JARDINE & SACKVILLE
[2019] FamCA 458
•8 July 2019
FAMILY COURT OF AUSTRALIA
| JARDINE & SACKVILLE | [2019] FamCA 458 |
| FAMILY LAW – PRACTICE AND PROCEDURE – INDEPENDENT CHILDREN’S LAWYER – Bias – Where the father makes an oral application for the discharge of the Independent Children’s Lawyer and the re-appointment of another – Where the father believes the current Independent Children’s Lawyer lacks impartiality – Where the Independent Children’s Lawyer’s bias is not established just because the father believes it to be so – Where discharging the current Independent Children’s Lawyer would cause further delay and additional cost – Application dismissed. |
| Family Law Act 1975 (Cth) Pt VII |
| Lloyd and Lloyd and Child Representative (2000) FLC 93-045 |
| APPLICANT: | Mr Jardine |
| RESPONDENT: | Ms Sackville |
| INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi Lawyer |
| FILE NUMBER: | NCC | 1949 | of | 2018 |
| DATE DELIVERED: | 8 July 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 8 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Ms J Olsen, as agent for McIntosh McPhillamy & Co Legal Service |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wooi |
Orders
BY CONSENT, IT IS ORDERED THAT
The following two applications are dismissed, with no order as to costs:
a.The Application in a Case filed on 5 December 2018 (variously referred to as being filed on 11 December 2018); and
b.The Response to an Application in a Case filed on 11 March 2019.
IT IS FURTHER ORDERED THAT
The applicant father’s oral application for the discharge of the current Independent Children’s Lawyer is dismissed.
Any and all other outstanding interim applications are dismissed.
The proceedings are adjourned to 9:30 am on Friday, 9 August 2019, for further procedural directions.
The respondent wife’s application for costs of and incidental to Order 2 hereof is adjourned to 9:30 am on Friday, 9 August 2019.
The applicant father shall file and serve any Financial Statement upon which he wishes to rely in relation to the costs dispute by Friday, 26 July 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jardine & Sackville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1949 of 2018
| Mr Jardine |
Applicant
And
| Ms Sackville |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
The current proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) are brought by the father against the mother in respect of their two daughters, now aged seven and five years respectively.
In the past, the father was involved in other litigation under Part VII of the Act in respect of his older son born to a prior relationship. The Independent Children’s Lawyer retained in these proceedings is the same Independent Children’s Lawyer who acted for the father’s son in the prior proceedings.
The father believes the Independent Children’s Lawyer is biased against him because, in effect, she supports the case being made against him by the mother. He believes the mother’s lawyer and the Independent Children’s Lawyer are colluding to thwart the parenting orders he proposes in respect of the two children. As a consequence, the father makes an oral application for the Independent Children’s Lawyer to be discharged and another Independent Children’s Lawyer appointed in her place.
The father’s oral application was listed for hearing before me today by Cleary J when the proceedings were last before her Honour on 14 June 2019.
The Independent Children’s Lawyer resists the father’s application and it is dismissed for the following reasons.
The father seems to place some store in the fact that these proceedings are now before me because Cleary J recused herself from hearing the case. He implied that, because Cleary J recused herself, it should necessarily follow that the Independent Children’s Lawyer should also be disqualified. That was the first example of the father’s misunderstanding.
Cleary J must have recused herself in these proceedings by application of the principles of ostensible bias, which principles are applied to ensure the objective impartiality of judicial officers, but such principles do not apply identically to disqualify lawyers, Independent Children’s Lawyers and expert witnesses.
The bases upon which an Independent Children’s Lawyer might be discharged are settled (Lloyd and Lloyd and Child Representative (2000) FLC 93-045 at 87,687) and have been repeatedly endorsed. The Court will consider the discharge of an Independent Children’s Lawyer if:
(1)there is evidence that the Independent Children’s Lawyer had, in any way, acted contrary to the children’s interests;
(2)there is evidence before the Court that the Independent Children’s Lawyer had acted incompetently in a professional sense;
(3)it is apparent that the Independent Children’s Lawyer has demonstrated a lack of professional objectivity; or
(4)to continue to act would involve the Independent Children’s Lawyer in a breach of a fiduciary duty or a conflict of interest.
There is no suggestion here of any premise to find grounds 1, 2 or 4 established. The father’s submission is based entirely on ground 3. The father did not lead any evidence to establish the ground, but instead relied upon his submissions about what he perceived the Independent Children’s Lawyer has or has not done.
I accept, for present purposes, that the father honestly believes the Independent Children’s Lawyer is biased against him, but therein lies the second example of the father’s misunderstanding. The subjective views of a litigant are not, of themselves, probative of the fact. In other words, the Independent Children’s Lawyer’s bias is not proven merely because the father believes in it. All of the submissions made by the father in support of his application were the product of only his belief or perception.
During his submissions, the father said “All I want is a fair trial”, which is what he will get. The presiding judge ensures a fair trial; not the witnesses within it. Even if the Independent Children’s Lawyer has formed a view which is adverse to the father’s interests, it will not deprive him of a fair trial. Her eventual submissions about the orders needed to quell the dispute between the parties may not even be persuasive, much less dispositive.
The Independent Children’s Lawyer is obliged to represent the children’s best interests and that will generally entail her formation of a particular view about the parenting orders which will most effectively serve the children’s best interests. The father cannot have the Independent Children’s Lawyer discharged merely because, in the exercise of her duty, she forms a view that the children’s best interests will be served by orders that more closely reflect those proposed by the mother than those proposed by him.
The father submitted that the transcript of an event in these proceedings before the Federal Circuit Court of Australia, about 12 months ago, would prove the Independent Children’s Lawyer’s eagerness for her re-appointment as the children’s representative in these proceedings, enabling her to exert her adverse views of the father in the current litigation. However, when offered the opportunity of an adjournment to acquire and tender the transcript to bolster his application, the father rejected the idea. Inferentially, he must accept the transcript of that court event would not bear out his complaint.
The father implied no harm would result from the grant of his application, even if the Independent Children’s Lawyer’s bias is not evident, but the implication is rejected. These proceedings have been on foot for 12 months and were transferred from the Federal Circuit Court to this Court in October 2018. Then, in June 2019, Cleary J found it necessary to recuse herself, which caused some further delay. Both parties are now desirous of taking the earliest available trial date before me. The Family Report will shortly be ready, as the interviews with the Family Consultant took place last week. The discharge of the Independent Children’s Lawyer would further delay the case being fixed for trial and would burden the community with extra cost. The costs of the current Independent Children’s Lawyer, paid by the Legal Aid Commission, will be thrown away if she is discharged and further costs will be incurred engaging a substitute Independent Children’s Lawyer. Those are additional reasons why the Independent Children’s Lawyer should not be discharged simply so the father’s belief in her bias can be appeased.
The father’s oral application for the discharge of the current Independent Children’s Lawyer is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 July 2019.
Associate:
Date: 15 July 2019
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