Johnson and Charles (No 2)

[2017] FamCA 973

FAMILY COURT OF AUSTRALIA

JOHNSON & CHARLES (NO. 2) [2017] FamCA 973

FAMILY LAW – CHILDREN – Independent Children's Lawyer – Application to discharge the Independent Children's Lawyer refused

Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

APPLICANT: Mr Johnson

RESPONDENT: Ms Charles

INDEPENDENT CHILDREN’S LAWYER: Ms M Clark

FILE NUMBER: MLC 10228 of 2012

DATE DELIVERED: 27 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Gill J

HEARING DATE: 27 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self representing

SOLICITOR FOR THE RESPONDENT: Self representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. The application of Mr Johnson to discharge the Independent Children's Lawyer is refused and the application is dismissed. 

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  Johnson & Charles 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 MELBOURNE

FILE NUMBER: MLC 10228 of 2012

Mr Johnson

Applicant

And

Ms Charles

Respondent

REASONS FOR JUDGMENT

1. An application to remove the Independent Children's Lawyer has been filed or attempted to be filed on the Friday before the listing of the matter for trial.  That particular filing occurs at the end of the week at which the trial was initially listed but unable to be reached by the Family Court.  The attempt to file the application was unsuccessful and permission was granted to file the affidavit that was relied upon in Court this morning. 

2. The application to have the Independent Children's Lawyer removed on the part of the father is constructed upon a number of factors asserted by the father.  The key amongst those is his assertion that the conduct of the Independent Children's Lawyer should lead to an inference being drawn of clear bias on the part of the Independent Children's Lawyer.  Connected to this bias, as set out in the affidavit relied upon by the father, are questions of the performance of the Independent Children's Lawyer in her duties in the preparation of the case.

3. The following matters were identified by him.  Firstly, he says that the Independent Children's Lawyer has failed to build rapport with B (the child) and has failed to provide an updated version of the child’s views in relation to who it is that she would like to live with and as to the impact upon the child if those views were not adhered to by this Court.  He says that there has been a demonstration of impartiality in that the Independent Children's Lawyer has preferred some material as evidenced in her preparation of a case outline to other material in forming her perspective on the case.

4. Further, and importantly he says that the Independent Children's Lawyer withheld the psychiatric reports that were prepared in relation to the further preparation of the Family Report in this matter, or at least withheld the report that was prepared in relation to the mother so the father was not able to access that until late.  The father also has made complaints about the production to the Family Reporter of transcript in relation to Children’s Court proceedings.  Those Children’s Court proceedings appear to have related to an episode where the Department removed the child the child from the mother’s care, placed the child into the father’s care but at a subsequent hearing made no orders that the child should not remain in the mother’s care.  It was unclear at first the extent of the father’s objection to the notion that the material should be provided.  An order was previously made by Justice Johns directing the Independent Children's Lawyer to request from the Legal Aid Commission funding to obtain transcript of the judgment of that decision.  That decision, or transcript of it, was ultimately produced and is available to the Court in these proceedings.  If the father saw this as evidence of bias the production of the judgment of the Children’s Court determination is a relevant matter for this Court to take into account and it is appropriate that the Independent Children's Lawyer should bring it before the Court.  However, I am not certain that the father included this in his claim in relation to bias.  I think that it was the father’s ultimate position that production of the transcript of the judgment was not a matter that he objected to, however I have covered it in case I am wrong in understanding what the father had to say about that.

5. The second aspect of the transcript that the father objected to was the production of the transcript of the three days of Children’s Court proceedings to be given to the Family Reporter.  As far as I am able to ascertain at this point, no arrangements have been made for the Family Reporter to receive those three days of transcript.  However, even if it was the case that it was the intention to bring those to the attention of the Family Reporter, doing so is a conduit by which the Family Reporter might be provided with more relevant information in relation to the interactions between the parties and the child.  The Family Reporter’s consideration of such material would not constitute as the father has characterised it, the Family Reporter sitting on appeal from the Children’s Court. 

6. This Court is entitled to take into account the transcript from proceedings in other courts in children’s proceedings and accordingly, there is no basis on which it could be thought that the production of the transcript to the Family Reporter would have constituted an exemplifier of bias on the part of the Independent Children's Lawyer.

7. In the case of Knibbs & Knibbs[1] Murphy J dealt with the aspects of the role of the Independent Children's Lawyer and how they might interact with an application to discharge an Independent Children's Lawyer in particular questions of discharge for bias.  He quoted from a previous decision of Holden CJ in Lloyd & Lloyd & the Child Representative[2] noting that

   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.

   [1] [2009] FamCA 840

   [2] (2000) FLC 93-045

8. Further, at [49] Murphy J noted

   The obligation upon an ICL to act objectively and impartially should not be seen as meaning that he or she should act as a benign or ambivalent mouthpiece for competing evidence.  Frequently, doing so can involve an abdication of their proper professional responsibilities.

9. It may be taken from these observations that it is a difficult task to establish a reasonable apprehension of bias in respect of an Independent Children's Lawyer drawn from the position taken by the Independent Children's Lawyer.  However, the father’s position does not simply rely upon the position taken by the Independent Children's Lawyer in this case, but also relies upon other procedural matters as seeking to establish that apprehension of bias.  One of those is that he did not receive the Family Report until 9 November 2017, despite that Family Report having been prepared and released in June 2017.  The father’s material establishes that he was unaware that the Family Report had been released although was aware that there was the need for further material to be provided to the Family Reporter.  On identifying to the Independent Children's Lawyer in November 2017 that he had not received the Family Report the person then appearing on behalf of the Independent Children's Lawyer took steps to arrange the immediate provision of that report to the father. 

10. There is no material before me to suggest that the Family Report, or the release of that to the father was the responsibility of the Independent Children's Lawyer nor that the Independent Children's Lawyer took any step to delay the provision of that report to the father. 

11. Secondly, the father identified a delay in the obtaining of the transcript of the judgment of the Children’s Court proceedings.  It is unclear how this delay could exemplify bias on the part of the Independent Children's Lawyer.  As I understand the outcome of those proceedings they involved the ending of a circumstance where the child could not be with the mother by virtue of the Children’s Court not making orders adverse to the mother.  If anything the provision of the judgment would have been a matter which would have been helpful to the mother in the preparation of her case and it is unclear how the delay exemplifies a bias on the part of the Independent Children's Lawyer. 

12. In relation to the question of the obtaining of the judgment and the obtaining of transcript of the balance of the proceedings in the Children’s Court I have already addressed these matters earlier in my comments.

13. The next matter raised by the father relate to delays in respect of his receipt of the report prepared by Dr N, Psychiatrist, in relation to the mother.  The genesis of this report is that the Family Reporter made recommendations that there be psychiatric assessment of each of the parties.  This is a process that the parties cooperated in, each taking part in interviews that occurred on or around 3 August 2017.  It appears from the reports that have subsequently been provided by Dr N that he had completed the reports by some time later in August 2017 although the Independent Children's Lawyer suggests it was six weeks later, it appears that the date in relation to the reports is 11 August 2017. 

14. Annexure 9 of the affidavit relied upon by the father indicates that a request was made for payment to each of the parties on 25 September 2017.  He says that he did not receive the invoice until 10 October 2017.  He paid it promptly after receiving the invoice and the report was released on 13 October 2017 in relation to the father.  The report was not released in relation to the mother, he says, until 13 November 2017.  I am unable to ascertain on the material before me what happened precisely in relation to the provision of funding from the Legal Aid Commission for the preparation of the mother’s part of the report nor when that funding became available.  The delay in relation to the provision of that material to the father does not exemplify a bias on the part of the Independent Children's Lawyer.  I am unable to ascertain responsibility on the part of the Independent Children's Lawyer for the delay.  Even if there was a delay in respect of that matter, again it does not speak to the question of a reasonable apprehension of bias but may indicate some degree of tardiness in the provision of the reports.  Given the evidence in its current state I am unable to even come to that conclusion. 

15. The further matters raised by the father were the assertions that the Independent Children's Lawyer has not built rapport with the child.  Each of the parties has filed affidavit material that show a torturous progression of these proceedings.  Final orders have already been entered into, there has been litigation across the Children’s Court and across the Family Court.  It can by no means be assumed that it is possible to build a rapport between the Independent Children's Lawyer and the child.  I accept that it is a difficult balance for the Independent Children's Lawyer to walk in respect of interaction with children in circumstances where there has been such long standing litigation.  The failure to build rapport does not, if in fact there is a failure to build rapport, exemplify a bias on the part of the Independent Children's Lawyer nor a dereliction of duties such as would justify the removal of the Independent Children's Lawyer.  The Independent Children's Lawyer was further criticised as not having obtained the most recent views in respect of the child.  Her last meeting with the child was in April 2017.  Since that day a Family Report has been prepared with interviews taking place in May 2017 and a report being produced in June 2017.  Reliance on this report, where it contains material that may be seen to be consistent with views expressed by the child, discharges the Independent Children's Lawyer’s duties in respect of that particular matter. 

16. The parties are of course able to provide, given their more recent dealings with the child, further evidence in relation to that matter which will be a matter to be assessed by the Court in the hearing of the matter.

17. To the extent to which the Independent Children's Lawyer should provide evidence of the potential consequences if views are not followed, there remains a live question in this case as to what the true views of the child might be.  In any event, if the views are taken to be as expressed to the Family Reporter, the Independent Children's Lawyer rightly points to the fact that an inference may be drawn from the child’s presentation as to her potential reaction if those views are not acceded to by virtue of her comments to the Family Report writer.  Again these matters do not go to bias on the part of the Independent Children's Lawyer.

18. While the father stated that the matters that he has pointed to have undermined the process and it may be seen that delays in the production of the psychiatric material and the production of the transcript of the judgment of the Children’s Court therein mean that there is no supplementary report prepared by the Family Reporter such that her assessment of such material will be required to be dealt with in her oral evidence, none of these matters is demonstrative of either a bias on the part of the Independent Children's Lawyer nor a dereliction of her duties such as to justify that she should be removed from the case.

19. The final matters that the father pointed to is that the Independent Children's Lawyer, he says, has taken a position in relation to the younger siblings of the child namely H and J that does not cater for a closeness of relationship between H and J and suggests an approach to maintenance of that relationship that is unworkable.  The Independent Children's Lawyer has submitted, and this much may be disclosed from her case outline, that at the moment she has not formed a fixed position as to what arrangements could or should be made in relation to H and J.  That remains to be a matter to be explored in the trial of the matter. 

20. The father also pointed to fabrication on the part of the Independent Children's Lawyer in relation to the child’s age.  Proceedings took place in April 2017 before Justice Johns.  The father annexed the written outline of case provided by the Independent Children's Lawyer.  Quite wrongly in those proceedings the Independent Children's Lawyer pointed to the child as approaching the age of 10.  She was then approaching the age of 11.  She is now a little bit older than 11½ years of age.  That is, the Independent Children's Lawyer was out by a factor of a year in the outline of case that she provided to Justice Johns.  Again, an error such as this does not point to an apprehension of bias on the part of the Independent Children's Lawyer. 

21. The reliance of the Independent Children's Lawyer on some matters in preference to other matters in respect of the child is a matter for the Independent Children's Lawyer in the discharge of her task.  As has been noted by the authority that I have cited, in particular citing from Murphy J it is not the role of an Independent Children's Lawyer to sit mutely and not take a position in respect of evidence.  It is the role of the Independent Children's Lawyer to weigh the evidence but to ensure that adequate evidence is presented before the Court.  That weighing of the evidence may lead the Independent Children's Lawyer to form a view one way or another.  The formation of such a view does not of itself, unless the circumstances otherwise demonstrate it to be so, indicate a bias on the part of the Independent Children's Lawyer as opposed to a discharge of the duties properly owed to the Court.

22. Accordingly, I find that there has been no demonstration of an adequate basis to justify the discharge of the Independent Children's Lawyer and I decline to do so.  The application is refused.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 November 2017.

Associate: 

Date:  30 November 2017