Kennedy & Peyton - [2022] FedCFamC2F 366

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kennedy & Peyton [2022] FedCFamC2F 366

File number(s): ADC 4269 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 28 March 2022

Catchwords: FAMILY LAW – interim hearing – application for the discharge of the Independent Children’s Lawyer – where it is alleged that the Independent Children’s Lawyer is biased, or perceived to be bias – consideration of the statutory duty of an Independent Children’s Lawyer – consideration of the grounds to warrant the removal of an Independent Children’s Lawyer – considerations of whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer is biased or impartial – where the parties positions are polarised and proceedings are bitterly contested – previous departmental involvement and removal of a child not subject to the proceedings – where father was previously charged with criminal neglect – where the issues relating to the other child who is not subject to these proceedings are germane – best interests of the child – assessment of risk – considerations of public policy – matters to be considered.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 64B, 68L, 68LA 69ZW, 91B

Cases cited:
Kennedy & Peyton [2020] FCCA 3268

Dickens & Dickens [2016] FamCA 115

Horner & Horner [2018] FamCA 487

Kingley & Arndale (No 2) [2010] FamCA 968

Knibbs & Knibbs [2009] FamCA 840

Leroux & Leroux & Ors (Independent Children’s Lawyer) [2015] FamCA 1128

Lloyd & Lloyd & the Child Representative (2000) FLC 93-045.

Re K (1994) 17 Fam LR 537.

T & L (2000) 27 Fam LR 40.

Division: Division 2 Family Law

Number of paragraphs: 159

Date of hearing: 18 March 2022

Place: Adelaide

Counsel for the Applicant: Ms Horvat

Solicitor for the Applicant: Degaris Lawyers

Counsel for the First Respondent: Mr Bowler

Solicitor for the First Respondent: Jordan & Fowler Lawyers

Counsel for the Second Respondent: Ms Tinning

Solicitor for the Respondents: Adelta Legal

Counsel for the Independent Children's Lawyer: Ms Lindsay

Solicitor for the Independent Children's Lawyer: Ms Z
ORDERS

ADC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KENNEDY

Applicant

AND:
MR PEYTON

First Respondent

MS C PEYTON AND MR B PEYTON

Second Respondents

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

28 MARCH 2022

THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 16 February 2022 be dismissed.
2.The costs of the Independent Children’s Lawyer are reserved.
3.The Application in a Case filed 18 June 2021 be listed for interim argument on 12 April 2022 at 10:00 am regarding the arrangements for the children, X and Y, to spend time with the father, and what conditions should attach to such time.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kennedy & Peyton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

These reasons for judgment concern an application to remove a court-appointed Independent Children’s Lawyer,[1] by two of the parties concerned, in highly complex and bitterly contested parenting proceedings, concerning two children aged five and six.
[1] Hereinafter referred to as ‘the ICL’ or ‘the Independent Children’s Lawyer’.
The basis for the application is that it is asserted that a lay observer, who had been appraised of all the salient details of the case would, on objective grounds, conclude that the relevant ICL would be incapable of bringing an impartial mind to the discharge of the statutory function conferred upon her, by the court.
The relevant ICL is Ms Z. The children concerned in the case are X born in 2015 and Y born in 2017. Besides Ms Z, who is to be regarded as a party of equal importance, the other parties to the proceedings are X and Y’s parents – their mother, Ms Kennedy and their father, Mr Peyton. More recently, on 18 May 2021, the children’s paternal grandparents, Ms C Peyton and Mr B Peyton, have also intervened in the case.
It is the father and paternal grandparents who seek the discharge of the ICL. Essentially, it is their position that Ms Z has an unprofessional relationship with officers of the Department for Child Protection,[2] particularly the supervisor of the Region P office of DCP, Ms Q. They are also concerned that the ICL’s sister, a psychiatrist who prepared a report in respect of the father, prior to Ms Z’s appointment.
[2] Hereinafter referred to as ‘the DCP’ or ‘the Department’.
The background to the appointment of Ms Z is set out in an earlier judgment of the court delivered on 1 December 2020.[3] In summary, the children’s parents finally separated in separated in September 2019, when the mother became aware that the father had entered into a relationship with another person, Ms F.
[3] See Kennedy & Peyton [2020] FCCA 3268.
Ms F gave birth to a third child, who is not strictly the subject of these proceedings and so, in a formal sense, is beyond the court’s jurisdiction, on 3 February 2020. This child is D. As subsequent DNA test revealed that Mr Peyton is D’s father.
In these emotionally challenging circumstances, the mother and father agreed on an essentially shared care regime for X and Y, following a process of mediation between them. This regime broke down in late-September 2020, leading to the mother commencing these proceedings.
The catalyst for the mother’s instigation of the proceedings was the discovery by the child protection authorities that D had sustained a calamitous series of injuries, whilst apparently in the care of Mr Peyton and Ms F. This lead to D’s removal from his parents, by Department officers, including Ms Q, on 4 September 2020.
D has not been returned to his parent’s care in the period since. As I understand matters, he was subject to proceedings in the Youth Court, which resulted in his permanent placement away from his parents with foster carers. In other proceedings, the paternal grandparents were considered not to be appropriate substitute kin providers of care.
In addition, both Mr Peyton and Ms F were charged with offences relating to the criminal neglect of D and related charges. I have recently been informed that the relevant prosecuting authorities have discontinued the criminal proceedings. In addition, proceedings instigated by Mr Peyton and his parents in respect of challenges to various decisions made by DCP officers have also been discontinued.
In early-September 2020, D was forensically examined by a number of paediatricians at the City N Hospital and the O Hospital. He was found to have extensive bruising on his face and torso. On X-Ray, he was found to have suffered 31 rib fractures and 6 suspected fractures, which were in the process of healing. A liver function test indicated he had also sustained liver and pancreatic trauma.
Mr Peyton and Ms F indicated to medical staff and departmental officers their view that these injuries had been accidentally inflicted on D, when X and Y had been playing in his vicinity and a heavy item (a speaker) had fallen upon him. It is implicit in what the relevant officers of DCP subsequently did that they did not accept that D had been accidentally injured in this way.
In addition, as a consequence of other investigations undertaken by DCP, namely a parental capacity assessment, the Department formed the view that both Mr Peyton and Ms F lacked parental insight and each of them had some psychological and behavioural issues, which had implications for their capacity to be safe parents.
It is the position of the father that he has a close and appropriate loving relationship with X and Y, to whom he provided a significant level of care prior to the incidents of September 2020, involving D. His view is supported by his parents, who also wish to continue to be involved with the care of X and Y, as interested grandparents. They have offered themselves as appropriate lay supervisors of any time, which occurs between the children and their father.
Given the abandonment of the criminal proceedings and the conclusion of the care and protection proceedings, it is apparent that there will be no extensive examination, in a judicial context, in respect of what happened to D and how his injuries occurred. It remains the father’s position, as I understand it, that the departmental inquiry in question was flawed in nature, essentially because Ms Q, in particular, formed an adverse view of him, which influenced the way in which evidence was subsequently gathered and assessed.
In its extensive parental assessment report, dated 23 March 2021, Ms R, a Senior Social Worker employed by the Child Protection Service, an agency of the DCP, raised issues regarding the potential implications for X and Y of Mr Peyton’s response to the injuries apparently sustained by D. She reported as follows:
With regards to X and Y, the CPS was concerned about the psychological impact on both of them given Mr Peyton and Ms F had repeatedly suggested they were responsible for D’s injuries. At no point throughout the assessment did Mr Peyton reflect or emphasise with the impact such statements may have had on X and Y, particularly given the small community they lived in. Furthermore, additional, information received during the course of the assessment highlighted concerns about Mr Peyton’s capacity to attend to X and Y in an attuned and sensitive manner during times of stress, and also noted concerned regarding supervision and boundaries. The combination of these concerns left the CPS hesitant about X and Y’s physical and emotional safety in Mr Peyton’s care.[4]
[4] See Child Protection Service Assessment Report dated 23 March 2021 at page 40.
It was in this difficult context that the order was made, on 1 December 2020, for the appointment of the ICL. At this early stage, it was also Ms Kennedy’s position to the court that DCP had told her to take a highly protective attitude towards any immediate arrangements for X and Y to interact with their father and were opposed to any such arrangements taking place without their input. In addition, given the assertion that X and Y had, in some way, been involved in the infliction of the injuries to D, the Department, in its evidence gathering capacity, was likely to want to forensically interview at least X.
Accordingly, at the stage of the first involvement of the court, DCP had expressed their interest in what arrangements were to be made in respect of X and Y, given their direct involvement with D. On any view, given these factors, it was obviously the case that the Department, firstly, was likely to have a view about how Y and X’s best interests were likely to be served in future and secondly, would have relevant information in this regard.
In November 2020, the court was advised, in the form of a memorandum provided by Ms M, which set out the DCP’s attitude towards the ongoing management of the case. Ms M is a DCP official who is embedded at the Federal Circuit and Family Court of Australia in Adelaide. Her role is to act as a liaison between the Department and the court, particularly in respect of providing information, which may be relevant to the safety of any individual child who is the subject of any proceedings in one of the Family Law Courts.
The relevant departmental memo indicated that the Department was gravely concerned about the safety of X and Y, given the severity of D’s injuries. As such, X and Y were subject to a safety plan, which was directed towards keeping the children safe and protected whilst the critical investigations and assessment planned are completed.[5]
[5] See Kennedy & Peyton [2020] FCCA 3268 at [58]-[59] (Brown J).
Accordingly, at the stage of the first interim hearing, the mother’s position was that DCP had directed that the father was not to have any time with X and Y, other than for brief periods of time, subject to the Department’s supervision, particularly whilst Department investigations were ongoing.
On the other hand, it was the father’s position that he had done nothing wrong and was the victim of an officious over-reaction by the Department. In these circumstances, he wished the court to authorise a return to the previous shared care arrangement, which saw him spending time with the children from Thursday morning until the following Thursday morning.
I summarised the legal and evidentiary task, confronting the court at this early stage as being one involved with the provisional assessment of risk. I said as follows:
The essential issue for the court, in the current matter, can be expressed in the following terms: is it acceptable to assess risk for one group of children by reference to what may have happened to another child, who does not share the characteristics of the children in the first group?
X and Y are five and three years of age respectively. Physically they are more robust than D, who is a baby. X, in particular, has some level of developed language and so can, to some degree, report what has happened to her. D cannot.
There is no suggestion that any specific harm has befallen X and Y. The mother does not allege that these children have made any disclosures of abuse to her. There is no indication that either of them has suffered any physical injury.
In these circumstances, the court must determine what is a proportionate response, to the degree of risk arising potentially to X and Y, when it does not know specifically what happened to D and what, if any, was the involvement of X and Y in it.[6]
[6] Ibid at [41]-[44].
Ultimately, at this early interim stage, I elected to make provisional orders which provided for the children to continue to live with their mother and spend time with their father, subject to the supervision and direction of the Department. In addition, the Department was invited to intervene in the case, pursuant to the provisions of section 91B of the Family Law Act 1975 (Cth).[7] The relevant section reads as follows:
(1)In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.
(2)Where the court has, under subsection (1), requested an officer to intervene in proceedings:
(a) the officer may intervene in those proceedings; and
(b)where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
[7] Hereinafter referred to as “the Act”.
As is apparent from the section, the court has no authority to compel a state based child welfare authority to take part in proceedings. It is the experience of judicial officers of this court, who officiate in family law proceedings in the State of South Australia that DCP rarely, if ever, takes up an invitation to intervene in proceedings in this court.
It is in this context that various protocols, which do not have the effect of law, have arisen between the court and child welfare authorities in each of the States and Territories of Australia. In basic terms, such child welfare authorities have agreed to share relevant information, in appropriate cases, with the court.
Associated with these protocols is the power conferred upon the court pursuant to section 69ZW, which mandates the court to direct a prescribed child protection authority to provide information and/or documents about the following matters:
·Any notification of suspected abuse of a child;
·Any assessment made by the relevant agency of such notification;
·Any reports commissioned by the relevant agency in the course of investigation such notifications.
In the current matter, such a section 69ZW order was made on 1 December 2020, in respect of X, Y and D, together with an order that the children, who are directly the subject of these proceedings, be independently represented in the case, pursuant to the provisions of section 68L of the Act.
THE ROLE OF THE INDEPENDENT CHILDREN’S LAWYER
The role of the ICL is one created by statute. Pursuant to section 68L(1), the power to appoint an ICL is available only in cases where the welfare of the relevant child is the paramount consideration. Clearly, in the current matter, X and Y’s best interests are both relevant and the court’s most important consideration.
The section itself does not attempt to constrain the court’s discretion as to the appointment of an ICL or provide a list of criteria applicable. The only matter to be taken into account is the paramountcy principle contained in section 60CA, which renders a child’s best interest as the court’s paramount consideration in the making of any parenting order in respect of the child.
The expression parenting order is defined in section 64B and in simple terms deals with how parental responsibility is to be allocated in respect of the child and with whom that child is to live and spend time with others.
In the case of Re K,[8] the Full Court of the Family Court, whilst recognising that it was inappropriate for the court to attempt to make rigid direction as to when a child should be represented independently of their parents, provided what it described as a number of guidelines applicable for such appointments. One of these guidelines included cases involving allegations of child abuse, whether physical, sexual or psychological.
[8] See Re K (1994) 17 Fam LR 537.
In such cases, the Full Court opined as follows as to what it envisaged would be the role of the ICL, in such cases. The court said as follows:
In such cases we consider that the separate representative has an independent investigative role and that the child in any event should have an independent person looking after his or her interest. The separate representative can in such cases also fulfil the function of arranging for the collation of expert evidence and presenting that evidence to the court.[9]
[9] Ibid 555 (Nicholson CJ, Fogarty and Baker JJ).
Re K was determined prior to more recent amendments and initiatives directed towards the sharing of information from Family Law Courts and relevant child protection authorities. However, in my view, one of the central roles of an ICL, in cases involving allegations of child abuse, is in the collation of evidence.
Necessarily, where a child protection authority is involved, this is likely to involve liaising with appropriate officers, within the Department and, in appropriate cases, arranging for the dissemination of expert reports, including those to be provided pursuant to the provisions of section 69ZW.
The parameters of the role of the ICL are set out in section 68LA of the Act. In general terms, an ICL must examine all evidence available and act in a manner, which they believe will serve the best interests of the children, whom they represent.

The specific duties of an ICL are delineated in section 68LA(5) and require the ICL:
•To act impartially in dealings with the parties to the proceedings;
•Ensure that any views expressed by the relevant child are fully put before the court;
•If a report or other document that relate to the child is to be used in the case, analyse and examine such a report or other relevant document and ensure that salient features of such report and/or document are properly brought to the court’s attention;
•Endeavour to minimise the trauma to the child associated with the proceedings concerned; and
•Facilitate an agreed resolution of the matters, if possible, so long as it is congruent with the best interests of the child concerned. In jargon of family lawyers, this often referred to as the honest broker role.
I am satisfied that the issues raised in the case, which relate to the risk that X and Y may come to harm as a consequence of being subject to some form of abuse or neglect, given the various controversies in the case relating to the father’s alcohol use and his mental health history. When viewed in the context of what occurred to D, whilst in his father’s care, justify the appointment of an ICL, in the service of X and Y’s best interests.
THE CURRENT POSITIONS OF THE PARTIES
The mother has amended her application on several occasions. She currently seeks orders in respect of the settlement of property and to be able to relocate the residence of the children away from Town E to City G or South East Queensland where she has lived in the past. Underpinning her case is her view that X and Y should live with her, and the father and paternal grandparents should have limited and rigorously supervised time with them.
The father opposes any relocation of the children away from Town E. Ultimately, after some period of introduction, he seeks to return to the shared care regime. The paternal grandparents seek gradually increasing periods of time with the children starting with a few hours each month. They would like to enjoy an informal regime to spend time with X and Y, when they are living with their father for extended periods. Necessarily, they support the father.
THE CONDUCT OF THE PROCEEDINGS TO DATE
Ms Z filed a Notice of Address for Service on 10 December 2020. In a formal sense, she was selected to satisfy the order of the court that X and Y be independently represented in the case by the Director of the Legal Services Commission of South Australia, which is the agency responsible for funding such appointments.
Ms Z is an experienced family law solicitor, who practices in the family law and child protection jurisdictions in the City N region of South Australia. Until recently, she was the only solicitor available in the Region P to accept such appointments. More recently, another solicitor has completed the prerequisites to be appointed an ICL by the Legal Services Commission. She is the mother’s current solicitor. Given the residence of the parties and the children concerned in Town E, I can understand why the Director would wish to appoint a local solicitor to satisfy the court’s order of 1 December 2020.
The case returned to court, in City N, on 16 February 2021. On this occasion, it was noted that the Department continued to have an open file in respect of D and further that X and Y were engaged in a process of counselling with S Families. In these circumstances, it was agreed that the father would continue to have supervised time with X and Y but the supervision would change to the City N Children’s Contact Centre, an independent organisation funded primarily by the Commonwealth.
Children’s contact centres provide an invaluable service for separated families, particularly those in which there are significant issues relating to protective concerns in respect of children. Essentially, they provide professional supervision, which both protects children from coming to any harm but also can formally document the interactions between a parent and child. For obvious reasons, such a record is helpful not only to the parents concerned but also any judicial decision maker called upon to assess risk and the nature of any relevant parent/child relationship.
On 2 May 2021, Ms Z filed an affidavit to which was attached a report from the City N Children’s Contact Centre regarding the three supervised visits, which had occurred between the children and their father in March and April 2021. The report indicated that the father’s time with the children had passed without incident, although it is noteworthy that Y failed to attend two of the visits in question.
The case again returned to court on 18 May 2021. On this occasion, a representative of the Department indicated that it declined the invitation to intervene in the proceedings. At this stage, the court was provided with a report under the hand of Ms Q, in which was detailed the Department’s involvement with the family and its concerns regarding both the parents and the paternal grandparents.
So far as Mr and Mrs Peyton senior were concerned, the Department indicated their concern that neither paternal grandparent had demonstrated any acceptance or acknowledgment of the seriousness of the issues raised in respect of D’s safety. In these circumstances, the Department expressed its reservations that they would be capable and protective supervisors, so far as X and Y were concerned.
So far as the father was concerned, it was the Department’s view that any time between X and Y needed to be closely supervised. In this context, the Department supported the continued involvement of the City N Children’s Contact Centre in any future arrangements for Mr Peyton to spend time with X and Y.
The Department assessed Ms Kennedy as being a child-focussed and highly protective, capable Parent for X and Y. In this context, Ms Q wrote as follows:
It is the strengths associated with Ms Kennedy’s capacity to provide care that have mitigated the need for the Department to remove X and Y and initiate proceedings in the Youth Court of South Australia; which would have been required to ensure their safety had Ms Kennedy not been present, capable and appropriate.[10]
[10] See report of the Department for Child Protection dated 18 May 2021.
It was at this stage that the Department alluded to the fact that it had conducted a parenting capacity assessment report in respect of Mr Peyton and Ms F. In this context, it was asserted by Ms Q that the Department had serious concerns about Mr Peyton’s capacity to be a safe and appropriate caregiver. She wrote as follows in respect of the report indicating that it recommends that reunification to his care not be considered. I assume this is a reference to D rather than X and Y.
The paternal grandparents were formally added as parties to the proceedings on 22 June 2021. At this stage, controversies arose between the parties regarding whether the parental assessment report relating to Mr Peyton and Ms F should be disseminated to the other parties in the case. Ultimately, it was directed that the ICL circulate a redacted copy of the relevant report to each of the parties, including Ms F. Ultimately, as I recall, it was agreed that the report in question could be circulated in full.
On 2 August 2021, Ms Z filed a further affidavit to which was attached an additional report from the City N Children’s Contact Centre regarding a further eight supervised visits between Mr Peyton and the children, which occurred between late-April and mid-July of 2021. The paternal grandmother attended one of these visits. Again, nothing untoward was noted in respect of any interaction between the father and the children.
On 12 August 2021, the paternal grandparents made an application to the court to spend gradually increasing time with X and Y, starting with 2 hours per month, for a period of 3 months. At the same time, the father also brought an interim application seeking to have time with the children subject to the supervision of one of a number of lay persons, who were either relatives or family friends.
Mrs Peyton senior is a retired educator. She and Mr Peyton senior have a number of other grandchildren besides X, Y and D. It is their shared position that they love all of their grandchildren and previously have interacted in an appropriate and extensive manner with X and Y. Although, Mrs Peyton has deposed that Ms Kennedy, from time to time, limited her time with the children.
It is clear that Mrs Peyton senior does not have an easy relationship with Ms Q, which given the extremely upsetting circumstances of this case, is readily explicable. In her affidavit of 12 August 2021, Mrs Peyton senior deposes as follows:
After D was taken into care by DCP, I contacted DCP on a number of occasions in an attempt to see D. On the first occasion that I spoke to Ms Q of DCP she told me that unless I agreed that Mr Peyton had caused D’s injuries, that I would not be allowed to see D. Ms Q told us that D would be adopted out until he was 18 and Mr B Peyton and I would never see him again. In all my dealings with DCP I have reiterated that I did not believe that Mr Peyton could have caused D any injuries deliberately. I have never minimised D’s injuries. I believe DCP’s behaviour towards Mr B Peyton and I have been cruel and unreasonable.[11]
[11] See Affidavit of Ms C Peyton filed 12 August 2021 at [21].
In summary, the paternal grandparents believe that the relevant officers of the DCP, including Ms Q, have not been prepared to consider that there may be some alternative explanation for D’s significant injuries but rather have assumed that they can only have been caused by Mr Peyton.
In these circumstances, the paternal grandparents have been presented with what they regard as an unacceptable and cruel ultimatum – either they recant their support for their son, and from their perspective renounce him, or the Department will do whatever it can to sever their relationship with their grandchildren.
In these circumstances, the paternal grandparents made a formal complaint about the actions of the Department, including that they have allegedly been bullied by Ms Q. Their complaint was rejected by the manager of the complaints and feedback management unit of DCP on 5 May 2021.
A few days later, on 26 May 2021, the manager of the Care Approval and Review Unit of DCP rejected Mr and Mrs Peyton seniors’ application to be kinship carers of D. The reasons provided for this decision were as follows:
The child was allegedly physically injured in the care of his parents, which resulted in his removal and subsequent guardianship order being granted in the Youth Court of South Australia. The Department discussed the child protection concerns with you, which you dismissed and you advocated that the child be returned to the care of his parents. This raises concerns about your willingness and capacity to fully understand the impact of abuse and trauma can have on a developing child, and in turn your ability to protect the child from harm and ensure that the child’s emotional, psychological and physical needs are met.
I have also been informed that you do not demonstrate any insight into the severity of the injuries that were inflicted upon the child, and that you attribute these injuries to the child’s older sibling, who was aged 3 ½ years at the time of the incidents; despite forensic medical reports that confirm that the explanations provided by the parents for the injuries are not plausible. This raises significant concerns about your ability to nurture and support the child to understand his experience of trauma as he grows.
I have also been informed that you do not demonstrate any empathy or concern for the injuries and trauma that the child has suffered. You have repeatedly asserted that the child was not abused, that his injuries were accidental, and that he should not have been removed from the care of his parents. This raises significant concerns about your protective capacity and to work cooperatively with the Department to ensure that the needs of the child are placed before the needs of his parents.
On 4 June 2021, Ms Q, in her role as the supervisor for the City N office of DCP, determined that Mr and Mrs Peyton senior were not to have any contact with D. In particular, it was determined that Mrs Peyton had made inappropriate comments towards D regarding DCP.
In this context, the Department were concerned that Mrs Peyton, in particular, lacked insight into the child protection concerns raised by the Department. As previously indicated, Mr and Mrs Peyton senior sought to review the various decisions of the DCP pertaining to their involvement with D in the South Australia Civil and Administrative Tribunal but more recently have elected not to proceed with their application.
On 17 August 2021, the father formally tendered the Child Protection Services’ assessment report dated 23 March 2021 together with a report, which the Department had commissioned in respect of him in November 2020, in conjunction with its investigations into the circumstances surrounding the injury of D. The relevant psychiatric report was redacted in respect of its authorship. It is now common ground between all concerned that the relevant psychiatrist was Dr T, who is the ICL’s sister.
Accordingly, Dr T’s report pre-dates the appointment of the ICL. Dr T was briefed by the Department to provide a report in respect of the father’s mental health, in the context of the Department being suspicious that a child, in his care, had sustained significant injuries, which had not been adequately explained. In this context, Dr T was provided with some of the medical reports detailing D’s injuries.
However, Dr T herself did not assess this material. Her report is approximately 8 pages in length and includes a detailed development history, which she obtained from Mr Peyton. In this history, the father indicated that he had had significant alcohol and gambling issues in the past. In addition, he described being proscribed anti-depressant medication and having been diagnosed with adult Attention-Deficit Hyperactive Disorder (“ADHD”).
Ultimately, whilst accepting the diagnoses of adult ADHD, Dr T’s view was that Mr Peyton was not suffering long-term depression but at the time of her assessment was presenting with acute distress in reaction to the stressors being apparent in his life, particularly in relation to the issues surrounding D In these circumstances, Dr T recommended a monitoring of Mr Peyton’s drug and alcohol use and that he remain in therapeutic contact with his then treating psychologist.
On 19 May 2021, it had been ordered that a Family Report be prepared, in this case, which was directed to be released in mid-October 2021. In order to facilitate the relevant report writer having all relevant information, it was also ordered that the report of Dr T, along with the parenting capacity assessment, be provided to the report writer.
In this context, it was directed that the existing arrangements for the father to spend time with X and Y should continue and the various applications of the father and the paternal grandparents, in respect of extending their time with the children, should be adjourned until the relevant report was available.
THE FAMILY REPORT
The Family Report was released to the parties on 28 September 2021. It was prepared by Ms U, an experienced Family Consultant since 2013. She interviewed the parties and observed X and Y with each of them, in City N, in early September 2021.
In her report, under the heading of Mental Health, Ms U alluded to the fact that Mr Peyton had been diagnosed with acute distress and ADHD by reference to Dr T’s report dated 26 November 2020. She also took her own history from the father regarding his previous level of psychological treatment and his past issues of alcohol use and gambling. She did so in the context of assessing risk, particularly in regard to the father engaging with X and Y.
The paternal grandparents also confirmed to Ms U their perception that the DCP was unjustifiably biased against them. In this context, Ms U characterised the paternal grandparents as having an ambivalent stance about the provenance of D’s injuries and Mr Peyton’s involvement with them. Accordingly, it would seem to be the case that Ms U was also aware of one of the significant issues in the case from the perspective of DCP, namely they apparent reluctance of the grandparents (and indeed the father) to accept some level of fault attached to Mr Peyton for D’s apparent injuries.
Ms U described the children as being relaxed and bright in their engagement with the paternal grandparents. Ms Kennedy was described as being able to manage the children competently, along with their older half-siblings B and C. All four children being described as relaxed and spontaneously verbal, in their mother’s care.
In the evaluation section of her report, Ms U described her observation of X and Y interacting with their father and her interview with the children, in the following terms:
There are positive elements to Mr Peyton’s relationship with Y and X. They largely speak positively about their father and spending time with him. There were positive aspects of observed interaction between them, particularly between the father and Y. This does tend to suggest [the] relationship with their father is a valuable one.[12]
[12] See Family Report of Ms U dated 27 September 2021 at [156].
Ms U summarised her interview with Mr Peyton, in the context of D’s injuries, as being focussed on the father’s disagreement with the conclusions reached by DCP and the various forensic medical professionals engaged by them. To sum, Ms U was of the view that Mr Peyton was deflective of any significant sense that his actions were responsible for D’s injuries, which she characterised as demonstrative of a lack of empathy for D displayed by Mr Peyton.
In this context, Ms U expressed the dilemma, which the case presented. On the one hand, it was clear that Mr Peyton had not caused any physical harm to either X or Y and whilst he was not the children’s primary carer, he had been significantly involved in parenting them in the past. On the other hand, in the light of his persistent denial of having been involved in the compromised care of D, and his lack of explanation for the child’s injuries, it was difficult for her to recommend a future care environment in which abuse would not occur for X and Y. In this context, Ms U opined as follows:
It is therefore posed that Mr Peyton cannot have unsupervised care with X and Y. The risk of physical harm based on D’s experiences and the information from Ms Kennedy relating to her concerns about the father’s difficulty in managing the children’s non-compliance, particularly relating to care tasks, prompted the Consultant to be considerably cautious.[13]
[13] Ibid at [155].
Ms U accepted Ms Kennedy’s account that she felt emotionally isolated in the small community of Town E, particularly given her perception that her challenging personal situation vis-a-vis the father, was well known in it and thus a subject of interest to it, which Ms Kennedy found uncomfortable and intrusive. In these circumstances, Ms U favoured her relocation proposal. Obviously, this is major source of controversy for both the father and paternal grandparents.
Significantly, whilst considering that some form of supervision was required, given the magnitude of D’s injuries and Mr Peyton’s personal vulnerabilities, Ms U was also of the view that professional long term supervision of the father’s time with X and Y was untenable, not only for logistic reasons but also because it would not provide an adequate opportunity for the children’s relationship with their father to be maintained.
Clearly, this issue is at the nub of the case, as is how the absence of D from X and Y’s lives is to be broached and explained to them. In this context, X indicated to Ms U that she considered D to be part of her family but she did not get to see him much because someone hurt him badly, they haven’t said who did it.[14]
[14] Ibid at [117].

In these circumstances, Ms U favoured the paternal grandparents being engaged to provide lay supervision, at least until the children reached primary school age. As previously indicated, her view of the paternal grandparents was that they were positive and child-focussed in their engagement with X and Y and each:
…acknowledged the importance of not denigrating their mother, and not making the children feel responsible for D’s injuries. The need for supervision is largely related to reducing the risk of physical harm to X and Y. An extra pair of hands to assist during potential stressful moments of care for Mr Peyton and an external set of eyes will ensure safety as well as keeping Mr Peyton accountable.[15]
[15] Ibid at [167].
As will become apparent in due course, the DCP and Ms Q do not necessarily accept the appropriateness of the paternal grandparents to provide the supervision recommended by Ms U. This had led to one of the central conundrums, which the case (and indeed the constitutionally derived bifurcated system of child protection with Australia) throws up. Unless DCP accepts the invitation proffered to it to be involved in the case, it is not a party to the proceedings and has no formal status to seek orders from this court. Nonetheless, given its involvement with D and the centrality of his situation to the current case, the Department’s view and what it does has the potential to be highly influential in the case.
WHAT OCCURRED FOLLOWING THE RELEASE OF THE FAMILY REPORT
On 24 September 2021, Ms Q wrote to Ms Kennedy indicating that the Department considered X and Y interacting with Mr Peyton to constitute a significant risk to their ongoing emotional and physical integrity. It recommended only brief and professionally supervised time for the children on the basis of its parental capacity assessment of Mr Peyton.
Without directly alluding to the paternal grandparents, Ms Q wrote as follows:
X and Y’s contact should be supervised by an impartial person, who has an understanding of the child protection concerns and risk of harm, and has the skills and ability to intervene if required to protect the children from experiencing harm during time spent with Mr Peyton.[16]
By necessary implication, neither of the paternal grandparents satisfied the attributes specified by Ms Q.
[16] See Affidavit of Ms V filed 28 September 2021 at -1.
The case returned to court on 13 October 2021, on which occasion, under the auspices of the ICL, the parties were able to agree on an ongoing regime, for the management of the case. The consent order provided as follows:
·X and Y live with their mother;
·Commencing 24 October 2021, the father spend 5 hours on alternate Sundays with the children, with this time to increase to 6 hours from 9 January 2022;
·The father’s time be supervised by the paternal grandparents;
·The father and the children engage in a video call each Wednesday at 5.00pm;
·The parties engage with the children’s counsellors to develop an agreed narrative regarding the issues surrounding D;
·On or before 15 December 2021, the parties provide the ICL with a written statement regarding the context of such agreed narrative;
·Other injunctive and logistical orders were made regarding the exchange of information;
·Handover arrangements;
·So far as the father was concerned, requiring him to undertake a random drug screen analysis;
·Thereafter the parties were directed to attend a Family Dispute Resolution Conference at the Legal Services Commission prior to mid-December 2021.
The father filed the current application in a proceedings, which seeks the discharge of the ICL, and an order that would require the mother to deliver up X and Y to him, in order to comply with the consent order of 13 October 2021. The father also seeks that the mother pay his costs of the application.
The application is supported by an affidavit of Mr Peyton, the contents of which can be summarised as follows:
·The professional community in the Region P of South Australia, involved in family law and child protection matters was small and interconnected and by necessary implication, incestuous;
·He personally felt besieged by it;
·Ms Q had wrongly concluded [he] deliberately injured D. As a consequence, she wished for him to be criminally persecuted;
·Ms Q had been rude and unprofessional to him and his parents;
·Ms Z and Ms Q knew each other well and had attended a professional development course, overseen by the City N Children’s Centre, which had been reported in the annual report of that organisation for the financial year 2016/2017;
·Ms Z had written disingenuously to his solicitor enquiring about the progress of proceedings in the Youth Court when in reality she knew what the outcome of those proceedings was from having discussed them with Ms Q;
·Ms Z had written in a rude and unprofessional manner to his parents, requesting clarification of why they considered the injuries sustained by D were of an accidental nature;
·In this context, the paternal grandparents assert that it is apparent that Ms Z has formed a view regarding the culpability of their son in this regard;
·The relationship between the ICL and Dr T;
·The relationship between the mother’s solicitor and the ICL, given that Ms V was the other legal practitioner in the Region P available to accept appointments as an ICL and the assertion that she too would know Ms Q well;
·The likelihood that the ICL, Ms Q and Ms V would have informal conversations with one another about him and the case;
·The ICL was lacking in impartiality and supported the mother’s case.
The gravamen of the last matter seems to relate to a controversy surrounding the cancellation of a contact visit at the City N Children’s Contact Centre due to the mother’s assertion that the children had cold/flu like symptoms and would not be attending a scheduled visit. In these circumstances, Ms Z was critical that Mr Peyton had contacted the children’s kindergarten and a medical clinic to ascertain the veracity of this assertion, it being his view, as reported by his solicitor, that both children, during a video call with him on Father’s Day had appeared bright and in perfectly good health, without runny noses, any coughs or croaky throats. It would appear to be the case that Mr Peyton is of the view that Ms Z has demonstrated a lack of impartiality by becoming drawn into this particular controversy.
The controversy regarding Ms Z’s involvement with the paternal grandparents appears to turn on her recommendation to them that they should consider consulting with an independent therapist, namely Ms W, to assist them to enhance their knowledge of the child protection issues surrounding the removal of D from the father’s care and the various issues raised by the forensic medial reports on which the Department relied in pursuing its application in the Youth Court. In this context, it is asserted that this suggestion is indicative of the fact that Ms Z lacks impartiality and has accepted Ms Q’s view of the case without demur.
In all these circumstances, Mr Peyton deposes as follows:
I do not want an Independent Children’s Lawyer in this matter to be from the same small City N Legal Community as the mother’s solicitor and Ms Q. I believe that the independence of the Independent Children’s Lawyer would be better ensured by an Independent Children’s Lawyer who is not part of that community.
Since the ICL’s appointment, I believe that she has not acted in an impartial manner, has adopted a very adversarial stance towards me (and my parents), and has been unfairly supportive of and uncritical of the mother, appears to often advocate on behalf of the mother, has failed to disclose relevant facts/relationships (her sister being the psychiatrist, informed discussions with the DCP) and has been disingenuous in her correspondence. I do not believe that conduct has served the best interests of the children, but rather emboldened the mother to be unreasonable.
I do not make this application lightly, but the situation is causing me significant concern, a great sense of injustice and distress.[17]
[17] See Affidavit of Mr Peyton filed 16 February 2022 at [37]-[39].
The disqualification application was listed on 15 February 2022 in City N. Shortly prior to this date, Ms M wrote to the court including an unsigned report from DCP. Ms M summarised this report in her letter, which indicated that the Department was currently investigating child protection concerns regarding the care afforded to X and Y during the time they spent with their father and whether this arrangement was impacting upon the children’s emotional safety. In this context, it is significant to note that the Department indicated that it had no concerns about Ms Kennedy’s care of the children.
The relevant paragraphs of Ms M’s letter read as follows:
The Department's assessment remains unchanged, in that X and Y would be at serious risk of enduring physical and emotional harm in the care of their father, Mr Peyton and that to ensure their safety they should be afforded limited and supervised contact with Mr Peyton.
The Department's assessment of the paternal grandparents remains unchanged. The Department has concerns about the ability of the paternal grandparents, Mrs C Peyton and Mr B Peyton to supervise Mr Peyton's time spent with the children. There remain concerns about the paternal grandparents' insight into and acceptance of the issues regarding Mr Peyton's capacity to parent. Furthermore, the paternal grandparents have demonstrated an inability to be impartial in order to prioritise the children's needs above those of Mr Peyton's, they continue to denigrate Ms Kennedy and there are concerns about their ability to empathise with and be attuned to the children's emotional needs.
The Department has assessed that there is insufficient evidence to substantiate the allegations of Neglect (Failure to Protect) against the paternal grandparents, Mrs C Peyton and Mr B Peyton. It is accepted that Y was placed in a situation where she thought and continues to believe that she was left unattended with Mr Peyton. Mrs Peyton asserts that she was in proximity to Y and that whilst Y could not see her, she had oversight of Y's safety. Mrs C Peyton and Mr B Peyton conveyed a dedicated compliance to maintaining the supervision as required. However, Mrs C Peyton, conveyed a strong disbelief that the supervision was warranted or necessary, which remains an enduring concern regarding her insight into the child safety issues and the risk for the children.
On 16 February 2022, Mr Peyton filed a Contravention Application alleging that the mother had failed to make X and Y available to spend time with him on the two preceding Saturdays. In this context, it was the mother’s position that she had advised the father that she and the children had each returned a positive test to Covid-19 via a Rapid Antigen Test.
In his supporting Affidavit, the father indicated that he had consented (albeit without any admissions being made by him) to the order placing D under the guardianship of the Chief Executive of the Department until he attains the age of 18 years. He also confirmed that he and Ms F had been charged with criminal neglect and had appeared in the Town AA Magistrates Court in respect of these charges in 2021. He too had apparently tested positive to Covid-19.
It appears to be the position that the Family Dispute Resolution Conference, on which the parties had previously agreed, took place in mid-January of 2022. At this conference, the parties reached an agreement that the father’s time with the children would be extended to 8 hours on two out of every three Saturdays/Sundays with the time to be supervised by the paternal grandparents. This agreement has not been formalised by the court.
In his affidavit of 16 February 2022, the father provided me with a copy of the relevant heads of agreement. This, as indicated above, envisaged an increase of time to 8 hours, with ongoing supervision to be provided by the paternal grandparents or the father’s step-brother, Mr BB and his wife. Mr Peyton and Ms Kennedy also agreed to attend co-parenting counselling, at the father’s expense. The Family Dispute Resolution Conference was adjourned to 6 April 2022. In light of this agreement, the father was suspicious that the children were not made available to spend time with him. He is dubious about assertions regarding their illness with Covid-19.
On 3 February 2022, Ms Z wrote to the father and mother’s respective solicitors in the following terms:
I appreciate that the father feels frustrated that his recent time spending has been problematic due to COVID19 issues. It is an unfortunate reality that Town E has been hard hit by the Omicron variant in recent times. I am sure that both parents would have preferred neither of them contracted COVID19 and especially that X and Y also did not. It is however a requirement that the current rules as set out by SA Health are followed. I would also prefer if the father did not use language such as “purportedly” when communicating on this issue given that he has been provided with independent information from SA Health confirming the children’s diagnoses. It is not helpful in this matter in attempting to move forward the parent’s co-parenting relationship when this attitude o[r] mistrust is openly displayed. I would hope that engagement with Ms CC will assist the father in understanding the power of words and how they can adversely impact relationships.
It would also be helpful if the father acknowledged the difficult dynamic that the mother and children have been place in due to DCP’s intervention with D. I understand that the father is denying injuring D in any way but that does not overcome the factual reality that DCP have removed D from the father’s care (and D’s mother’s care) due to injuries sustained whilst D was in his parent’s care, that long term guardianship orders have been made in respect of D and that DCP as well as the Contact Determination Review Panel have assessed all the relevant information and decided that there is no current benefit to D in having ongoing contact with the father. The essence of this means that the father has been determined by the statutory body empowered to protect children as a person who is not safe. Whilst the father may dispute this, this again is the reality that the mother as well as me as ICL have to work with. If the mother simply ignores the findings of DCP, then she risks being considers as unprotective of X and Y and so having them removed from her care. I am very confident that this is not an outcome that the father would desire.
It would also be helpful in this matter if both parents acknowledged that the children may behave differently in the care of each of their parents. This is not an unusual scenario. Attempting to attribute blame does little to address issues. Denial of the children’s emotions also does not assist. He children are processing monumental changes in their lives and it is not unreasonable that they would have questions and worries about the events surrounding D being no longer an active part of their lives. It is also not unreasonable to expect that they will raise these concerns more readily with the mother who has been their stable primary caregiver. The way forward is to acknowledge these issues an attempt to collaboratively come up with workable solutions. I would hope that again the work with Ms CC will address this issue and assist both parents in understanding that open and honest communication is the only way that the lives of the children will improve by the tension in the co-parenting relationship decreases.[18]
[18] See Affidavit of Mr Peyton filed 18 February 2022 at Annexure -8.
On 17 February 2022, the father filed a 96 page affidavit in response to the report from the Department. He challenged the thrust of the report and deposed that he did not know how D had been injured and certainly the child had not been injured by him. In addition, he refuted any suggestion that his spending time with X and Y could result in them sustaining emotional harm. He denied any behaviour, on his part, which either directly or indirectly could be interpreted as him assigning some blame to either X or Y in respect of the current and complex situation.
At this stage, he confirmed that he and Ms F had been charged but it was his position that he had not been provided with any evidence, by the prosecution, as to the evidence upon which it would rely to establish the charges against him, beyond reasonable doubt. As indicated earlier, I have more recently been advised that the prosecution has discontinued the charges.
Following the receipt of the DCP report of 15 February 2022, the case was adjourned to 17 February 2022. Given the apparent tensions between what the parties had ostensibly agreed, in the light of Ms U’s report, I wished to ascertain if the parties were sanguine with Ms U’s report being released to DCP.
In addition, on 17 February 2022, I again issued an invitation to DCP to intervene in the proceedings pursuant to section 91B of the Act. At this stage, I indicated my view that there was a tension between the Department wishing to influence the outcome of the proceedings but, at the same time, its absence as a party to them. It was clear to me that the father and paternal grandparents were of the view that the Department did not approve of the agreement which had been reached at the January Family Dispute Resolution Conference.
THE ICL’S POSITION IN REGARD TO THE DISCHARGE APPLICATION
It is Ms Z’s evidence that she has considered all the material filed in the proceedings to date, which includes the Child Protection report and related forensic medical examinations in respect of D, as well as the parental capacity assessment made in respect of Mr Peyton.
In my view, it is appropriate that she should examine all these documents and further that she is entitled to form a view, in her role as ICL for X and Y, as to the importance of these documents so far as the service of X and Y’s best interests are served.
In this context, Ms Z has deposed as follows:
…I accept the findings of the independent medical expert who attended upon the father’s child D as to the nature and type of injuries sustained by D. I have advised all parties that I accept the current expert medical opinion that D’s injuries were inflicted injuries. I advised all parties in writing that this will remain my position until I am provided with any contrary expert medical opinion. I have invited the parties to provide me any contrary expert medical opinion.[19]
[19] See Affidavit of Ms Z filed 2 March 2022 at [22].
Although the father has vigorously asserted that he disagrees with the medical material provided and denies that he is responsible for inflicting any intentional injuries on D, there is no controversy that he has not provided any medical evidence or other opinion to contradict this material.
It is Ms Z’s position that she has an obligation to consider this material and form a view in respect of its relevance to the best interests of X and Y. Given the terms of section 68LA, in my view, this position is incontrovertible.
In this context, it is Ms Z’s perception that she has been open with the parties regarding the relevance of this material to the best interests of the children concerned. In my view, this stance is also congruent with the opinion of the independent court appointed expert, Ms U. I agree with Ms Z that the material is relevant and she is under an obligation to consider it. Ms Z’s correspondence referenced above clearly indicates that there is no scientific or medical material currently available to her to rebut the Department’s view that D’s injuries were anything other than serious and were not accidentally inflicted.

Ms Z acknowledged having a professional relationship with Ms Q. The basis of this relationship was the fact that Ms Z regularly appeared as a Children’s Representative, in the care and protection jurisdiction of the Youth Court, in which Ms Q also has a significant role and which required Ms Z to engage with her to discharge her professional responsibilities in that jurisdiction.
Ms Z confirmed that she had attended a continuing professional development course, relating to methamphetamine use by parents and the implications of such use for parental capacity. She deposed that she and Ms Q had been invited to take part in a panel discussion as part of this course, following an expert presentation. The event was also a fundraiser for the City N Children’s Contact Centre.
It is Ms Z’s evidence that Ms Q, in her capacity as a senior officer of the DCP’s Region P office, has contacted her on several occasions to communicate matters which she (Ms Q) considers are relevant to X and Y and so within the scope of her appointment as their independent legal representative. Amongst other things, Ms Q has informed Ms Z that she has interviewed the father and paternal grandparents and the fact that Mr Peyton had not contested the Youth Court proceedings in respect of D.
It is further the effect of Ms Z’s evidence that she was not the instigator of the Department’s decision to further investigate the father in mid-January 2022 although Ms Q informed her that she had interviewed both Mr Peyton and the paternal grandparents. Ms Q had also advised her that a report had been prepared for the court on 16 February 2022. Essentially, Ms Z denies that she has behaved in anything other than a professional manner with Ms Q, a person with whom she has extensive professional connections.
Ms Z confirmed that she had been privy to the Family Dispute Resolution Conference of which the parties had reached an agreement to extend the father’s time with X and Y. It is her evidence that she approved this agreement and implicitly considered that it was in the best interests of the children concerned.
In this context, it is her evidence that she had nothing to do with any correspondence forwarded by the DCP to Mr Peyton in which the Department purported to support a decision taken by the mother not to allow X and Y to spend time, with their father, on the weekend of 12 February 2022.
As a consequence of the mother’s actions, Ms Z deposed that she was not in a position to present the agreed minute of order to the court on 17 February 2022. Subsequently, this agreement was overtaken by the father’s application to have her disqualified from the case. In this regard, Ms Z denies that she has acted in any way, which can be regarded as exhibiting partiality in favour of one or other of the parties concerned.
Rather, it is her position that she has, as best as she has been able, to remain focussed on the best interests of X and Y, in a particularly difficult and controversial case involving significant child protection issues. As such, she strongly resists the application to have her discharged from it.
In respect of her relationship with Dr T, the ICL confirms the significant relationship between the two but indicates that Dr T lives in Adelaide, while she lives in City N. Ms Z denies having had any discussions with her sister about the case or about Mr Peyton specifically. As is evident, Dr T was engaged by the Adelaide office of DCP prior to Ms Z’s appointment as ICL and as a consequence she had no prior knowledge of her sister’s prior involvement in the case at the time of her appointment.
MS KENNEDY’S CURRENT POSITION
In her affidavit, filed on 3 March 2022, Ms Kennedy delineates her perception that she, for no fault of her own, has been placed at a pinch point by the competing claims of the father and the paternal grandparents, on the one hand, and officers of the DCP on the other. In her affidavit she summarises her dilemma in the following terms:
On the one side I have DCP telling me that it is my job to keep the children safe and act protectively and that in their view, Mr Peyton is not a safe person to be around children. On the other side I am in the family law jurisdiction where I have felt pressured to move the matter forward and am told that supervised access cannot stain in place forever. Yet this is exactly what DCP are telling me and that the only access the girls have with Mr Peyton should be professionally supervised.[20]
[20] See Affidavit of Ms Kennedy filed 3 March 2022 at [8].
In this context, Ms Kennedy deposes that she continues to feel some anxiety about the prospect of X and Y interacting with their father in an extended and unsupervised fashion, given what she has been told about D and her own past experience of him as a parent. In this context, she agrees that she has, from time to time, instigated contact with Ms Q.
It is her submission of her counsel, Ms Horvat, that the Department have informed her that it will consider removing X and Y from her care if they are dissatisfied with any arrangements for the children to spend time with their father. For obvious reasons, she is highly anxious at the prospect of the Department forming the view that she is not acting protectively in respect of the children.
Ms Kennedy does not seek for Ms Z to be discharged. At this stage, it is her preference that the father continue to spend supervised time with X and Y subject to the professional supervision of the City N Children’s Contact Centre. Essentially she has resiled from the earlier agreement reached between the parties at the January Family Dispute Resolution Conference.
In general terms, it is her position that tensions between her and the paternal aspects of the children’s family remain unacceptably high and the children themselves are anxious. She refutes any suggestion that she has breached court orders without reasonable excuse, it being her position that the occasions which the children have missed have been due to illness.
OTHER MATTERS
I have made it clear to the parties that I am currently only dealing with the disqualification application, not what should be the ongoing interim arrangements for the father and the paternal grandparents to interact with X and Y. I have also foreshadowed my view that, due to the complexity of these proceedings, it is appropriate that they be transferred to Division 1 of the Federal Circuit and Family Court of Australia.
It is also clear that, in a formal sense, the Department will not be a party to this aspect of the proceedings. As a consequence, Mr Bowler, counsel for the father, objects to any representative of the Department being allowed to make any submission to the court or provide any further report to it, as was done in mid-February and on earlier occasions in the proceedings.
Notwithstanding the father and paternal grandparents’ application to have her disqualified, Ms Z has remained engaged in the proceedings and has supplied a proposal, which she believes will secure X and Y’s best interest and provide a pathway to navigate through the currently highly contested circumstances between all concerned.
Ms Z has proposed that the father spend time with X and Y, at the City N Children’s Contact Centre and subject to its supervision, on two occasions scheduled for 20 March and 2 April 2022 and thereafter the time ordered on 13 October 2021 should resume until 12 June 2022 on which occasion:
Time spending shall take place in accordance with Order 3(a) of the 13 October order (5 hours on two out of three Sundays) safe and accept that the time be extended to occur between 9.00 am and 5.00 pm pursuant to the terms of the FDR agreement reached in January 2022.
In addition, the proposal envisages the use of other supervisors, acceptable to the father and their use of an agreed narrative which was also provided to me and which had been prepared and agreed at the earlier Family Dispute Resolution Conference. In this context, Ms Z proposed that an injunction be made restraining all concerned from discussing issue to do with Mr Peyton’s care of D, with the children, other than in terms of this narrative.
Significantly, in my view, the father and the paternal grandparents have indicated their acquiescence to these orders. Ms Kennedy does not agree to them. Accordingly, it is telling that Mr Peyton and his parents accept the input and recommendations of Ms Z, when they each perceive these interventions suit them, but otherwise wish her gone from the case. In this context, Mr Bowler has pressed that I deal with the outstanding interim issues prior to the case being transferred to Division 1.
LEGAL CONSIDERATIONS AND CONCLUSIONS
This is a highly complex, emotionally laden and controversial case, which clearly justifies the appointment of an ICL. The position of the father and the paternal grandparents is that Mr Peyton has been the subject of an egregious miscarriage of justice stemming from a flawed and biased investigation by DCP, orchestrated primarily by Ms Q, into the circumstances surrounding D’s injuries.
They are entitled to hold their views and to advocate them in these proceedings, as they each see fit. In my view, the issues pertaining to D are germane to these proceedings. As such, pursuant to the provisions of section 68LA(2), Ms Z is required to consider that evidence and form whatever view of it, which she considers appropriate, within the context of the service of X and Y’s best interests and advocate that view to the court.
In this context, she is entitled to point out that the medical evidence regarding D’s injuries is, as yet, unchallenged and points to the involvement of one or both of his parents, one of whom is a parent and party in the proceedings concerning the children whom she represents.
In addition, the nature of this evidence requires her (Ms Z) to have professional dealings with Ms Q, a person whom the father and the paternal grandparents mistrust, and whose judgment and impartiality they question. Ms Z has been candid about the, as yet, unrebutted medical evidence in the case and its gravity from her perspective.
The danger in this situation is that because she must have dealings with Ms Q, in the context of the controversies surrounding D, Ms Z will become a lightning rod for Mr Peyton and his parent’s dissatisfaction with Ms Q. In this context, the court must treat allegations of impartiality cautiously. An ICL is not to be discharged merely because a party has not accepted the position advocated by him or her or is critical of it or inclined to point out deficiencies in it.
As Murphy J pointed out in Knibbs & Knibbs,[21] an ICL has the same obligations to the court as any other legal practitioner, albeit without the responsibility to follow instructions, given the fact that the individual represented by them is a child. This circumstances, when coupled with the ordinary professional responsibilities of a lawyer, necessarily entail an onerous level of responsibility on the ICL. Murphy J said as follows:
Once it is understood that the ICL’s primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances - provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.
Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).[22]
[21] Knibbs & Knibbs [2009] FamCA 840 at [41]-[61] (Murphy J).
[22] Ibid [43]-[45].
Given these factors, as Murphy J observed, it is perhaps inevitable that an ICL, as with Ms Z in the present matter, in pursing an independent and fearless line on behalf of the child being represented, will fall into conflict with one or other of the parties concerned, given the obligation imposed upon the ICL to analyse the evidence of those other parties, invariably the parents of the child being represented. This may be perceived by those individuals as unwarranted and partial criticism of him or her and even an affront to that person’s special position and status of obligation as a parent.
His Honour said as follows:
The Independent Children’s Lawyer is, immediately upon appointment, in an invidious position. He or she is obliged to look beyond the assertions and counter assertions advanced by children’s conflicted parents (and others). In doing so, he or she is presuming, by dint of statutory and other responsibilities, to interfere, to one degree or another, with what can be seen to be a basic right: the right of a parent to parent his or her child in the way they best think fit.
Yet, when parents, through their conflict or the nature and extent of assertions one makes against the other, abdicate to the court decisions about the best interests of their children, views other than their own, including the views of an ICL can, and in the case of the court will, intervene. In that situation, rights and considerations relevant to a determination of best interests enshrined in the Act predominate, as do duties owed to the court by an ICL.
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.
In Lloyd & Lloyd & the Child Representative (“Lloyd”),[23] Holden CJ listed four non-exhaustive considerations which might lead to the discharge of an ICL, which can be summarised as follows:
·Evidence indicating the ICL had acted contrary to the best interests of the child was being represented;
·The ICL was professionally incompetent;
·The ICL had demonstrated a lack of professional objectivity;
·A continuation of acting would involve a breach of fiduciary duty or a conflict of interest.
[23] Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 at 87,687 (Holden CJ).
I do not consider that the issues raised by either the father or the paternal grandparents support any assertion that Ms Z has acted in a way which is incongruent with X or Y’s best interests or that she lack either professional competence or the required degree of objectivity.
It was appropriate that a Family Report be commissioned in the case at a reasonably early stage. It was clearly necessary that the relevant expert be provided with the evidence relating to D and canvas that evidence with Ms Peyton. This led to Ms U making the recommendations, which she did, relating to the need for on-going lay supervision, noting the importance of the children’s paternal relationship for them.
With the receipt of this report, which was not necessarily congruent with the departmental view of the case, it was appropriate, in her role of an honest broker, for Ms Z to attempt to broker an agreed positon, which she successfully did in October of 2021. In so doing, in my view, she demonstrated her independence from Ms Q, who later demonstrated she did not accept the appropriateness of the paternal grandparents to provide lay supervision.
The correspondence, to which Mr and Mrs Peyton senior take exception, was an attempt by Ms Z to mediate a way through the complexities in the case, particularly the potential impact on X and Y of any ill-considered discussion with them about the circumstances of D. This is one of the central issues in the case.
In my view, it would have been professionally remiss of Ms Z not to have canvassed the issue, given not only the Family Report but also other aspect of the evidence. She is under an obligation, in appropriate cases, to raise issues with parties, about which they themselves may feel uncomfortable or in fervent disagreement. She is an advocate for the children whom she represents, not any of the parties or any external agency.
As Holden CJ pointed out in Lloyd:
It would be an intolerable situation if a party could successfully apply to have a child represented removed simply because that party perceived that the representative was not ‘on side’ or the tide was not running in his or her favour.[24]
[24] Ibid at 87,689.
It was for these reasons, His Honour indicated that allegations of impartiality needed to be treated with caution. In addition, given ICLs are largely publically funded, considerations of public policy are also engaged. It is potentially an expensive exercise for an ICL to be discharged and a fresh one appointed, given the complexity of issues and the number of documents required to be assimilated by any new ICL. These issue are present in the current matter, which has generated many lengthy and complex documents and issues.
Chisholm J raised similar considerations in T & L,[25] when he said as follows:
The critical question in considering an application to remove a child's representative is whether the representative is likely to carry out his or her task properly ... it might well be appropriate to remove a child's representative where the evidence showed that he or she had deliberately misled the Court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child's representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child's representative to "act in an independent and unfettered way in the best interests of the child.
It is appropriate to note in this connection that it is frequently part of the child's representative's role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child's interests. Differences of views are of course inevitable in litigation. While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests. I agree with the child representative's submission that it is important to avoid a situation in which the child representative "is a captive or the most vocal, litigious or dissatisfied parent or party.[26]
[25] T & L (2000) 27 Fam LR 40.
[26] Ibid 49 [54]-[55] (Chisholm J).
The fact that the father and paternal grandparents disagree with the views advocated by Ms Z or with her approach in the case are not grounds to have her removed, in the absence of any properly based complaint regarding her professional competency. In addition, it was essential that Ms Z liaise with Ms Q, from time to time, given the relevance of the evidence held by her.
Significantly, the fact that Ms Z has disagreed with the departmental line, at relevant times, is also indicative of the fact that she cannot be regarded as a captive to its view or is incapable of forming her own independent view of the case. Similarly, at the present time, vis-à-vis what is the appropriate interim regime, the position advocated by Ms Z is rejected by Ms Kennedy, but supported by Mr Peyton and his parents. In my view, it is axiomatic, in practical terms that Ms Z has trod and continues to tread a fiercely independent line in the case, which is objectively independent of each of the other parties and indeed the DCP.

I acknowledge that the legal world in City N, particularly in regard to the practice of family law is small indeed, and to an outsider might appear somewhat incestuous. Necessarily, the pool of solicitors available to do both family law and care and protection work is limited. The same is true so far as the number of child protection officers who prepare reports for DCP and who are involved in the prosecution of its cases in the Youth Court. Inevitably the same individuals appear in many of the cases and their professional paths cross frequently. This is the nature of legal practice in the small rural centres of Australia, not only the Region P.
The test of whether an Independent Children’s Lawyer should be dismissed on the grounds of perceived bias is similar to that for judicial disqualification. The perception of bias is to be judged on an objective basis, not on what a party to the proceedings personally feels, no matter how strong that feeling is. In Kingley & Arndale (No 2),[27] O’Reilly J formulated the test as follows:
…in relation to an Independent Children’s Lawyer the appearance of bias may be tested by whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer might not bring an impartial or unprejudiced mind to the task of independently representing a child.[28]
[27] Kingley & Arndale (No 2) [2010] FamCA 968.
[28] Ibid [33] (O’Reilly J).
Other authority makes it clear that this test must be applied within the unique rubric of duties imposed upon an ICL, including the fact that very often the relevant proceedings, as here, are highly controversial and emotionally laden. In Dickens & Dickens,[29] Watts J said as follows:
The test that I shall apply is that the father needs to establish that the Independent Children's Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children's Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41] – [61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children's Lawyer to argue firmly and fearlessly for what the Independent Children's Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children's Lawyer is in when fulfilling that role because it may be that the Independent Children's Lawyer is required to challenge the position of one or other of the parents.[30]
[29] Dickens & Dickens [2016] FamCA 115.
[30] Ibid [52] (Watts J).
I do not consider that a fair-minded lay person, who was aware of the particular incidents of legal practice in an Australian country town, in the family law and child protection jurisdiction, would consider that there was anything untoward in how Ms Z has interacted with Ms Q, or indeed any of the parties given all the circumstances of this case, or perceive that she has acted in any way inconsistent with her professional obligations towards X and Y.
In particular, I do not think that such a person would regard the fact that, prior to the case in question, Ms Z and Ms Q had taken part in the same professional forum or indeed had been involved together in other cases, in a professional sense, would cause that person to think that either Ms Z would be unable to act appropriately for the children of another distinct family or cause any perception that she and Ms Q were too close or familiar with one another to enable her to do so properly.
In this context, Mr Peyton is not able to point to any knowledge he has of any particular incident of improper communication between Ms Z and Ms Q. In my view to a large extent, his case is one of innuendo based on his mistrust of Ms Q, a person with whom Ms Z is obliged to interact because of her professional obligation towards X and Y and whom she knows professionally because the two work in the same country town. A properly informed lay person, in my view, would accept this occurrence as a normal incidence of professional life, in a country town such as City N.
The final issue relates to Ms Z’s relationship with her sister and the professional report prepared by Dr T in respect of the father, prior to the appointment of the ICL. Whether the father chooses to call Dr T in any trial is a matter for him. There can be no suggestion that the ICL has attempted to influence her sister in the manner in which she was to conduct the forensic examination conferred upon her by DCP.
Dr T’s report is not relevant to any assessment of whether the father did or did not injure D. Her opinion was directed only towards the father’s mental state and prognosis at the time of assessment. Mr Peyton has not indicated that he will seek to challenge this prognosis. Ms Z herself has deposed that she will not appear as counsel at any trial of the proceedings, and so will avoid the potential embarrassment of having to cross-examine her sister.
Again, in my assessment, a fair-minded lay observer would regard the fact that the ICL’s sister had prepared a report, prior to the relevant appointment and unbeknownst to the ICL, as nothing more than a coincidence and certainly not something, in objective terms, as warranting the discharge of the ICL or being any factor which would impact upon the manner in which the ICL concerned would discharged the statutory role conferred upon her. Given the costs to the community of briefing a new ICL and of such a person having to read the copious documents in the case, it would not be in the public interest to discharge Ms Z on such a basis.
In conclusion, this is a complex and multifaceted cases, involving serious child protection issues. It is replete with controversy and, as a consequence, Ms Z treads a tight rope, whilst being the focus of the dissatisfaction of not only her own conduct in the case but also the DCP, which resolutely has declined to be involved in the case. Inevitably, she will ruffle some feathers. It is not her responsibility to mollify any of the other parties in the case.
It is impossible for Ms Z to please all concerned, whilst at the same time discharging appropriately the arduous role placed upon her. In these circumstances, bearing in mind the central role of ICL’s in the protection of children, and advocating their interests independently in complex litigation, such as the present matter, the court should be slow to discharge an ICL, largely on the complaints of one party, whose personal perception is that he or she has been hard done by or is unheard or misrepresented.
The court should not condone a litigant endeavouring to micro-manage the ICL or critique every step that they take.[31] This is particularly telling in the current matter in which the father and his parents approve of some actions taken by the ICL but disapprove of others. In Leroux & Leroux & Ors (Independent Children’s Lawyer),[32] Benjamin J said as follows:
The Independent Children’s Lawyer needs to do his job. He needs to apply his skills which he has learnt over very many years and not to have to second guess every word he utters and every preliminary view he may take, given the context of his other evidence. It is not a matter for a litigant to endeavour to micro manage the Independent Children’s Lawyer or critique the Independent Children’s Lawyer with every step he takes.
[31] See Horner & Horner [2018] FamCA 487 at [10] (Tree J).
[32] Leroux & Leroux & Ors (Independent Children’s Lawyer) [2015] FamCA 1128 at [218] (Benjamin J).
In my view, the evidence available to me indicates that it is X and Y’s best interests that Ms Z continues to get on with her job of representing them. There is nothing to indicate that she has performed the task conferred upon her in anything other than a professional and entirely appropriate manner. As a consequence of her acumen and ability, garnered over many years, she has been compelled to advance views which have not accorded with those of each of the parties involved in the case. This is part and parcel of her role and should not cause her to be removed.
In all these circumstances, I dismiss the father’s application for removal of the ICL. In terms of the costs application brought by the ICL, I will reserve that application which can be revisited when the proceedings are concluded if the ICL still wishes to pursue that application at that stage.
Although the case needs to be transferred to Division 1 of the Court, I agree that I am to be regarded as seized of the outstanding interim applications regarding what should be the arrangements for the children to spend time with their father, and what conditions should attach to such time, given the parties no longer share any consensus from the January Family Dispute Resolution Conference. I will nominate 12 April 2022 at 10:00 am for the hearing of this application.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 28 March 2022

File number(s):	ADC 4269 of 2020
Judgment of:	JUDGE BROWN
Date of judgment:	28 March 2022
Catchwords:	FAMILY LAW – interim hearing – application for the discharge of the Independent Children’s Lawyer – where it is alleged that the Independent Children’s Lawyer is biased, or perceived to be bias – consideration of the statutory duty of an Independent Children’s Lawyer – consideration of the grounds to warrant the removal of an Independent Children’s Lawyer – considerations of whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer is biased or impartial – where the parties positions are polarised and proceedings are bitterly contested – previous departmental involvement and removal of a child not subject to the proceedings – where father was previously charged with criminal neglect – where the issues relating to the other child who is not subject to these proceedings are germane – best interests of the child – assessment of risk – considerations of public policy – matters to be considered.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 64B, 68L, 68LA 69ZW, 91B
Cases cited:	Kennedy & Peyton [2020] FCCA 3268 Dickens & Dickens [2016] FamCA 115 Horner & Horner [2018] FamCA 487 Kingley & Arndale (No 2) [2010] FamCA 968 Knibbs & Knibbs [2009] FamCA 840 Leroux & Leroux & Ors (Independent Children’s Lawyer) [2015] FamCA 1128 Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. Re K (1994) 17 Fam LR 537. T & L (2000) 27 Fam LR 40.
Division:	Division 2 Family Law
Number of paragraphs:	159
Date of hearing:	18 March 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Horvat
Solicitor for the Applicant:	Degaris Lawyers
Counsel for the First Respondent:	Mr Bowler
Solicitor for the First Respondent:	Jordan & Fowler Lawyers
Counsel for the Second Respondent:	Ms Tinning
Solicitor for the Respondents:	Adelta Legal
Counsel for the Independent Children's Lawyer:	Ms Lindsay
Solicitor for the Independent Children's Lawyer:	Ms Z

ADC 4269 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KENNEDY Applicant
AND:	MR PEYTON First Respondent MS C PEYTON AND MR B PEYTON Second Respondents
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	28 MARCH 2022