referring to relevant sections of this Court’s Rules, as well as those parts of the Family Law Rules that concern use of reports from an expert who is not court appointed, the ICL relevantly said (emphasis added):
In those circumstances, we are of the view that the affidavit of
Dr K is in [sic] inadmissible document and we do not intend to provide a copy of it to Dr L.If you wish Dr L to be provided with a copy of your report you will need to have the issue of the admissibility of Dr K’s report determined by the Court.
The highlighted part of the ICL’s letter is never cited by Ms Davison, nor, unfortunately, was it referred to in submissions. Why such an unfortunately selective presentation of the ICL’s position, where she specifically invited Mr Faulkner, or directed his attention, to have the issue determined, not by her, but by the Court in accordance with the relevant Rules of Court, has never been explained.
Although the omission and selective presentation of evidence in relation to the ICL’s letter of 20th April has never been explained, Ms Davison (as noted above) annexed subsequent correspondence between her and the ICL. It is helpful to summarise it.
For example, in her letter to Ms Davison of 6th June, the ICL sent copies of relevant correspondence between the ICL and Mr Faulkner’s former solicitors, including her seminal letter of 20th April. In her 6th June letter, the ICL confirmed that the issue of Dr K’s report had been raised only shortly prior to the parties attending on Dr L, but that since being raised “to date no application has been made by your client [Mr Faulkner] with respect to Dr K’s report.”
The final paragraph of that letter stated (emphasis added):
It is our view that the appropriate course is for Dr L [sic] report to be released and if the parties then wish Dr L be provided with Dr K’s report for that issue to be determined by the Court and if so then Dr L can then be provided with Dr K’s report and comment as to whether or not it impacts on his findings or recommendations.
Subject to further comment below, and to state the obvious, this is the second letter in which, by providing copies of earlier correspondence, the ICL (a) directed attention to the Court rules in relation to expert reports and that they be followed, and (b) straight-forwardly suggested to Mr Faulkner’s solicitors to make an application in accordance with those rules to determine whether, and if so when and how, Dr K’s report should be provided to Dr L for further comment. Why there has been no reference to this paragraph also remains an acute and singular omission.
Further, by letter of 7th June, the ICL again invited Mr Faulkner’s solicitors to address the issues raised in her letter of 6th June, which included the invitation to make an application to the Court for the proper use of Dr K’s report. Further, and in my view not unreasonably, the ICL inquired of Ms Davison why the issue of Dr K’s report going to Dr L had not been raised when the matter was before the Court on 16th May.[9]
[9] In this regard, I note that Ms Davison also annexed a copy of Commins Hendriks’ letter to the ICL, dated 8th May 2012 (annexure I). In that letter, Commins Hendriks (a) advises that Mr Faulkner will be changing solicitors, (b) suggests obtaining the contact centre’s notes via subpoena, and (c) in view of Dr L’s report likely being unavailable at the next mention date, confirms that they would be seeking an adjournment, which would also permit Mr Faulkner’s new solicitors to become apprised of the file.
In the face of these three letters from the ICL, in which she suggested or advised that Mr Faulkner make an application in accordance with the prescribed procedures to have the Court determine the appropriate use of Dr K’s report, in my view, it borders on the astonishing how it could be contended that the ICL had either (a) usurped the function of the Court regarding the determination of the admissibility of expert evidence, or (b) that she had formed a particular and already biased view in relation to Mr Faulkner and the conduct of his case.
Moreover, in the responses by Ms Davison (and similarly in submissions) no distinction is made in relation to procedural issues, such as whether a report should or should not go to a court appointed expert, and matters of substance, such as parenting orders and issues concerning any alleged ‘risk.’ In my respectful view, the determination of whether a report should be provided to another expert is essentially a matter of procedure and process. Its evidentiary utility and issues of “weight” come later. Indeed, had the Rules of Court been followed at an early point in time and an application made as suggested by the ICL, the current application, I suggest, would have been entirely unnecessary.
I note that in her affidavit (e.g. at paragraph 7.11), Ms Davison referred to the report of Dr L as the “family report.” Respectfully, there was a family report prepared by a family consultant on 24th November 2011. Dr L was appointed as an expert. His report should properly be described as an expert report, and not a family report.
Two final matters require comment.
First, in paragraph 7.14 of her affidavit, Ms Davison referred to correspondence with the ICL, in which the latter expressed concern that she had been excluded from formal discussions between the parties regarding parenting matters. The exclusion of the ICL from these discussions was justified by Ms Davison saying that the ICL was on notice of the application to have her appointment discharged, and it was on that basis that she was excluded from the discussions.
Respectfully, in my view, until the application to discharge the ICL was heard and determined, it was presumptive action to exclude the ICL from the parenting discussions. It might even be argued that to have excluded the ICL was in fact to pre-empt, if not to usurp, the determination of the disqualification application by the Court.
The second matter relates to a letter the ICL wrote to Mr Faulkner’s solicitors, which became Exhibit D, dated 19th July. It was the subject of submissions in the course of the hearing of the application.
That letter simply refers to the application to discharge the ICL and concludes: “Please be advised that we will be opposing that application and if we are successful, we will be seeking costs.”
It is not contested that the ICL had previously put Mr Faulkner’s lawyers on notice that she would be opposing the application. It may have been inferred at that time that, in the event that the application was successfully resisted, an order for costs would be sought against him. The letter of 19th July simply confirmed the situation to Mr Faulkner and his lawyers.
It was submitted by Counsel for Mr Faulkner that this was a threat against the Father, a form of improper intimidation. I reject this submission.
As previously noted, the application to discharge sought an indemnity costs order against the ICL. Respectfully, subject to (a) proper process, (b) relevant legislative provisions in relation to costs under the Act, (c) relevant case law, and (d) the evidence and submissions before the Court, parties to civil (as opposed to criminal) litigation invariably bear the risk – not the certainty – of costs orders. Further, a party who seeks an order for indemnity costs, in my view, cannot complain about being put on notice of the risk or the potential of an adverse costs order. In my view, the letter of 19th July is nothing more than putting
Mr Faulkner on notice of the possibility – not the certainty – of the Court making an adverse costs order against him.
Further, as Counsel for the ICL submitted, if the ICL had not put
Mr Faulkner on such notice regarding costs, in the event of the successful resistance by the ICL to the challenge to her appointment, a reasonable argument could be run that the ICL had given no notice that she would be seeking costs. I accept this submission by Counsel for the ICL.
The final matter to note from Ms Davison’s affidavit is the following. At paragraph 9 she stated (emphasis in original): “It is submitted that by influencing and curtailing what additional or other expert evidence was provided to Dr L prior to the completion of the family report, the ICL might, to the reasonable independent lay observer, perceive the ICL as being biased against the Husband, and might conclude that the ICL was incapable of conducting the proceedings in the future in an objective manner and one which is focused on promoting the best interests of the child.”
Two short observations: (a) this is another instance of referring to the expert report of Dr L as a ‘family report’. It is an expert report, not a family report. There is a singular difference between the report of
Dr L, and the earlier family report from Ms A; (b) it is also another instance where a selective view of the evidence is presented.
The submission that alleges that the ICL has ‘influenced and curtailed’ the provision of material to Dr L might have some substance but for the fact that it again fails to refer at all to the ICL’s reference, on three separate occasions in writing, of the need to comply with the rules of court to seek the Court’s imprimatur for the use of a report from an expert which has been commissioned by a party. Again, most unfortunately, it is a selective use of and reference to the available evidence.
The letters of the ICL make plain that there is a process or procedure to achieve the end so earnestly sought by Mr Faulkner. As was stated often by Counsel for the ICL, that process – of making an application to the Court – remains open to the Father. Thus far, the only application made is to discharge the ICL, rather than an application to have Dr K’s report put to Dr L.
Further, in none of the ICL’s letters to Mr Faulkner’s solicitors did she comment on the contents of Dr K’s report. On the documentary evidence before the Court, in my view, the ICL’s actions have related solely to matters of procedure. No judgment has been expressed in any of the letters in relation to any substantive parenting issue to be determined by the Court. Nor has the ICL made, nor is it alleged that she has done so, any comment on matters of credit or credibility of any of the parties, or any relevant witness.
On the evidence before the Court, the Father’s application is ill-founded. Indeed, the documentary evidence refutes the contentions made by Mr Faulkner.
Legal Principle
In order, I set out the Court rules in question, followed by a consideration of relevant case law.
Rules of Court
In my view, it is sufficient to note that (a) Rule 15.09 of the Federal Magistrates Court Rules 2001 provides for the Court appointment of an expert; (b) Rule 15.10 deals with the “report of court expert”; and (c) Rule 15.12 provides (emphasis added): “If a court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the court.” The discretion, and the process, is (or should be) patent.
For completeness, Rule 15.49 of the Family Law Rules is to similar effect as Rule 15.12 of this Court’s Rules.
In the course of submissions, Counsel for Mr Faulkner confirmed that Dr K’s report was a report from an expert, someone who has provided a ‘psychosexual report.’[10] He also submitted that in accordance with the ‘best evidence’ rule, it was proper and important that Dr L have a copy of Dr K’s report.
[10] See Transcript (24th July 2012) pp.3 – 5. At p.5, learned Counsel confirmed that Dr K is “an expert psychologist.”
For my part, I have little difficulty with the submission of Counsel in relation to the best evidence rule, save that all evidence must be put before the Court, and its court-appointed experts, in accordance with the rules of the Court. Court rules provide for the due and proper process by which the best evidence is put before the Court. They have not been followed on this occasion.
On the facts here, and by reference only to the rules of court at this stage, there is no basis to argue that (i) the ICL has usurped the function of the Court, or (ii) the ICL is biased against the Father because she has determined any relevant matter either of evidence or parenting. She has done no such thing. She has expressed a view on the process of putting evidence before the Court-appointed expert, and recommended that an application be made to have the Court determine whether Dr K’s report should go to Dr L. Nothing the ICL has done can sustain any claim of apprehended bias. This conclusion is further supported by the following consideration of authority.
Case Law: Discharge of ICL (& Other Things)
A helpful review of relevant authority was recently provided by Murphy J in Knibbs & Knibbs.[11] Beginning at [33], his Honour said:
[11] Knibbs & Knibbs [2009] FamCA 840.
[33] It was said by the Full Court as long ago as 1980 that:-
“It is the duty of counsel representing the child to place before the court the wishes of the child (see Boseley v Lyons (1978) 4 FamLN 17; [1978] FLC 90-423) but in my opinion, unlike counsel appearing for a party who is sui juris and who must put his client’s instructions and argue his client’s case, counsel appointed to represent a child under the provisions of s.65 is as much charged with the duty of making submissions and conducting his case as to reveal those matters which are in the best interests of the child as is the trial judge to seek them out among the evidence and weigh them up. To this extent therefore, I think that it was proper for counsel for the child, notwithstanding his expressed wish to the contrary, to submit that it is not in his best interests that his wishes be acceded to by the court”.
(In the Marriage of Wotherspoon & Cooper (1980) 7 Fam LR 71; [1981] FLC 91-029 at FLC 76, 282)
[34] Some ten years after the decision of the Full Court in Wotherspoon & Cooper, another Full Court in In the Marriage of Bennett (1990) 14 Fam LR 397; [1991] FLC 92-191 made a similar point, emphasising that an ICL (then a “separate representative”) is not bound to make submissions on the instructions of the child. The court said (at FLC 78, 259):-
“…it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the children (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must of necessity, form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duties to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative…”
[35] In In the Marriage of Harris [1977] FLC 90-276 at 76, 476, Fogarty J said this:-
“It appears to me that [the Independent Children's Lawyer] occupies the position of an advocate appearing for a particular party in the litigation although it is the role of advocacy having about it certain unusual features including: (i) that he is not appointed by the party whom he represents; (ii) that he may not be removed by that person; and (iii) that he does not necessarily advance what the client wants but what in his view is in the best interest of that “client” and to that extent exercises an independent judgment quite out of character with the position ordinarily occupied by an advocate”.
[36] In Pagliarella (1993) 16 Fam LR 688, Hannon J was asked to discharge the Independent Children's Lawyer because she “…reached a conclusion at a very early stage and without being in possession of all the evidence and that she lost her “objectivity” and therefore she could not represent N’s interests”.
[37] In rejecting that conclusion, His Honour held (at 695):-
“It is true that [the Independent Children's Lawyer] states in her affidavit that she concluded that the husband had continued to pressure [the child] and that her wishes were as a result of that pressure and the manipulation of the husband and it is that conclusion with which counsel for [the child] and for the husband join issue with her.
In my opinion [the Independent Children's Lawyer] was entitled to reach that conclusion. The substantive proceedings being for a discharge of an earlier order, it was appropriate for [the Independent Children's Lawyer] to have regard to the reasons of the court for the making of that order. In fact she would not have been able to properly carry out her function of investigating the file without reading those reasons. Having done so, she was able to identify the issue or issues which would be of significance in the present substantive proceedings. The next step was to consider whether the findings of Treyvaud J as to the part played by the husband in the formulation of N’s wishes were still applicable. In doing so she properly had regard to the material at her disposal which included the interviews she had with N and with the husband and the wife…”
[38] Each of the parties in these proceedings relied upon the decision of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. In that decision, His Honour referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.
[39] The reasons why that is so, as identified by His Honour include:-
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought to be given to removing a child representative”.
His Honour later said, at [40], that he respectfully disagreed only with the last proposition of Holden CJ in relation to a requirement that there be actual bias.
More recently still, in Langmeil v Grange (No.3) Dawe J reviewed some of the authorities cited by Murphy J, as well as some further, significant decisions, notably of the Full Court in W & M & W, and by Chisholm J in T v L.[12]
[12] Langmeil v Grange (No.3) [2011] FamCA 171; W & M & W [2006] FamCA 512 (Bryant CJ, Warnick & May JJ); T v L (2001) 27 Fam LR 40. See also Bondai & Bretton (No.2) [2010] FamCA 1237.
At [30], her Honour said:
The authorities upon which I rely include the judgment of Chisholm J, as he then was in T v L (2000) FLC 93-056. That decision has subsequently been referred to with approval by the other Judges of the Court. The Full Court in the matter of W and M and W [2006] FamCA 512, (a decision of the Chief Justice and Warnick and May JJ in 2006) relied upon the decision of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 and his Honour’s decision of T v L (supra). They said, quoting Chisholm J:
“An application to remove a child representative is not strictly covered by the principle that the child’s best interests must be treated as the paramount consideration. Those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant’s position or from that litigant’s point of view, contrary to the child’s best interests.”
The final decision to consider is the High Court judgment in Michael Wilson & Partners Limited v Nicholls to which I have earlier referred. It is important to consider it further for a number of reasons.
First, as the most recent High Court authority on the subject of apprehended bias applications, I considered it important to ensure that both Counsel had the opportunity to address it.
Secondly, in the course of submissions at the hearing of the application and my reference to the Michael Wilson judgment, I specifically and deliberately invited both Counsel, if they wished, to consider the decision and make further submissions in writing. I indicated that the [more extreme] factual circumstances in that case might be of some comparative relevance or assistance to the [relatively less extreme] facts of the current matter. Both Counsel confirmed that they did not wish to take any time to consider the High Court decision in Michael Wilson.[13]
[13] See the discussion at Transcript (27th July 2012) pp.10-11, 16, 20 & 21.
A particular reason for highlighting the decision in Michael Wilson was its significant factual matrix. In that case, the High Court found that there was no apprehended bias in circumstances where the trial judge had heard and made decisions in several interlocutory applications, all on an ex parte basis, and without any notice to the respondents.
Compared to the facts in that case, which I suggest are significantly more developed and the grounds much more certain if not extreme than those in the current proceeding, in this application, as I have previously observed, (a) there has been no determination by the ICL about any matter of substance that is in issue between the parties; (b) on a number of occasions in writing, the ICL has highlighted to the Applicant Father the procedural requirements in relation to the use of reports of experts commissioned by a party, according to the rules of Court, and invited the Father to make an application to have the Court determine (if appropriate) the proper use of Dr K’s report; and (c) the ICL has made no comment on the contents of the expert report of Dr K commissioned by Mr Faulkner, nor on any substantive matter raised by either of the parties, nor on any matter going to the credit or credibility of the parties.
On a comparative basis only, I simply observe that if the High Court found no ground to sustain an allegation of apprehended bias in Michael Wilson, the facts and circumstances in this case suggest that the application for discharge of the ICL should not have been filed.
Consideration & Resolution
In view of the decision I have reached, it is sufficient to consider primarily the submissions on behalf of the Applicant Father.
It is also important to observe that, while the discussion of principles from the case law in relation to apprehended bias invariably involves judicial officers, the principles are applied analogously in relation to applications of the kind currently before the Court that involve other protagonists in a proceeding, such as an ICL.[14]
[14] See, for example, the discussion in Bondai & Bretton (No.2) [2010] FamCA 1237.
Further, as the High Court has emphasised, the application of the ‘apprehended bias’ test is an objective one. The Court also cautioned about the need to be precise and not to conflate consideration of actual bias and apprehended bias. Thus, again in Michael Wilson (244 CLR at [67]) dealing with both of these aspects, the Court said (internal citations omitted; emphasis in original):
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
Further, the High Court commented in terms that, in my view, are relevant to the further conduct of the current proceeding. At [69] – [70], the Court said (internal citations omitted):[15]
[69] Here, however, it was said that "the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility "in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure" (emphasis added). But the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[15] See also Heydon J’s comments, at [117], to the effect that, even on the facts of that case, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
I highlight the High Court’s comments in the hope that they assist everyone to consider, among other things, the rules of Court in relation to proper process. In my view, the High Court’s observations on the facts, circumstances and procedures in Michael Wilson also put into significant contrast and proper perspective the facts, circumstances and procedures in this case. Simply put, in my view, the ICL’s actions (a) plainly expressed – in writing and on a number of occasions - a view about the process to be followed in relation to Dr K’s report and (b) directed attention [only] to matters of procedure to this end in accordance with the rules of this Court.
I should also observe the following comment by Kirby J in Antoun v The Queen, where his Honour repeated the earlier (and regularly repeated) caution by Mason J in Re JRL; Ex parte CJL.[16] At [34], Kirby J said (internal citations omitted):
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[16] Antoun v The Queen (2006) ALJR 497; (2006) ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352.
Applying this principle analogously to an application to discharge an ICL, in my view the Court should similarly be very cautious to accede too readily to such applications. I suggest this is especially so in matters where, as here, on proper analysis, the issues relied upon relate to process as opposed to substantive issues that are to be determined at trial.
Submissions
Stated summarily, and as noted earlier in these reasons, Counsel for Mr Faulkner focussed essentially on two matters.
First, he contended that the ICL had pre-empted (or usurped) the function and decision of the Court in relation to the use of Dr K’s report. He maintained that the ICL had a duty to put all relevant evidence before Dr L, which included the report of Dr K. While he acknowledged that Mr Faulkner could have made an application to the Court to secure the use of Dr K’s report, Counsel said that it was not essential that he do so.[17]
[17] See Transcript (24th July 2012) pp.4 & 6.
Learned Counsel also submitted that because Dr K’s report was not a ‘shadow report’ to that of Dr L, it was not necessary for it to go through the procedure of seeking the Court’s imprimatur in being provided to the Court-appointed expert. Further, Counsel maintained that Dr K’s focus was totally different to that of Dr L.
There is no doubt that Dr K is an expert. So much was properly acknowledged by Counsel for Mr Faulkner. He is not, however, a court-appointed expert. Accordingly, in accordance with this Court’s rules, reports from such experts require leave of the Court to be used in the proceeding, including being provided to the Court-appointed expert, Dr L.
Further, given the issues required to be addressed by Dr L, and given the centrality of the allegation against Mr Faulkner raised by his daughter, there is no doubt that Dr K’s report addresses an issue central to the proceeding, and doubtless relevant to Dr L’s assessment. If this was not the case, one might reasonably ask ‘why else commission a report from such an expert as Dr K?’
However, it was submitted by learned Counsel for Mr Faulkner – “It’s not an expert reporting on the same thing. It’s a totally different issue.”[18] Respectfully, such a submission begs the question, put slightly differently: “why get a report from an expert on a totally different issue?”
[18] Transcript (24th July 2012) p.6.
Moreover, if it is a “totally different issue”, even more reason for the Court to determine, according to the procedures prescribed by the Court’s rules, whether it is a report that should go to the court-appointed expert. If it is a similar issue, it too should follow the course of due process, according to the rules, to determine the relevance and or utility of such a report being presented to the court-appointed expert for consideration.
In short, the proper process, according to the Rules of this Court, in relation to Dr K’s report was not, and has not yet been, followed. It should have been. Had it been followed, as I indicated in the course of submissions, and earlier in these reasons, it would almost certainly have rendered otiose the current application.
In my view, the conduct of the ICL in relation to Dr K’s report has properly been (a) to highlight the usual requirements of the Court in relation to expert reports, and (b) unexceptional and unexceptionable.
The application to discharge the ICL on the ground of apprehended bias arising out of allegedly [pre-]determining whether Dr K’s report should be provided to Dr L has not been made out. Indeed, it was refuted on a clear and straight-forward reading of the correspondence between the solicitors that is now before the Court. The correspondence makes clear that the ICL had not arrogated such a determination to herself. Rather, the ICL had simply indicated a view in relation to the usual and correct procedure (and nothing more), and had properly (a) referred Mr Faulkner’s solicitors to the Court rules and (b) directed them to the [more usual] course of making an application to the Court for its determination of whether Dr K’s report should be referred to Dr L, and if so, on what terms and with what particular object, and whether a further written note (or supplementary report) from Dr L would be required.
Further, although Mr Faulkner apprehends it, there is nothing in the correspondence before the Court, or in the ICL’s conduct otherwise, that could reasonably sustain his asserted apprehension of the ICL being biased against him. There is no comment or accusation about or against him by the ICL. Further, there is nothing even to suggest that the ICL has commented on any matter that falls for the Court to determine at trial.[19]
[19] I take these distinctions from similar points made in the joint judgment in Michael Wilson at [72].
The second ground of Counsel’s submissions for Mr Faulkner’s application concerns the letter of the ICL to the Father’s solicitors, dated 19th July 2012 in relation to an application for costs in the event that the Father’s disqualification application was successfully resisted. For reasons already given, this part of the application also has no basis. Indeed, if it did, in almost every application before almost every court, and where such letters are commonplace in litigation of any and all kinds, courts would be flooded by applications on the ground of apprehended bias simply on the basis that a letter had been sent which put one or other party on notice of the risk of an adverse costs order, in the event that the Court determined an application in a particular way.
In my view, in the circumstances of this case, the July 19 letter from the ICL is nothing more than a formal, and standard, notice of intention in relation to the application in the event that the Father’s application did not succeed. The Father sought indemnity costs against the ICL; the ICL gave notice of only [ordinary] costs being sought against him if the disqualification application did not succeed.
As matters have transpired, the ICL’s notice is properly borne out. The Father’s application must be dismissed, and the ICL should have an order for costs in her favour, either as agreed or taxed.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 21 September 2012
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