Kingley & Arndale (No 2)
[2010] FamCA 968
•8 October 2010
FAMILY COURT OF AUSTRALIA
| KINGLEY & ARNDALE (NO. 2) | [2010] FamCA 968 |
| FAMILY LAW – PROCEDURE – Application for removal from file of family consultant’s reports and that copies released be recovered – Application inferentially that family consultant be discharged – Application for appointment of new family report writer – Application for discharge of independent children’s lawyer and appointment of new independent children’s lawyer – Orders made for discharge of family consultant and appointment of new family consultant – Orders made concerning existing reports – Order made that independent children’s lawyer not be discharged – Observations as to the need for family consultants to be seen to be independent witnesses – Observations as to the role of independent children’s lawyers |
| Family Law Act 1975 (Cth) ss 69ZN(3), 69ZN(5)(a) |
| Antoun v The Queen [2006] HCA 2 Bennett & Bennet t (1991) FLC 92-191 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Harris & Harris (1977) FLC 90-276 Johnson & Johnson (2000) 201 CLR 488 Knibbs & Knibbs [2009] FamCA 840 Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 Reisner & Reisner (2010) FamCA 473 |
| APPLICANT: | Mr Kingley |
| RESPONDENT: | Ms Arndale |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Brasch |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| DATE DELIVERED: | 8 October 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 7 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Smith & Associates |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Brasch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart Legal Aid Queensland |
Orders
IT IS ORDERED
Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010
Mr P be discharged as the family consultant in the proceedings.
Mr P’s reports dated 7 September 2009 and 30 April 2010 and any affidavits annexing copies of or referring to the contents of those reports not be removed from the Court file but be sealed up in envelopes bearing the same folio numbers and marked “Not to be opened other than by the Order of a Judge”.
Mr P’s reports dated 7 September 2009 and 30 April 2010 not be introduced into evidence in these proceedings, not used for any purpose in them and there be no reliance on them by any party or any witness or the independent children’s lawyer in the proceedings.
Manager Child Dispute Services appoint a new family consultant in the matter to prepare a new family report as soon as possible.
The independent children’s lawyer not be discharged and a new independent children’s lawyer not be appointed.
Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010 otherwise are dismissed.
Listing 22 October 2010 vacated
The listing on 22 October 2010 in relation to interim parenting orders sought by the mother in her application filed 30 June 2010 paragraphs 1, 2 and 3 and by the father in his amended response filed 6 September 2010 be vacated.
Further listing
The matter be listed at 10.30 am on 30 November 2010 before Registrar Kane for directions in relation to:
a.the listing of the applications for interim parenting orders referred to in paragraph 7; and
b.trial directions.
If possible, dates for trial be allocated no later than early 2011 before the Honourable Justice O’Reilly or another judge for 15 days as estimated by Mr Baston of Counsel as fixed trial dates.
Order 12 May 2010
Paragraph 6 of the order made 12 May 2010 is discharged.
Dr V
The mother and the father attend upon Dr V for further psychiatric assessment and report on dates and at times advised to them by the independent children’s lawyer.
NOTATION:
In relation to paragraph 9 Mr Baston of Counsel is engaged for the mother for the trial.
IT IS NOTED that publication of this judgment under the pseudonym Kingley & Arndale is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1363 of 2008
| MR KINGLEY |
Applicant
And
| MS ARNDALE |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the child C, born in December 2006, now three years, who will be four years in December 2010.
In the proceedings the mother has filed an application on 30 June 2010 seeking, relevantly, the following relief which was set down for hearing separately from other relief sought in that application which, by paragraphs 1, 2, and 3, relate to interim parenting matters and other procedural matters presently set down for hearing on 22 October 2010.
Paragraphs 4, 5 and 6, with which I am presently concerned, seek the following:
4. That the Child and Parent Issues Assessment of 7 September 2009 and the Family Report of [Mr P] dated 30 April 2010 be removed from the file and all copies of such documents be recovered from any person to whom such documents have been provided.
5. That a family report be prepared by Ms [B], Clinical Psychologist, and that the parties and [C], [Y], [Z] and [W] attend upon Ms [B] for the purposes of such report.
6. That Ms Dart be discharged as the ICL and the Director, Legal Aid (Queensland) appoint an ICL other than Ms Dart.
Paragraph 4
Mr P was appointed as the family consultant in the matter. At all relevant times Mr P was and is an employee of the Court with Child Dispute Services. In effect, by paragraph 4, the mother seeks that Mr P be discharged as the family consultant, as well as the specific relief sought concerning his reports. This is made plain in the written submissions of Mr Baston of Counsel, who previously appeared for the mother, filed 10 August 2010, par 5(3), which raises that one of the matters for consideration is whether Mr P ought have no further involvement in the case.
The basis of this part of the application is threefold:
(a)a statement attributed to Mr P by Ms Brasch of Counsel, for the independent children’s lawyer in another matter, namely Reisner & Reisner [2010] FamCA 473, shown in the transcript 28 April 2010 in that matter, T2/14‑23 where Ms Brasch was addressing Barry J:
MS BRASCH:
…
“He asked”, as in his Honour asked, you can tell by someone’s reaction whether they’re innocent. Mr [P] said he said, “I’m not judge.” I further clarified with Mr [P] yesterday, on advice I must say, from - I have taken advice on a course of conduct from relevant Queensland bar ethics counsellor - I clarified the matter with Mr [P] yesterday who further advised that he had gone to your Honour’s chambers to discuss another matter. Your Honour said he liked the report, as in the report with respect to R. The context is - Mr [P] is unsure whether there was one or two discussions, or they may be, let me put it that way, there may be one or two discussions. He indicated yesterday he thought this discussion was in March, but it may be that there was a discussion prior to the trial in October. (emphasis added).(b)the circumstance that on 28 April 2010, in Reisner, Barry J stood aside on the application of Ms Brasch of Counsel for the independent children’s lawyer in that matter on the basis that his Honour in Chambers had discussed that matter with Mr P.
(c)the circumstance that, apparently between 28 April 2010 and 12 May 2010, Barry J stood aside in this matter also, inferring that Mr P’s attributed statement in the transcript passage in Reisner was a reference to this matter.
It was argued by Mr Anderson of Counsel, for the father, that no inference could or should be drawn that in Mr P’s attributed statement the reference to “another matter” was to this matter, and thus no inference could or should be drawn that Barry J’s standing aside in this matter was by reason of that, as opposed simply to an administrative decision by him or Murphy J concerning case management. Reference was made to the reasons for judgment in this matter of May J, 10 September 2010, sitting in the Appeal Division. It was put that par 15 of her Honour’s reasons is able to be interpreted as Barry J standing aside for administrative reasons only. It was conceded however that in par 16 it is recorded that on 12 May 2010 while releasing Mr P’s family report 30 April 2010 to the parties I referred to the fact that Barry J had disqualified himself. It was not made known to me prior to 12 May 2010 that the parties and the independent children’s lawyer had not been advised that Barry J had stood aside in the matter.
I am able to confirm that on 4 May 2010 I was asked by Murphy J to take this matter onto my docket on the basis that on 29 April 2010 Barry J had stood aside for reasons “similar to” his standing aside in the Reisner matter. Barry J’s decision was his own, taken no doubt to avoid controversy in this matter.
It is very plain, in the circumstances which I have outlined, that Barry J stood aside in this matter because the reference to “another matter” in the transcript passage I have set out was a reference to this matter. Let there be no mystery about this. It is not a matter for inference. As I have said, Murphy J communicated to me that Barry J had stood aside for reasons “similar to” the Reisner matter.
The circumstances thus are that:
a.as at or before 28 April 2010 it appears that Mr P had attended Barry J’s Chambers and that they had discussed another matter, which plainly is this matter.
b.Mr P’s family report in this matter 30 April 2010 is dated after that attendance, so that at least one discussion preceded that report.
c.it is unclear whether the discussion or discussions between Barry J and Mr P may even have predated Mr P’s earlier report, that is, the Child and Parent Issues Statement 7 September 2009.
In respect of this last matter however I would emphasise in the transcript passage 28 April 2010 set out above:
He indicated yesterday he thought this discussion was in March, but it may be that there was discussion prior to the trial in October.
It is easy to understand how, without forethought as to the matter, Barry J and Mr P may have fallen into conversation about the Reisner case, and this case. This, I think, was an unfortunate accident, caused perhaps by the peculiar circumstance that the family consultants and the judges are housed in one building, with effect that “Chinese walls” operate, and in the context of the “less adversarial” system concerning children, to which I will refer further below. It is not known whether Barry J invited Mr P to his Chambers, or whether Mr P sought to speak with his Honour, or whether they simply chanced to cross in a corridor with Mr P then ending up in his Honour’s Chambers for an incidental chat. Regardless of how it occurred however, the circumstance is that there has been extra curial communication between a judge and a witness.
Unfortunately, the result is that it cannot now be discerned whether Barry J, in conversation with Mr P, may have made statements which may have influenced Mr P’s reports so as to taint them. Put simply, it is not known what passed between his Honour and Mr P, so that even with the best endeavours by Mr P to state his own opinions, human nature is such that the possibility cannot be excluded, despite the Court’s confidence in Mr P’s expertise and undoubted independence in the performance of his role, that, without any blame or intent, whilst formulating and expressing his own opinions they may have become coloured by statements made by his Honour, perhaps even unwittingly absorbed and no matter how casually they may have been expressed by his Honour by way of comment or chance remark about the parties or the issues. There is, thus, the reasonable apprehension that Mr P’s opinions as the family consultant may be affected by remarks in Chambers by his Honour.
Usually, a family consultant or family report writer will state in a report the persons he or she has interviewed or had discussions, the dates of those, what was said in the interviews or discussions, and all of the observations made as to such interviews or discussions as part of the substratum of facts and assumptions underlying his or her opinion. Usually, such persons will themselves be witnesses or be available as witnesses so that they can be cross examined, as can the opinion writer, as to what transpired between them. It is inappropriate in this case, as much as any other, that Barry J should become a witness of fact as to what transpired between himself and Mr P, and inappropriate that Mr P be cross examined as to what transpired between him and his Honour unless his Honour also be a witness as to this and accordingly be available for cross examination.
In this regard, it was put on behalf of the father, who opposes the mother’s application, that Mr P can be cross examined as to what was exchanged between him and his Honour. As I have explained, however, this is not a complete answer to the matter. The mother would be entitled also to have his Honour, perhaps pursuant to a subpoena, state his version as to what transpired between him and Mr P. This most plainly is undesirable, that is, to have a judge of the Court as a compellable witness and subject to cross examination as an incident of the general dispatch of the Court’s business. (The matter plainly is different if proceedings concern a judge personally as a party or necessary witness of fact in a personal capacity rather than in the discharge of his or her function as a judge).
I have considered very carefully all of the submissions of Mr Baston of Counsel, for the mother, when he appeared for her; of the mother when appearing for herself; of Mr Anderson of Counsel, for the father; and Ms Brasch of Counsel, for the independent children’s lawyer.
However, the circumstance is that there has been extra curial communication between his Honour and Mr P. Public perception is important, in that justice must not only be done but be seen to be done. If I do not order that Mr P not continue as a witness in the case, there may be public perception not only of sanction of permissible collusion between a judge and a witness, which would be very damaging to the judicial system, and to public confidence in judicial independence, but also that any judge who in the future may hear the matter and who might objectively wish to accept Mr P’s opinion similarly is maligned so as to bring the justice system into disrepute.
In all of the circumstances, I have no hesitation in ordering that Mr P be discharged as the family consultant in the proceedings. I would emphasise, in making that order, that this unfortunate set of circumstances probably has resulted from unwitting communication in the peculiar circumstance of the family consultants and the judges being housed in one building, so as appropriately to be described as a “situational accident”, particularly in the context of the “less adversarial” system in relation to child matters which, in many respects, is still a novelty in litigation and the hallmark of which is encouraged informality. Perhaps both his Honour and Mr P considered that this feature of the “less adversarial” system permitted their communication. However, with hindsight, the matter is clarified as impermissible.
In deciding to discharge Mr P, I have carefully considered, in particular, the submission of Mr Anderson of Counsel, for the father, that to remove Mr P’s involvement would require the appointment of a new family consultant, and fresh interview with the child which, it was put, would not be now in her best interests and may be tantamount to “systems abuse” in relation to the child. In the past, it was considered that best interests considerations related to substantive rather than procedural matters. It is plain now, however, by reference to certain of the provisions of Division 12A of the Family Law Act 1975 (Cth) that best interests considerations may extend to procedural matters as well as substantive matters. This much is not in dispute. See, eg, s 69ZN(3); s 69ZN(5)(a). However, having heard all of the submissions in relation to this aspect of the matter, I am not satisfied that the circumstance of the child being the subject of a further family report may be likely to impact adversely on her. She is very young, as I have said, three years, to turn four years in December 2010. Further, the mother, in her submissions, pointed to the circumstance that the child previously has not been interviewed by Mr P, but rather that he observed the child in the situation described in his report. Indeed, the child is too young to be interviewed, as such, as opposed to being observed. There is much force in the mother’s submission thus that the appointment of a new family consultant or new family report writer would not impact adversely on the child and I accept her submissions in this regard.
As to whether Mr P’s reports be removed from the file, I will not order such. The Court is a superior court of record. Thus, what is on the record must remain on the record and thus on the Court file. I will, however, order that Mr P’s reports on the Court file, and any affidavits annexing copies of or referring to the contents of those reports, be sealed up in envelopes bearing the same folio numbers and marked “Not to be opened other than by the Order of a Judge”.
As to whether the copies of Mr P’s reports be recovered from the persons to whom they have been distributed, in my view there is no basis to make such an order. In particular, in relation to the family report dated 30 April 2010, by way of the release order made on 12 May 2010, that distribution has occurred. That order cannot now be revoked. It has passed into the record, and thus is now able to be set aside only upon a successful appeal. There is no basis to impeach the order when it was made.
I will, however, order that Mr P’s reports not be introduced into evidence in the proceedings, nor used for any purpose in them, and that there be no reliance on them by any party or any witness or the independent children’s lawyer. Such order, in my view, will achieve the objective sought by the mother.
Paragraph 5
I am not inclined to accede to the mother’s application that Ms B be engaged to prepare a family report, for the quite simple reason that a family report ought not be commissioned by only one party, or the writer be the choice of only one party, particularly if resisted by the other party, but that rather, in such circumstances, a person be arranged neutrally, usually by the independent children’s lawyer. Put shortly, a family report by its nature must be by a person jointly agreed between a child’s parents, or alternatively, if there be no agreement, by a person appointed or arranged by the independent children’s lawyer. Otherwise, there can be allegation of partisan support, and thus perceived bias.
I understand that the independent children’s lawyer’s funding in this case is capped, and perhaps even run out, such that the independent children’s lawyer may not now have funding for a further family report.
It would not be fair, in the circumstances which have obtained, to ask the mother and the father to share the cost of a new privately commissioned family report, having regard to their financial circumstances. I will, therefore, order that the Manager, Child Dispute Services, appoint a new family consultant in the matter, to be funded by the Court, to prepare a new family report as soon as possible. Such order is consistent, in my view, with the present system that in each parenting case there be a family consultant appointed by the Court, via Child Dispute Services, and that the cost of such thus be absorbed as a Court cost in proceedings such as these, or that at least in this particular matter the cost should be so absorbed.
I have indicated that I will order that Mr P’s reports be sealed up and not be used for any purpose in these proceedings. Although there may be concern as to “Chinese walls” within Child Dispute Services, in my view there can be no valid criticism of my ordering that the Manager, Child Dispute Services appoint a new family consultant in the matter, even if such be a Court employee. Each of the persons employed by the Court as a family consultant enjoys the confidence of the Court in his or her ability to be independent in the tasks assigned to them and as to their integrity in the performance of their important role. There can be no basis, thus, for criticism by the mother that any new family consultant designated by the Manager, Child Dispute Services would not faithfully perform that independent role.
Paragraph 6
Relevant principles
In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to some of the authorities concerning the role of an independent children’s lawyer. Saliently, I would refer to two of those authorities, which emphasise that the role is one of independence, and that whilst the duty of an independent children’s lawyer is to act impartially, it is not inconsistent with that duty for an independent children’s lawyer, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action.
The first is Harris & Harris (1977) FLC 90-276 at 76,476 in which Fogarty J remarked that the role of an independent children’s lawyer has unusual features, which he identified as including that an independent children’s lawyer does not necessarily advance what his or her “client” wants but what is in the best interests of that “client” (being a child) and to that extent exercises an independent judgment “quite out of character with the position ordinarily occupied by an advocate”.
The second is Bennett & Bennet t (1991) FLC 92-191 (Full Court) at 78,259:
…We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duty to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative. …
(See further per Murphy J in Knibbs at [34-35])
As to applications for the discharge of an independent children’s lawyer, in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 (referred to by Murphy J in Knibbs at [38]-[39]) Holden CJ expressed that a court should be slow to discharge an independent children’s lawyer, and that in his view it is only in cases of actual rather than perceived impartiality that consideration should be given to the discharge of an independent children’s lawyer. It is convenient to set out Murphy J’s text in Knibbs:
38. Each of the parties in these proceedings relied upon the decision of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. In that decision, His Honour referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.
39. The reasons why that is so, as identified by His Honour include:-
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative”.
Murphy J in Knibbs at [40] said that he did not necessarily agree with the last of these statements, that is, that it is only in cases of actual rather than perceived impartiality that such consideration should be given, but he did not elaborate on this.
For my part, respectfully I am in agreement with Murphy J that is it not only in such cases, that is, cases of actual rather than perceived impartiality that such consideration should be given for the reason that justice must not only be done but be seen to be done in the proper administration of the justice system. This is the underlying philosophy of the apprehended bias principle. Thus, in my view, it is appropriate to consider the removal of an independent children’s lawyer if actual bias be demonstrated, or apprehended bias. It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial.
In this regard, the authorities concerning apprehended bias in judges are analogous, and it is relevant to refer to High Court authority on the point.
In Johnson & Johnson (2000) 201 CLR 488 at [11]-[14], the majority made clear that the test for the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the question the judge is required to decide. By analogy, I would interpolate that 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. In Johnson, their Honours made clear also that the hypothetical fair-minded lay observer of conduct is postulated in order to emphasise that the test is objective. See also Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8].
In Antoun v The Queen [2006] HCA 2 at [34] Kirby J in relation to recusal by a judge said:
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this Court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal. (footnotes omitted.)
Although dealing with recusal by a judge in that case, as opposed to an application by a litigant for the removal of an independent children’s lawyer, as in this case, it seems to me that the same principle applies, namely, that in the administration of justice in Australia in the family law system the parties do not have an entitlement to choose who may be the independent children’s lawyer to represent the child, nor seek to change an appointed independent children’s lawyer, other than on the ground of demonstrated actual or apprehended bias.
The mother’s grounds
Against that background, I will now refer to the mother’s grounds of alleged conduct by the independent children’s lawyer as the basis for seeking her removal and the appointment of a new independent children’s lawyer. These are set out in:
·the mother’s affidavit filed 6 August 2010, pars 77-127, and the several prior paragraphs to which they refer, either expressly, contextually or by subject matter or inference, for example, but not limited to, pars 10, 25, 26, 27, 28, 31, 32, 35, 36, 37, 38, 39, 40, 41, 45, 46, 51, 58, 59 and 60.
·a written statement by the mother sworn in oral evidence on 5 October 2010, ex 2.
·her oral evidence given on 5 October 2010.
·a further written statement by the mother sworn in oral evidence on 7 October 2010, ex 4.
The mother relies also upon the materials listed in par 2 of her affidavit filed on 30 June 2010; the submissions prepared by Mr Baston of Counsel filed 10 August 2010; her own written submissions in email form to the independent children’s lawyer, ex 3; as well as her oral submissions made on 7 October 2010.
Ms Brasch of Counsel, for the independent children’s lawyer, requested on 5 October 2010 that the mother provide a list of grounds, to serve as particulars. However, I declined this request, having regard to the mother’s health circumstances, detailed in the reasons for judgment 5 October 2010 in refusing the mother’s application for adjournment of this application, and the circumstance that in the mother’s application, consequently, she is a litigant in person. I observed, however, at the time of refusing Ms Brasch’s request, that the mother’s grounds are clearly expressed in her materials, which I have listed above.
The mother’s application is opposed by both the father and the independent children’s lawyer, who each have read and rely on extensive material, which I need not list but which is recorded in the hearing on 5 and 7 October 2010.
The mother’s grounds, conveniently, may be summarised as falling into 3 broad categories:
·the independent children’s lawyer had close dealings with Mr P, such that she may have aligned herself with his views in the matter.
·perceived failings by the independent children’s lawyer, in relation to past Court events, to bring relevant materials to the attention of the judicial officers dealing with those Court events, and perceived failings in investigating relevant matters to bring them to the attention of such judicial officers.
·a perceived wrongful role by the independent children’s lawyer concerning the parties’ use of contact centres, and her dealings with them, in particular, the O Contact Centre.
Overarching these three grounds the mother put that by reason of them, and having regard to other matters, there is perception by her, and objective perception, of partiality by the independent children’s lawyer of favouring the father rather than the mother.
Analysis of grounds and conclusion
In relation to the first category, I appreciate that the mother’s concern is that even though Mr P’s reports are not to be used in the proceedings, by the orders which I have said I will make, the independent children’s lawyer nonetheless may be influenced by Mr P’s expressed views in the future conduct of the matter on the child’s behalf, or that she may have “aligned” herself with Mr P’s views. In my view, there is no basis for such concern. The independent children’s lawyer, as a solicitor, is an officer of the Court. Further, her role as an appointed independent children’s lawyer is based upon the Court’s trust as to her ability to represent the child independently, that is, independently of any one else’s expressed views in the matter, be those expressed by an expert or lay witness. There is no evidence in the matter to suggest that the independent children’s lawyer has “aligned” herself with Mr P’s views, as opposed to the independent exercise of her role to consider all of the evidence in the matter and to make submissions to the Court ultimately in relation to the child’s best interests. In this regard, if per chance the independent children’s lawyer’s views and Mr P’s views ultimately should overlap or coincide that does not have effect of alignment or adoption of the latter’s views.
Put shortly, on all of the evidence, there is no basis upon which to think that the appointed independent children’s lawyer in this case would fail to act independently in the matter, and on all of the evidence no basis to think that she has aligned herself with Mr P’s views.
In all of the circumstances of the case, there is no reason for me to think other than that the independent children’s lawyer will, as is expected of her in the high duty reposed in her by the Court in appointing her as the independent children’s lawyer for the child, bring other than an independent mind to the matter of the child’s best interests.
In relation to the second category, I have carefully considered all of the mother’s complaints set out in her material, to which I have referred. Objectively, there is no substance in any of them. The role of an independent children’s lawyer is to bring to the attention of a judicial officer, upon the happening of any Court event, such evidence and matters as he or she perceives to be relevant to the particular application being dealt with. It will happen, obviously, that the evidence and matters referred to by an independent children’s lawyer at interim hearings, dependent upon their particular purpose, will differ from the evidence and matters referred to by an independent children’s lawyer in the trial phase, and indeed, even in the trial phase, the evidence and matters referred to by an independent children’s lawyer will depend upon that particular phase, for example, Day 1 of the Division 12A hearing, or continuation, or the ultimate trial phase.
Basically, in relation to this second category, I would refer to Ms Brasch’s careful analysis of the mother’s allegations both in her written submissions and in the course of her oral submissions on 7 October 2010, which I accept. It is not necessary for me to set these out in detail. They are available on transcript if required.
In relation to the third category, I am not satisfied, on all of the evidence the mother has presented pertaining to the parties’ use of contact centres, and in particular the O Contact Centre, and the independent children’s lawyer’s role in that, that there was any conduct by the independent children’s lawyer warranting her discharge.
As to the “overarching” ground of subjective perception by the mother and objective perception as she alleges of the independent children’s lawyer’s favouring of the father rather than the mother in relation to the child’s best interests, in my view any subjective perception as to such by the mother is groundless and there is no basis for objective perception as to such.
Having closely examined the three grounds advanced by the mother, I will turn now to the written submissions by Ms Brasch of Counsel, to which I will refer without setting out, and which convince me that there is no substance in any of the mother’s grounds for the discharge of the independent children’s lawyer. In particular, I accept Ms Brasch’s written submissions at pars 7-34, which deal comprehensively with the mother’s complaints, and ultimately her conclusion at par 34:
34. On the totality of the evidence, particularly, a comparison between the mother’s complaints in her August 2010 affidavit and the affidavit of Dr [V], as well as an understanding that disputed facts cannot be tested until trial, it is difficult to see that the ICLs conduct in this matter was in any way:
· acting contrary to the child’s interests
· incompetently in a professional sense
· demonstrated a lack of professional objectivity.
To revisit the principles to which I have referred, the mother has failed to identify any conduct by the independent children’s lawyer which demonstrates actual bias, and has failed to identify any conduct by her to demonstrate apprehended bias, as I have explained it.
In all of the circumstances, I will dismiss par 6 of the mother’s application.
I appreciate that in these reasons I have not set out, with particularity, the mother’s evidence, but rather incorporated it by reference. The mother’s evidence, in particular her affidavit filed 6 August 2010, pars 77-127, does not admit of easy paraphrase or synopsis. Nor do her sworn statements, exs 2 and 4, nor her oral evidence given on 5 October 2010. It is sufficient thus for me to refer to that evidence, without attempted synopsis of it.
In all of the circumstances, as I have found, there is no identified conduct by the independent children’s lawyer to give rise to any finding of actual bias or apprehended bias. As I have said, I will thus dismiss par 6 of the mother’s application.
Listing 22 October 2010
The mother’s application filed 30 June 2010, pars 1, 2 and 3, and the father’s amended response to that application filed 6 September 2010, both of which relate to interim parenting orders, are listed on 22 October 2010. Plainly, those applications cannot proceed on that date, and not until a new family consultant is appointed. I will, therefore, vacate that listing and make a procedural order to allow the applications for interim parenting orders to be set down as soon as possible after a new family report is prepared and released.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 8 October 2010.
Associate:
Date:
6
5
1