JEFFCOTE & BARGETT

[2020] FCCA 485

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFCOTE & BARGETT [2020] FCCA 485

Catchwords:
FAMILY LAW – Discharge of Independent Children’s Lawyer – failure to properly represent children – failure to issue relevant subpoena – failure to inspect subpoena – ICL discharged.

Legislation:

Family Law Act 1975 (Cth), s.68LA

Applicant: MS JEFFCOTE

Respondent: MR BARGETT

File Number: TVC 1070 of 2017

Judgment of: Judge Willis AM

Hearing dates: 4 & 5 February 2020

Date of Last Submission: 5 February 2020

Delivered at: Cairns

Delivered on: 5 February 2020

REPRESENTATION

Solicitors for the Applicant: Rennick Lawyers

Solicitors for the Respondent:	Self-represented
Solicitors for the Independent Children's Lawyer:	Ms Meehan

ORDERS

1. The Independent Children’s Lawyer is discharged.

2. A copy of the reasons for Judgment in relation to the discharge of the Independent Children’s Lawyer are to be provided to Legal Aid Queensland.

3. The Solicitor for the Mother is to inspect the Subpoena material and file and serve an Affidavit within 14 days of the date of this Order annexing a summary of the Subpoena material.

4. The matter is to be listed for mention on 11 March 2020 at 9:30 am in the Federal Circuit Court of Australia at Cairns.

NOTATION:

FAMILY VIOLENCE CROSS-EXAMINATION

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Jeffcote & Bargett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

TVC 1070 of 2017

MS JEFFCOTE

Applicant

And

MR BARGETT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have had the matter has been transferred to me from the Townsville Registry.  

2. The file started off its life in 2017. Orders were made by Judge Coker on October 2017 and then in January 2018 a Family Report was ordered by His Honour.  It was released to the parties by His Honour on the 10^th of May 2018.

3. Thereafter, as a result of the contents of the Family Report and allegations made, Judge Middleton ordered that there be an Independent Children’s Lawyer on the 29^th of May 2018 to represent the two female children in this matter.  A Notice of Address for Service was filed on the 9^th of July 2018 by the Independent Children’s Lawyer, Ms Majella Meehan. Since that time, in short, after my inquiries I can see that all that has happened of any assistance to these parties is that there has been a Legal Aid conference organised by the ICL.

4. The Independent Children’s Lawyer didn’t need to organise the Family report because it was already ordered by Judge Coker. There was a recommendation in the Family Report that further investigations be made and subpoenas issue to address potential risk including subpoena to the Queensland Police Service, treating doctors and ATODS. That was on May 2018. 

5. As I said, the ICL was appointed in July 2018. For reasons which the ICL cannot explain, no subpoenas were issued at all following her reading of the Family Report and Orders made, nor for the rest of the year in 2018. It was not until 8 May 2019 did the ICL get around to issuing any subpoena. Even then only two were issued being Queensland Police, and the Department of Child Safety.  No subpoenas issued by the ICL to treating doctors nor to ATODS as recommended.

6. I asked Ms Meehan yesterday when this matter came before me for the first time. As I said this matter was transferred from Townsville to Cairns by His Honour Judge Andrew on 25 November 2019. Yesterday I was hoping to receive assistance to understand the history of the matter.  I asked the ICL why she had taken so long to even issue subpoenas.  I was advised that, “I have nothing to say.” Today I’ve asked the ICL again, and she has advised “pressure at work”. 

7. I was advised by the other practitioner, that on no less than three occasions during 2018 and 2019, the matter was adjourned by Judges waiting for the ICL to issue the subpoena. On each mention on 2 18 October 2018 and 28 February 2019 the ICL had failed to issue the subpoena. The ICL confirmed that this was correct.

8. To then hear yesterday and today from the ICL (who joined in this week to write to the Court to ask for an administrative adjournment) that the matter be adjourned again and that all that has been happening is that the matter has just been meandering along having “settlement discussions”, and that almost a year passed before the ICL actually issued any at all, is most alarming.   

9. On inquiring as to whether Ms Meehan has ever met the parties, I was informed that she doesn’t recall meeting the parties personally.  I am also informed by the ICL that she has not met the children. The ICL said there had been of a lot of correspondence though between the parties. What the ICL refers to is a flurry of emails that have been continuing to fly around between the legal advisers.  It is worthy of noting that on inquiry to the father, he informs me that to this point has had to discharge his own privately funded lawyers a he could not afford to retain them. The father says he has paid some $35,000 in legal fees thus far.

10. On looking at the file, there have been no interim hearings.  The Court issued the Family Report.

11. To date, from the Court’s perspective after waiting for five adjournments moving through most of 2018 and up to May 2019, finally some subpoenas were issued, not even all of them.

12. Yesterday I asked Ms Meehan how she could be engaging settlement discussions without having the knowledge or information required within the subpoena. The most I can understand from the circular response of the ICL, is that the parties seem to have some agreement and she was supporting their agreements. It is not the role of the ICL to simply passively support what parties wish to do. The role of the ICL is to place before the Court relevant forensic evidence that the Court needs in order to make a determination as to what arrangements are in the best interest of children.  The serious allegations in this matter warranted the Court appointing an ICL.

13. As I said, the ICL had joined in with the request to ask for yet a further adjournment of yesterdays’ mention on the basis that the parties are getting closer to settling it, in her view.  The Court refused the request for an adjournment. I’ve again asked how she could possibly settle it without all of the information contained in the relevant subpoena and the ICL has repeated that “the parties are close to settling it.” 

14. The forensic activities carried out by this ICL, in my view, have been sadly lacking. I asked Ms Meehan yesterday what did the subpoena material tell me? Ms Meehan wasn’t able to recall.  When I asked what  her notes said about the contents of the subpoena, the ICL said  that she didn’t have her file with her and didn’t’ know. When I asked the ICL did she have a summary? There was no summary. 

15. On 3 December 2019, this matter was set down for a mention the next mention on 4 February 2020, months ago. I consider that the ICL was nowhere near adequately prepared to appear at the mention yesterday or today, to assist the Court. The ICL was granted leave to appear by  phone.  To do any appearance, without the file or even notes, is unacceptable.

16. On two or three occasions I asked the ICL, “have you even inspected the subpoena material?” I was assured by the ICL “yes, I would have. I would have.”  I can see that a notice to inspect was filed on 19 June 2019.  The ICL though had no recollection whatsoever of what was in the subpoena material. When expressing my dismay as to how the parties, and particularly the ICL, could have ever entertained settlement discussions in circumstances where the ICL cannot even remember what was in the subpoenaed material. 

17. I then made an Order that the ICL overnight, file an affidavit annexing her notes regarding her inspection of the subpoena material. I said I would now have to mention the matter again tomorrow.

18. I also asked Ms Meehan to prepare an affidavit telling me how much she has charged Legal Aid Queensland for, in my view, seeking adjournments and issuing two subpoenas.

19. The ICL filed a document today, namely an affidavit this morning but advises the Court it is not witnessed, because she didn’t have anyone to witness it. I have therefore had the ICL sworn in and swear to the truth of her affidavit.  

20. I have now read the affidavit.  The ICL has now only just realised that she has never inspected the subpoena material.  

21. The affidavit states:

    “When this matter was mentioned in Court on 4^th February, 2020 I was mistaken when I advised that I had inspected the subpoena material, which advice was given without the benefit of having my file with me. On reviewing my file, I have discovered that I have not inspected the subpoena material.”

22. The ICL filed a notice of address for service on 9 July 2018.  It was not until the following year in May 2019 that any subpoena was issued, notwithstanding that the Family Report (recommending various subpoena issue and discussing the risks to the children) was released and ready for the ICL to read the day she filed her notice of address for service. The ICL still does not  know to this moment on 5 February 2020, what is contained in the subpoenaed material and yet is still saying the parties are close to settling it and on the strength  of those discussions, the ICL joined in asking for the mater to be adjourned.

    It’s not the role of the ICL to simply sit back and through attrition and adjournments hope that the parties settle the matter. For all the ICL knows, there could be allegations or a relevant criminal history or offences relating to the treatment of children in either of the police or child protection records or the medical records (which have not yet been subpoenaed). But all that is happening is that the ICL is sitting back hoping that the parties will settle.  Adjournments have happened because of the failures of the ICL. The chronology of events can be seen below:

16 May 2018	Family Report released
29 May 2018	Order made for the appointment of an ICL
9 July 2018	ICL files a Notice of Address for  Service
18 October 2018	ICL first appearance, matter adjourned.
28 February 2019	No appearance by ICL before Registrar Boyd. Matter adjourned.
8 May 2019	ICL issues subpoenas to Queensland Police and Department of Child Safety.
9 May 2019	ICL appeared matter adjourned.
19 June 2019	Notice of Request to inspect filed (however material not inspected as deposed in Affidavit of Ms Meehan filed by leave on 5 February 2020)
13 August 2019	ICL appeared matter adjourned.
25 November 2019	Ms Hodgens Solicitor for the Father appeared, ICL did not appear, instead Ms. Hodgens appeared as agent for the ICL, interim consent orders.  Matter transferred to the Cairns Registry.
4 February 2020	ICL appeared by phone, first appearance in the Cairns Registry.
5 February 2020	ICL appeared by phone and discharged.

1. Ms Meehan says that all she can say about her failures is that has been affected by the “pressure of work.” I must say I have trouble understanding that because nothing has been done on this. The ICL in answer to my question as to how many other files she has on the go, said she didn’t know, and when asked for an estimate, the ICL says about 50 other ICL files.  

2. I can only conclude that if this is the level of time and attention that can be put into a single file in which children’s interests are being represented, it is wholly inadequate. I am fairly horrified to see that so far the public through Legal Aid Queensland have paid $2,849.00 to have these children independently represented. I have no idea how that has been expended.    

3. I have come to the conclusion that myself and the other Judges who have been involved with this matter, have received little to no assistance at all through this appointment of the ICL.

4. I’ve asked the ICL why she shouldn’t be discharged. The ICL’s response is, “because I am familiar with the matter.” Frankly, someone could get familiar with this matter by spending 40 minutes reading a file. There has been no engagement with the children, no memory of meeting the parties, very little else has happened. The file has been transferred to Cairns and as I said, even after the conference (where one would assume the ICL would have met the parties, but it seems likely that  the ICL appeared by phone) there was still no effort to look at the subpoenaed material. 

5. I find it very difficult to understand that an ICL could be so busy as to overlook what must be a core duty, a core obligation and that is to first issue the relevant subpoena in a timely fashion, then inspect the material.  There are still in 2020, other subpoena that should have been issued that haven’t been. I am not prepared to have these parties keep waiting for that to happen. I have lost confidence in the capacity of the ICL to attend to such matters.  It is most concerning to hear that the father says he has paid around $35,000.00 to keep coming along to Court privately represented in this matter which includes coming to Court for all these adjournments where literally, nothing has been happening. There has not even been an  interim hearing.

6. Having considered this matter seriously, and the best way forward, it is my sad duty and with great disappointment that I intend to discharge the ICL.  I am not satisfied that her appointment is of any assistance to the Court. 

7. If the Court requires the assistance of an ICL, another ICL will be appointed. I’m going to have these reasons printed up and provided to Legal Aid Queensland. With thanks for the two subpoena issued, I intend to discharge the ICL. Having made the order to discharge the ICL, the ICL is now excused. I remain deeply disturbed at the prospect of the ICL sending in Consent Orders with the Court being unaware that the ICL had not issued all of the appropriate subpoena and that none of the Police and other critical subpoena had even been inspected. This highlights the failure of the ICL to properly represent these children.

8. By way of a post script, at the time of issuing this settled version of my oral reasons, the solicitor for the mother has filed an affidavit attaching notes of her inspection of the subpoena material which has just occurred.  The police records include issues of concern regarding a party’s conduct (but no charges) towards a child and their treatment of children.  Further investigations will now be made by the Court.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Willis AM

Date: 5 March 2020