Knibbs & Knibbs - [2009] FamCA 840

FAMILY COURT OF AUSTRALIA

KNIBBS & KNIBBS

[2009] FamCA 840

FAMILY LAW – CHILDREN – SEPARATE REPRESENTATION – INDEPENDENT CHILDRENS LAWYER – Application for removal – Alleged partiality – Relevant considerations – Proper role of Independent Children’s Lawyer – “Views” held by Independent Children’s Lawyers about evidence – Role as “honest broker”

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

C and C (1995) 20 FamLR 24
Goode and Goode (2006) 36 FamLR 422
In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191
In the Marriage of Harris [1977] FLC 90-276
Lloyd & Lloyd & the Child Representative [2000] FLC 93-045
Pagliarella (1993) 16 FamLR 688
Wotherspoon & Cooper (1980) 7 FamLR 71; [1981] FLC 91-029

APPLICANT:

Ms Knibbs

RESPONDENT:

Mr Knibbs

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

2169

2009

DATE DELIVERED:

7 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

13^th August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Treherne
Mark Treherne & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Kelly

McMillan Kelly & Thomas

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Ms K McMillan SC

INDEPENDENT CHILDREN'S LAWYER

Legal Aid Office Queensland

Orders

IT IS ORDERED THAT

The Application in a Case filed by the Mother on 11 August, 2009 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2169 of 2009

MS KNIBBS

Applicant

And

MR KNIBBS

Respondent

REASONS FOR JUDGMENT

Proceedings for parenting orders between the parents of two children aged about 6½ and 10½ have, at their centre, allegations of sexual abuse. The trial of those proceedings is due to be heard before O’Reilly J commencing 14 October 2009.
By an application filed on 11 August 2009 (which, given the imminence of the trial, was listed urgently) the mother sought orders that:-
“ 1.[The current solicitor] be discharged as Independent Children’s Lawyer.
2. For another Independent Children’s Lawyer be appointed to represent the children.”
The application is supported by an affidavit by the mother and by an affidavit of a solicitor (Ms Ogge), who is employed by the mother’s solicitors and who deposes to having “primary care and conduct of this matter”.
The application is opposed by the ICL and, in that respect, she is supported by the father who filed no material in respect of this application. The ICL filed no affidavit herself, but relied upon a number of documents including the transcript of proceedings before me on 17 July, 2009, an affidavit of Dr H (paediatrician) and a family report prepared by a family consultant, Mr P.
In her affidavit, the mother deposes to the younger child (born in February 2003) “complaining about particular incidents of child abuse since 2006”. At that time the child was about 3.
Insofar as the matters there deposed to are relevant to the instant application, the mother swears to the following which, it will be noted, are primarily assertions and comments as distinct from probative facts:-
“20.It appears to me that Dr [H] and the Independent Children’s Lawyer both appear to be influenced by the views expressed by the police in this matter, notwithstanding the repeated messages coming to them from the children as reported to the court by my general practitioner, the children’s counsellor, Mr [P] and others and I seek the orders in the application in a case to which this affidavit relates and the appointment of another Independent Children’s representative.
20.I refuse to believe that the children are fabricating the accounts they have given, nor do I accept that I have somehow pressured them to give the accounts they have given, and in [the younger child’s] case since 2006. In any event I believe that [the Independent Children’s Lawyer] has come to a view about the evidence in this case without accounts of relevant players being tested in cross examination, and since the father has not abandoned his cross application, the allegations are serious enough to warrant being tested at trial, before the ICL forms the view she has expressed to the Court …
21.Since she’d occupy such an important role in this case, I believe it is important that the Independent Children’s Lawyer does not prejudge factual issues, and I believe it may influence her in the decisions she makes on an interim and final basis as evidence unfolds prior to the hearing”.
The affidavit of Ms Ogge exhibits 13 pieces of correspondence between her firm and the ICL spanning an approximate five week period between 29 June 2009 and 5 August 2009.
Within the body of her affidavit are included descriptions of conversations (as distinct from quotations) said to have occurred between the solicitor and the ICL. The descriptions, insofar as they purport to accurately represent an account of the conversations, are not accepted by the ICL.
The correspondence earlier referred to appears to have culminated (relevant to the instant application) in a letter dated 30 July 2009, which is Exhibit RCO6 to the affidavit of Ms Ogge.
Given that this letter appears to form the foundation for the current application, it is important to quote it at some length. Included in that letter is the following:-
“Our client’s concern, and we share it, is that you appear to have formed an opinion already as to whether the children are at risk of unacceptable harm. The basis for the view you have made up your mind on this topic arises from two statements you made:
a. Outside the court to the writer you said “I am as certain as I can be that there is nothing in this case that would lead me to believe the allegations in this case are true”;
b. Before His Honour you made the submission that there was compelling evidence that the children were not at unacceptable risk of harm.
The “compelling” evidence to which you allude was information that you had received on subpoena from various parties, but in particular the Queensland Police and Dr [H].
In truth the only relevant evidence is from the Queensland Police who appear to have formed an adverse view about the credibility of our client. It is submitted that although it may be relevant that another agency or agencies have formed views about this case, their views are not evidence for or against the case presented by our client. It is only relevant circumstantially. Dr [H] does not provide any relevant evidence simply because he has not examined the children, and his evidence is not expert evidence in the true sense because he has not himself examined the children. Rather, his views are expressed below. In its terms his evidence is only hear-say. The general rule that experts may give hear-say evidence is only triggered if he is using his expertise to provide an opinion. In this case because he did not examine the children, his evidence is not probative of the relevant issue. He is not a primary expert witness who can give original evidence. He only passes on information he has obtained by speaking to the police and to the DoChs. His evidence, in our submission has not probative worth.”
Although not made clear in submissions, it seems clear that the reference to “outside court” is a reference to the hearing which took place before me on 17 July, at which orders were made by consent. I will refer to this in more detail below.
It should be mentioned at this point, however, that, given that consent orders were proposed at that hearing and given that, in submitting for those orders, the ICL submitted that they “were a compromise”, the conversation alleged to have occurred is redolent of having occurred during “settlement negotiations” as that expression is used in s 131 of the Evidence Act 1995. But, the ICL was represented by Senior Counsel before me and the point was not taken.
The letter from the solicitor of 30 July then goes on to quote Dr H. The quoted extract refers to the fact that the doctor had spoken to a police officer from the Child Protection Investigation Unit. The doctor refers to the fact there “had been five interviews with the child and no disclosures and no suspicions that she has been penetrated or abused”.
Doctor H also spoke with Ms E from the Department of Child Safety. He says she “also reports lost of interviews, numerous allegations and that the case had been discussed at SCAN”. The doctor reports that the Department had “no concerns” with the child “having been abused in any way and there has been no indication from the school of behavioural concerns or sexualised behaviour:”
The quoted passage from Dr H’s report goes on to say:
“I also said to [the mother] that ongoing harm can come to the children if she were to pursue her desire to have [the younger child] examined by other paediatricians and that she can also come to harm by being constantly reminded of the events or by presenting on numerous occasions to the CPIU or DoChS”.
Having quoted from the report of Dr H as just described, the solicitor’s letter goes on to make a number of assertions against the Independent Children's Lawyer. Central to the instant application would appear to be this assertion:-
“In this case there are competing accounts, one from Dr [H] which is really hearsay on hearsay, and of no probative weight, the police who have formed whatever views they have formed, but partly because they say [the child] has not complained to them, as against the GP and [the family consultant] who had both heard accounts of unacceptable touching from the father, in evidence to which they refer in their respective reports”.
The letter then continues:-
“To form the view about unacceptable risk when there is competing evidence at this early stage is to show bias, and in our view that decision making process is not in accordance with the guidelines set up by the Family Court for Independent Children's Lawyers.
In respect to those guidelines (and it would be plainly the case on common sense grounds) the ICL is to remain independent, objective and focussed on promoting the child’s best interests in all dealings throughout the proceedings”.
The Guidelines referred to are the “Guidelines for Independent Children’s Lawyers” published by this court on 6 December, 2007.
The letter under discussion then quotes the Guidelines in part, specifically Item 6.8 thereof. The letter goes on to assert that the ICL:
“… impliedly reject[s] the direct evidence from the children whose accounts to Mr [P] and to their general practitioner must be led through each of these witnesses, as the children themselves cannot give evidence. You also reject the evidence of the child’s psychologist who has been treating the children”.
The letter concludes with a statement which appears to me to contain the gravamen of the complaints against the ICL and to lie at the heart of the instant application:
“To accept the evidence of these third party agencies above the evidence of your own clients indicates to this writer that a continuation of your appointment would be adverse to the best interests of the children, and we respectfully request that you re-consider continuing to act as the children’s lawyer.
This central assertion is expanded upon in the passage which follows it:
“By way of comparison if you acted for someone in a criminal case, and made submissions to a court that you do not believe your own client, such a submission would be tantamount to professional misconduct.
Although the facts here do not go that far, you will appreciate that the circumstances here militate against you continuing to act”.
The written submissions handed up on behalf of the wife at the hearing before me might be seen to be similar in theme, but also seem to take the matter further. For example, it is there submitted:-
“It therefore appears that both [children] had disclosed allegations that would ordinarily be of concern to [the Department of Child Safety], and the police, but that in the case of the [younger child], a child of only six years of age, her “credibility” had been destroyed, and in the case of [the elder child], at now ten years of age, his allegations are either “sketchy” or the statements he has made have been tainted by the mother inducing him to say things, by her wrongly informing him that [the younger child] had seen the “touching”. In respect of this last assertion, it defies belief why [the older child] could not have been reinterviewed. This was done, and it may have been done, the response from the authorities is that the [older child] cannot be sketchy”.
The written submissions continue at another point:-
“[The Independent Children's Lawyer] appears to accept the perspective of the police and DoChs, both agencies not accepting the reliability of the mother. However, both agencies have heard disturbing reports from the children about the same matters reported on by [the family consultant]. Dr [H] … seems to take the approach of [the Independent Children's Lawyer]. He refused to examine the children because of the matters reported to him by the police. Dr [H] therefore does not help because he has not formed his own views about the children’s evidence, nor has he examined them…”
The submission then goes on to say “to give any weight to such evidence is dangerous and the ICL should not be considering the accounts of unreliable witnesses”.
Before turning to consider the relevant principles and the arguments advanced, I should mention that both the mother and the ICL relied upon the report of the family consultant, Mr P.
The reference to “competing accounts” in the passage quoted above appears to posit Mr P as (a) having a view that the children have been abused and (b) as, therefore, having a different view from the police and Dr H.
That analysis appears to be confirmed by the written submissions made on behalf of the mother in which it is contended “in summary Mr [P] is as perplexed as any objective commentator to this case would be perplexed, as to why children would form the view of young children like these that their accounts of “touching” lacks credibility…”..
Given the inclusion of these matters in submissions on this application, it would appear necessary to state three (trite) propositions. First, the substantive proceedings are not about whether abuse occurred or not, they are about the best interests of two young children. Secondly, a determination about matters such as those referred to are for the trial judge after the evidence has been properly examined, tested and analysed at a trial. Thirdly, the “views” of Dr H, Mr P or any other witness whose evidence is deemed relevant and otherwise admissible are but pieces of the puzzle which ultimately the trial judge must solve in the best interests of the children.
No doubt Mr P’s opinions (among others) will be the subject of extensive examination at the trial. Obviously, given that a trial will very shortly take place, I intend to be particularly cautious about commenting on the merits, or otherwise, of any particular evidence. Within the context of deciding the instant application, however, it is important (and, in light of the submissions made on behalf of the mother, necessary) to record that it should not be assumed that I accept that Mr P’s report should be read in the way that the wife asserts, or that his opinion is that which the wife attributes to him.
As an example of the potential importance of that issue to this application, a submission made on behalf of the mother is: “if Mr [P’s] point of view was compared to the ICL, he expresses some surprise in his report that the police would form a view about the credibility of the children in this case, and accepts the accounts they have given to him” [emphasis added]..
Given what appears to be the central place that this occupies in the submissions on behalf of the mother, it seems to me appropriate to indicate solely for the purposes of this application (and I emphasise, solely for the purposes of this application) that I do not, having read Mr P’s report, accept that he necessarily “accepts the accounts [the children] have given to him” as truth of their contents.
It is certainly true that the family consultant expresses “some surprise… that the police would form [a] view about the credibility of the children”. However, my reading of Mr P’s report is that this is a factor which might have other resonance for the central issues in these proceedings distinct from those which are asserted on behalf of the mother.

Applicable Principles and the Position of an Independent Children’s Lawyer

It was said by the Full Court as long ago as 1980 that:-
“It is the duty of counsel representing the child to place before the court the wishes of the child (see Boseley v Lyons (1978) 4 FamLN 17; [1978] FLC 90-423) but in my opinion, unlike counsel appearing for a party who is sui juris and who must put his client’s instructions and argue his client’s case, counsel appointed to represent a child under the provisions of s.65 is as much charged with the duty of making submissions and conducting his case as to reveal those matters which are in the best interests of the child as is the trial judge to seek them out among the evidence and weigh them up. To this extent therefore, I think that is was proper for counsel for the child, notwithstanding his expressed wish to the contrary, to submit that it is not in his best interests that his wishes be acceded to by the court”.
(In the Marriage of Wotherspoon & Cooper (1980) 7 FamLR 71; [1981] FLC 91-029 at FLC 76, 282)
Some ten years after the decision of the Full Court in Wotherspoon & Cooper, another Full Court in In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191 made a similar point, emphasising that an ICL (then a “separate representative”) is not bound to make submissions on the instructions of the child. The court said (at FLC 78, 259):-
“…it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the children (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must of necessity, form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. 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 duties to act impartially but, if though 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…”
In In the Marriage of Harris [1977] FLC 90-276 at 76, 476, Fogarty J said this:-
“It appears to me that [the Independent Children's Lawyer] occupies the position of an advocate appearing for a particular party in the litigation although it is the role of advocacy having about it certain unusual features including: (i) that he is not appointed by the party whom he represents; (ii) that he may not be removed by that person; and (iii) that he does not necessarily advance what the client wants but what in his view is in the best interest of that “client” and to that extent exercises an independent judgment quite out of character with the position ordinarily occupied by an advocate”.
In Pagliarella (1993) 16 FamLR 688, Hannon J was asked to discharge the Independent Children's Lawyer because she “…reached a conclusion at a very early stage and without being in possession of all the evidence and that she lost her “objectivity” and therefore she could not represent N’s interests”.

In rejecting that conclusion, His Honour held (at 695):-
“It is true that [the Independent Children's Lawyer] states in her affidavit that she concluded that the husband had continued to pressure [the child] and that her wishes were as a result of that pressure and the manipulation of the husband and it is that conclusion with which counsel for [the child] and for the husband join issue with her.
In my opinion [the Independent Children's Lawyer] was entitled to reach that conclusion. The substantive proceedings being for a discharge of an earlier order, it was appropriate for [the Independent Children's Lawyer] to have regard to the reasons of the court for the making of that order. In fact she would not have been able to properly carry out her function of investigating the file without reading those reasons. Having done so, she was able to identify the issue or issues which would be of significance in the present substantive proceedings. The next step was to consider whether the findings of Treyvaud J as to the part played by the husband in the formulation of N’s wishes were still applicable. In doing so she properly had regard to the material at her disposal which included the interviews she had with N and with the husband and the wife…”
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”.
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”.
With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
It is important to understand that, although an ICL is in a unique position vis-à-vis their “client” by reason of that “client” being a child, and a child who is the subject of competing contentions by his or her parents, the ICL nevertheless has each and all of the same professional obligations owed to the court that any legal practitioner has.
Further, those obligations might be seen to be particularly clear given that their professional judgment should not, unlike a legal practitioner acting for a party, be potentially influenced by, or potentially clouded by, any competing requirement to act only in accordance with a client’s instructions.
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).
In this case, this court’s Guidelines for Independent Children’s Lawyers are quoted at length in the letter from the mother’s solicitors earlier referred to, and in the written submissions handed up at the hearing on her behalf. Included in neither is the following which should be seen as important to the issues in this case:
“2. Introduction
The role of the ICL is unique. The lawyer appointed to represent and promote the best interests of the child in family law proceedings has special responsibilities.
…
The ICL is expected to use his/her professional judgment and skill, subject to any directions or orders of the court. The availability of funding is a practical constraint.
The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities” [emphasis added].”
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.
The ICL (and counsel appearing for the ICL) should be no less courageous, and no less firm, and no less cogent, in advocating for a result or findings – based on a careful analysis of evidence properly before the court – than any other advocate or legal practitioner.
Of course, as earlier observed, the ICL’s obligations differ from those of a legal practitioner representing a party; the former is not constrained by instructions; the latter is. The ICL’s clear obligations are likely to bring them into conflict with a party whose views or case run contrary to that which is asserted by the ICL. But, this is not a circumstance disqualifying an ICL from pursuing, and pursuing strongly, what he or she considers to be an outcome in the children’s best interests. In fact, frequently, the opposite is the case: the views or attitudes held by a parent can be the very reason why an ICL argues directly contrary to them.
The obligations of the Independent Children’s Lawyer are likely to include the garnering of evidence, and the pursuit of evidence, and the careful presentation of evidence, which might directly contradict a view or views which the ICL might themselves have. An ICL’s views or assessment of a case do not at all derogate from the obligation to obtain relevant evidence and the proper presentation of that evidence. To do otherwise would be to prejudge the case. Not only is that an abdication of proper professional responsibilities, but it also purports to impermissibly usurp the function of the court.
But, equally, if the obligation to obtain, and cogently present, all reasonably available evidence relevant to the court’s inquiry into the children’s best interests has been discharged, no part of the ICL’s functions prevents the ICL from presenting a “view” that prefers some evidence over other evidence. There is nothing remarkable about an ICL submitting that some reliable evidence should be preferred over other reliable evidence, nor from submitting that some evidence is reliable and other evidence is not reliable, provided, again, that the submissions have a proper foundation. Indeed, it is frequently the duty of the ICL (and his or her counsel) to do precisely that.
Although a trite proposition, the submissions in this case probably necessitate it being emphasised that neither an ICL nor an ICL’s view decide a case; a judge does. Submissions by ICLs – particularly if properly based on evidence independent of the parties’ conflict, including in particular, expert evidence – are likely to be accorded appropriate respect. But their views of the case or the evidence in the case can be, and are, rejected by courts.
Before passing to the submissions in this case, it is important to mention one final matter.
As both the Guidelines and decisions of this Court recognise, an important aspect of the proper exercise of responsibilities by an ICL is to act as an “honest broker”, often between highly-conflicted parties each of whom raise contentions based, presumably, on their own perceptions as to the best interests of their children. That role can involve ICLs playing an active part in having parties attempt to resolve their dispute.
As an aspect of that (which in my view has real resonance for the facts of this case) it is highly likely that things will be said by ICLs which challenge the perceptions, views or, sometimes, the fundamental parenting philosophies, of parents. It goes without saying that an ICL must at all times be conscious of the boundaries of their role. Equally, however, a wholly benign approach to that important aspect of an ICL’s role might be to deprive the parties of the benefit of knowledge or experience.
What must be understood is that what is (or should be) being shared, is not a view of a party’s parenting per se, because that is no part of the ICL’s brief, but, rather, a view of what the evidence reveals about issues relevant to the determination of best interests by a court charged with that task (and, perhaps, a view as to what a court might make of that evidence).
Equally, it is fundamentally important to understand that no party is bound to accept any view expressed by an ICL – a party is, of course, perfectly entitled to reject any view out of hand. But an essential part of the role may well be to offer views in the manner just described, if such views are considered to be in the best interests of the particular children concerned.
Obviously enough, that can put an ICL in a precarious position and the degree to which an ICL does, or does not, offer views in the proper context just described requires great care and is very much a matter of professional judgment to be exercised in each individual case. But, again, views or suggestions offered in the context just described by no means necessarily point to an ICL failing to act in accordance with their professional responsibilities or to exhibit partiality warranting their removal. Again, the opposite can be true: it can be seen as part of their duties and responsibilities.
Finally, the matters just discussed, in so far as they are relevant to the obligations of an ICL in presenting proposals or arguments to the court, apply just as much to interim hearings as they do at trials. Indeed, in some respects, they apply more so. For example, an ICL might have a “view” properly founded on the evidence but, until that evidence is tested at a trial, might contend, in the interests of minimising risk, for time with a parent to be supervised until that trial.

The Facts of this Case and Submissions

The mother’s position arises essentially out of the proceedings before me on 17^th July 2009 and their aftermath.
Those proceedings were in respect of an application by the father for interim parenting orders that would have seen him spend unsupervised time with the children. The application for interim orders was returned on a Magellan directions day on which there were a very large number of matters before the court.
Axiomatically, then, the proceedings were of a curtailed nature, significantly restrictive of the capacity to make factual findings of the type discussed in the decisions of the Full Court in C and C (1995) 20 FamLR 24 and, in the Act as amended by the Reform Act, in Goode and Goode (2006) 36 FamLR 422.
The letter of 30 July suggesting that the ICL should remove herself from the case was, then, sent less than a fortnight after that hearing.
A lengthy passage from the ICL’s opening on that day is included in the written submissions on behalf of the mother. Although quoted at length, it is quoted inaccurately. The inaccuracy has the potential to be important in circumstances where (a) it is asserted on behalf of the mother that the Independent Children’s Lawyer is partial and (b) where another omission from the evidence was revealed during the hearing (to which more detailed reference will later be made).
The quotation in the mother’s written submissions is, relevantly, as follows:-
“…The matter is typical of many matters that appears on the Magellan list, although, unusually, because of the delay between the time of filing and time when that has elapsed to get into this point today, there’s quite compelling evidence which would suggest that you would be able to make a finding at this point that there’s no unacceptable risk of the children having unsupervised time with their father. I understand that this is an interim matter and that you have a large list and I have drafted some orders that are a compromise between that position and the one advocated by the mother, and I’d seek leave if possible to hand those up”.
The transcript reveals that passage to be as follows:-
“… The matter is typical of many matters that appears in the Magellan list, although unusually, because of delay between the time of filing and the time that has elapsed to get you to this point today, there’s quite compelling evidence before the court which would suggest that you would be able to make a finding at this point that there is no unacceptable risk to the children having unsupervised time with their father. I understand that that’s the application that [counsel for the father] would make today. I understand that this is an interim matter and that you have a large list I’ve drafted some orders that are a compromise between that position and the one advocated by the mother, and I’d seek leave if possible to hand those up?”[bold representing the omitted passage]
This matter – apparently of inadvertence – would, perhaps, be of less significance, but for another omission from the evidence put before the court on behalf of the mother.
In a letter from the mother’s solicitors the mother raised an issue as to lack of supervision occurring on the children’s visit with the father immediately following the orders. The ICL’s reaction to that concern is cited as a breach of her responsibilities. It was submitted:
“There are other arrangements that can take place where the court can be more satisfied with the arrangements with the children, and it’s not open for the ICL to abdicate her responsibility entirely.”

An allegation made against any legal practitioner that they have “abdicate[d] their responsibilities entirely” is, in my view at least, a very serious one; it strikes at the heart of professional integrity. The same allegation made against an ICL is all the more serious given that practitioner’s particular responsibilities to children. No such allegation should ever be made unless, upon instructions, there is a firm evidentiary foundation for making it.
I enquired of the firm evidentiary foundation in this case. It was said that, in circumstances where serious concerns were raised in a letter about the safety of children resulting from a failure to properly supervise, the ICL had failed to respond to the letter setting out those concerns.
As earlier indicated 13 separate pieces of correspondence over an approximate five-week period had been exhibited to the affidavit of Ms Ogge. No letter from the ICL addressing those serious concerns was exhibited.
When Senior Counsel for the ICL commenced her case, she called for a letter sent by the ICL to the mother’s solicitors. It was said by the mother’s solicitor that the letter was not received. The letter was, however, received by the father’s solicitors. It was produced by them. (In accordance with proper practice, the father’s solicitors had been copied in to correspondence passing between the ICL and the mother’s solicitors).
Faced with this, the mother’s solicitor called for a copy of the facsimile transmission sheet. I made it clear to the solicitor for the mother that doing so was, to my mind, a direct challenge to the honesty of the ICL – it was, plainly, a suggestion that the document had never been sent to the solicitors for the mother.
The facsimile sheet was produced. The solicitor for the mother responded by saying that the letter was not on his file.
Contrary to the central assertion founding the “abdication of responsibility” and the attack on the ICL’s honesty, the letter was plainly sent to the mother’s solicitors.
It is very unfortunate that this particular letter – which answered a central allegation against the ICL and an allegation directed to her professional integrity – was neither an exhibit to the affidavit of Ms Ogge, or, it seems, on the solicitor’s file.
It is particularly unfortunate given the other omission from the quoted transcript, earlier referred to.
The solicitor for the mother “withdrew” this specific assertion against the ICL.
The foundation for the application is, as best as can be discerned, founded, I think, on two bases. First are the comments allegedly made by the Independent Children's Lawyer referred to in the letter from the mother’s solicitors on 30 July, 2009 earlier referred to. Secondly, the argument appears to be that the ICL has preferred one part of the evidence over another part of the evidence; has ignored “evidence” from the children themselves (i.e. what the children have allegedly said) and has ignored evidence from the family consultant, whose evidence (it is implicitly submitted) should be treated, on a prima facie basis at an interim hearing, as being particularly important.
It is said in the written submissions: “to give any weight to [the evidence relied upon by the ICL] is dangerous and the ICL should not be considering the accounts of unreliable witnesses.”
The asserted ramifications of the alleged lack of independence and objectivity are referred to in the written submissions on behalf of the mother. For example: “… in a case like this the supervision arrangements must be monitored by an objective and impartial [ICL]”

(a) Reliance Upon Particular Evidence

The submissions relied upon in this respect can be seen from the extracts from the letter of 30 July quoted earlier in these reasons. Those submissions were amplified in the written and oral submissions before me. The former include the following:
“At this stage, it should be noted that the police in Queensland are hampered by rules of evidence that do not apply in the Family Court. For instance, the onus of proof in criminal prosecutions is “beyond reasonable doubt”, and juries are still warned on the danger of acting on the uncorroborated evidence of minors”.
[As to the last part of this submission, the correct position is governed by s.632(2) Criminal Code, introduced, over ten years ago, in the Criminal Law Amendment Act of 1997 (No. 3 of 1997) section 113]
In the Family Court, to protect children, the evidence which applied to them is not given by them. It is given by others, and so some of the source of the evidence that applies in this case must come from the mother. It is a question of weight to be given to her evidence at the end of the day, as to whether her account of the children’s evidence is to be accepted. However, if one starts with the proposition that the evidence which is elicited from the children comes through other sources, and weight needs to be attached to the various sources of evidence, it is not appropriate to look for corroboration of the children’s accounts, and so the question must be asked “to whom have the children confided in, and who (sic) reliable are they?...
The submission then goes on: “although it has to be accepted that the ICL is not the legal representative of the children in this case, she is under a statutory duty to communicate the wishes of the children to the court under s.68L of the Family Law Act”.
The argument concludes as follows:-
“Hypothetical questions come to mind in circumstances where, for example, in a case like this, the ICL was informed by the children that they were making up the allegations they made, but nevertheless did not want to see their father.
In criminal cases, the dilemma is faced for practitioners where someone confesses to a crime, and the practitioner has to decide whether to withdraw or to continue to act, if instructed to contest the allegation.
It is submitted here that faced with that dilemma, the better course for the ICL would be to withdraw, because he or she could not communicate to the court the instructions of the child, and at the same time stand by and not become a witness to what the children have stated, but unless apprised of direct evidence from the children that would compromise their statutory obligations, of which there is no evidence in this case, it is submitted that her bounding duty is to not form a view about the evidence and do what [the family consultant] has done, and leave that to the court, and act as the honest broker for the parties without taking sides in a case where the evidence is disputed, but which is not compelling against the proposition that the children face an unacceptable risk of harm.”
The argument is answered, in my view, by reference to the principles enunciated earlier and by reference to how the ICL responded when the matter was raised with her in correspondence.
In that letter in response (Exhibit RCO 7 to Ms Ogge’s affidavit), the ICL said, on 31 July, (14 days after the hearing before me):
“Your letter sets out your position. With respect it does not set out the ICL’s position or the submissions made to the Court and if there is a dispute about this then we suggest that you obtain a copy of the transcript.
…
The ICL’s view was based on the evidence as a whole. This includes, but is not limited to the material from [Queensland Police Service], Dr [H], your client’s own version of events, the nature of the allegations, the report and views of [the family consultant] (emphasis in original).
The ICL accepts that all of the evidence will be tested at the trial and the issues that you raise in your letter can be put to the Court at the hearing and will be the subject of cross-examination. …”
In my view, that accurately sets out not only the ICL’s proper responsibilities as earlier referred to, but accurately sets out precisely what the ICL has done in this case.
Further, the submissions made on behalf of the mother in respect of the evidence rest upon a number of incorrect premises, not only in respect of the proper role of the ICL in gathering and presenting evidence, but in respect of the evidence itself. A good example is provided by the submissions made in respect of Dr H’s evidence.
In the written submissions on behalf of the mother it is submitted that:
“… Dr [H], whose evidence is referred to in the affidavit handed up by leave by [the ICL] on 17 July, 2009, seems to take the approach of the [ICL]. He refused to examine the children because of matters reported to him by the police. Dr [H] therefore does not help because he has not formed his own views about the children’s evidence, nor has he examined them. It is submitted that Dr [H] does not assist this case one way or another, and yet, [the ICL] handed up his affidavit last week when she made a submission that there was compelling evidence for a court to find that the children were not at unacceptable risk of harm
To give account to such evidence is dangerous and the ICL should not be considering the accounts of unreliable witnesses.”
This submission in my view distorts not only the evidence of Dr H (and also calls into question his professional judgment about the rectitude of performing an invasive examination on a young child) but also misunderstands fundamentally the nature of the inquiry – and, particularly, the nature of the inquiry at an interim hearing.
Whether or not abuse occurred or did not occur is, as has been made plain by decisions of the High Court and the Full Court of this Court, not the issue in these proceedings. The issue is the best interests of the children. As the Full Court of this Court recently made clear in Goode & Goode that remains true in the post-Reform Act statutory environment, albeit that interim proceedings involve a significantly truncated inquiry.
Whatever might be said about Dr H’s evidence on the issue of whether abuse may or may not have occurred (and, indeed, whether it is relevant to that issue or not), the fact is, the doctor’s evidence is, at an interim hearing (and untested though it yet is) compelling.
It is compelling and properly described as such for a simple reason: a qualified paediatrician working in conjunction with a statutory agency (in this case the Department of Child Safety) has come to a professional conclusion, based on the data which he as an expert paediatrician considers relevant that he “was not going to offer a genital examination”.
It is compelling, and properly described as such, because a person with that expertise and training, working with a State agency bound by statutory duties toward children, informed by such matters as he as an expert paediatrician considers sufficiently relevant to enable him to express an opinion, is prepared to opine that:
“…ongoing harm can come to the children if [the mother] were to pursue her desire to have [the younger child] examined by other paediatricians and that she can also come to harm by being constantly reminded of the events or presenting on numerous occasions to the CPIU or DoChs”
Reference to s. 60CC of the Act reveals a number of respects in which such evidence might be relevant to a decision about the best interests of young children.
What was omitted from the submissions, but which also needs to be pointed out, is that, in putting that evidence before the court, the ICL also put before the court the evidence of Dr H’s (no less important) opinion that “if [the mother] believes that her child has been abused then she needs to be protective of her children”.
It is also submitted on behalf of the mother that “although it has to be accepted that the ICL is not the legal representative of the children in this case, she is under a statutory duty to communicate the wishes of the children to the court under s. 68L of the Family Law Act”.
As earlier referred to, the submissions made on behalf of the mother also appear to confuse the role of the ICL and that of the Court by referring to the ICL “accepting” and “rejecting” evidence. Not only is this, of course, not the role of the ICL, but the submission also, in my view, gives an inaccurate picture of what the Independent Children's Lawyer has done in this case.
The fact is the Independent Children's Lawyer did put relevant evidence before the court; she put the report by the family consultant before the court; she put before the court the report of Dr H, the material from the police and the material from the Department of Child Safety. Each (whatever might be their contents) are important components of this case (and, one might think, of any case involving allegations of abuse of a child). There should be no doubt that doing each is clearly appropriate.
Further, missing from the submissions made on behalf of the mother is a crucial element: the court is not bound to accept the views of an ICL either in whole or in part, and often does not do so.
It is by no means uncommon that ICLs are put in the position of putting evidence before the court that indicates evidence from the mouths of the children (whether in respect of allegations of abuse, their wishes or otherwise) which are, ultimately, argued against (and often strongly argued against) by reason of the ICL’s duty to act in the best interests of the children. Indeed, as has been pointed out, that is consistent with the ICL’s duty.
The so called “hypothetical” posed by the written submissions on behalf of the mother earlier referred to is, in fact, not a dilemma at all. Indeed, it is a common occurrence. It is precisely those sorts of occurrences that are embodied by the statement in the guidelines that “the way in which the ICL acts may not always meet with the approval of the parties or the child…”.
It is no accident that the guidelines go on to say that “…this does not mean that the ICL has failed in his/her professional responsibilities”; they do so because, as here, the two things are sometimes confused. The corollary is equally true, not meeting the approval of the parties or the child can mean that the Independent Children's Lawyer is precisely filling those independent professional responsibilities required of him or her.
In my opinion, the submissions made on behalf of the mother conflate the ICL’s obligation to put what the children say before the court (which has been carried out in this case) with acting in accordance with what the children say. The latter is no part of the responsibilities of the Independent Children's Lawyer, save where the Independent Children's Lawyer, by the application of proper professional judgment, comes to the conclusion that doing so is in the best interests of the particular children in their particular circumstances.
Nothing at all in the evidence before me, or in the submissions made on behalf of the mother, persuades me that, in respect of this issue, the ICL has, in any way, failed in her professional obligations nor done anything, or failed to do anything, which would warrant her removal on that basis.

(b) Alleged Conversations and Actions in and About the Hearing

It is necessary to piece together the conversations said to have occurred indicative of either partiality or an abdication of proper professional responsibilities.
Reference has already been made to the assertion made in the letter from the mother’s solicitors dated 30 July that “[o]utside the court to the writer you said ‘I am as certain as I can be that there is nothing in this case that would lead me to believe the allegations in this case are true.’” The conversation in quotes is not sworn to in the body of Ms Ogge’s affidavit. As earlier mentioned, it seems abundantly clear that the conversation is alleged to have taken place “outside court” on 17 July.
The affidavit of Ms Ogge deposes to a telephone conversation on an unspecified date but occurring “in response to my letter … on 3 July 2009.” Ms Ogge deposes that the ICL said to her that her [the ICL’s] proposals [contained in the letter of 3 July] “were made following her ‘extensive reading’ on child sexual abuse and her twenty (20) odd years of experience as well as her review of the Family Report …”. (The conversation is not deposed to in the form of direct speech. No words are attributed to the participants other than the words “extensive reading”).
The affidavit goes on to describe (as distinct from quote) a conversation deposed to as: “The ICL told me she believes that the mother is emotionally abusing the children by the numerous Police and medical interviews and that the father is not a risk to the children”. It is not known if that was the totality of the conversation or the context in which the statements were made. The ICL has not sworn an affidavit in these proceedings. The Guidelines provide: “It is not the role of the ICL to: … become a witness in the proceedings.”
The correspondence annexed to that affidavit includes a letter from the ICL dated 29 June, 2009. It says, among other things that “Having read the report [of the Family Consultant] we propose…”. There is then proposed orders for unsupervised time between the father and the children. Also included were proposals for various injunctions, including an order injuncting the parties from “taking the children for interview by a Departmental Officer at any Department of Communities (Child Safety) Office or by any police officer for the purpose of assessments examination or counselling related to the alleged sexual abuse of the children, unless leave has been given by the court to participate in the interview”.
Although no substantive intervening letter in response is included in the letters exhibited to the affidavit, a letter from the ICL to the mother’s solicitors of 3 July, proposes supervised time at a contact centre. That letter goes on to say: “Please provide us with these instructions prior to 17 July 2009 when this matter is to be mentioned before Justice Murphy so that we can attempt to negotiate consent orders for time pending the hearing of your client’s application”
No other correspondence prior to the hearing is exhibited to the affidavit.
Reference to what is (accurately) recorded in the transcript in the proceedings before me that day is referred to at paragraph 68 of these reasons. So, too, included earlier in these reasons is what is alleged to have been said that day by the ICL to the mother’s solicitor.
The allegations made against the ICL need to be seen and appreciated against the background just described. It is also necessary to reiterate in this context the statements made earlier in these reasons relating to the role of an ICL in settlement negotiations and in the role of “honest broker”.
It is, in my view, an unsurprising circumstance that, in the course of attempting to reach a “compromise” agreement between the parties - particularly one that would apply on an interim basis pending trial – an ICL might provide a “view” about her assessment of a likely outcome after a trial on the evidence then available.
So, too, is there nothing per se wrong, in my view, with an Independent Children’s Lawyer indicating that “her proposals” were made following her “extensive reading” on child sexual abuse “in her 20-odd years of experience” as well as a review of the family report. Assuming that the description of the conversation is accurate as to its words and tenor, in my view there is nothing inappropriate in an ICL expressing those views in the context described.
As I said earlier, the role of “honest broker”, or taking an active role in meaningful settlement negotiations, involves questions of judgment dictated by the particular circumstances and the particular evidence available. Plainly enough, great care needs to be exercised by ICLs in the professional judgments made about whether to express “views”, “comments” or “opinions” in the circumstances of a particular case. The highly charged circumstances surrounding parenting cases of the type needing an ICL render that axiomatic. But in this case, I can see nothing wrong with an ICL making such comments.
Equally, it is unsurprising that if, as alleged, statements were made that “the mother is emotionally abusing the children” or that “the father is not a risk to the children”, questions about partiality may be raised by one or other of the parties. For that reason alone care should attend the use of such statements. But, again, any such statements (which, in any event, need to be seen in their context and by relevance to their tenor) may also be indicative of an ICL performing properly his or her duties.
In my view, the ICL’s role as an “honest broker” or “settlement negotiator” must, in appropriate circumstances, and based on a proper evidentiary foundation, readily encompass the ICL challenging views held by a particular party if considered appropriate.
Be those things as they may, in this case there are, in my opinion, far more cogent considerations pointing against the assertion of partiality contended for. They include:
§ Whatever might have been the view/s held or expressed by the ICL, at the hearing on 17^th July, she advocated for a position wholly consistent with meeting a risk asserted by the mother, but denied by the father;
§ It was the ICL who offered proposals for supervised time;
§ Counsel for the father made it clear that his client “did not accept any supervised time”; (But, given the (implicit) acceptance of the significantly curtailed nature of interim proceedings, consented to those orders). Yet, the ICL contended for supervised time;
§ Contrary to what is submitted on behalf of the mother, the ICL did not contend that there was no unacceptable risk, or, importantly, for a result that would flow from such a submission. The opposite result was contended for;
§ A position that there was “quite compelling evidence … which would suggest there’s no unacceptable risk of the children having unsupervised time with their father” might be seen to accord with a position similar to that contended on behalf of the father. But, it was also said that this represented the father’s position and the ICL argued for a “compromise” position contrary to the father’s position;
§ The conversations relied upon by the mother as showing partiality occurred prior to the ICL making submissions contrary to the position contended for by the father;
In addition, it needs to be noted that, despite conversations said to have occurred before the 17 July hearing, and which are now alleged to be indicative of partiality or abdication of responsibilities by the ICL, no such concerns were raised in any correspondence in evidence before me prior to the 17 July hearing. Further, no such suggestion was made, nor any submission made, at that hearing (when the mother was represented by her current solicitors).
Of course, it also needs to be observed that the mother consented to the orders made on 17 July.
I am not persuaded that the evidence reveals any facts or circumstances which would give rise to a reasonable concern on the part of the Court that the Independent Children’s Lawyer has either failed to properly discharge her obligations and, in particular, that her objectivity and impartiality is compromised in the manner suggested by the mother.

Other Considerations

The mother’s case, put at its highest, is that the statements attributed to the ICL are perceived by her as indications of bias or impartiality and her feelings and perceptions, as the mother of these children, are relevant to the issue of whether the ICL should be allowed to continue to act. It might be argued then, that, when those factors are added to the considerations, I should have concerns about the ICL continuing to act.

There are, in my view, good reasons for finding that considerations such as those, individual to a parent, ought not, in the usual course, be taken into account. By definition, ICLs are appointed, in the usual course, only in difficult cases where a number of factors individual to the particular parents are likely to impinge upon their parenting. (See Re K (1994) 17 FamLR 537).
Applications to remove ICLs are likely to abound if circumstances personal to a particular parent or parents were relevant, in the usual course, to a decision to remove. That would increase the “perilous position” of ICLs referred to by Holden CJ in Lloyd, above, “…facing …application[s] that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties”. That is neither in the public interest nor in the interests of children the subject of the appointments.
Even if I was persuaded (which I am not) that the facts and circumstances outlined by the mother raised concerns about whether the ICL should remain in the case, there are a number of counter-veiling considerations that need to be taken into account before this court would, some eight weeks prior to trial, discharge an ICL who is familiar with the case, has undertaken a significant amount of work including liaising with a family consultant, and who has engaged in communication between the parties.
As Holden CJ pointed our in Lloyd above there are “public policy” considerations relevant to the question. Of course, in circumstances where I was of the view that the position of the ICL was seriously compromised for partiality, lack of objectivity or failure to properly carry out the onerous obligations associated with that office, a number of considerations, including, most importantly, the best interests of the children, would result in my requiring significant persuasion that the Independent Children’s Lawyer should not be removed.
Equally, where, as here, there is little foundation for any such assertion, a number of other considerations are directly relevant to not removing the ICL. Public policy considerations relating to funding and the use of public funds were referred to Holden CJ, together with the additional financial ramifications of appointing a new ICL when the existing ICL has carried out significant work.
Here, at the time the application was heard, there were about 8 weeks until the trial of this action is to be held. There is potential for delay while a new ICL is appointed and properly appraises him or herself of all of the facts and circumstances relevant to that appointment and the representation of these two children.
Whatever factual disputes and issues might surround the future co-parenting of these two children, what is clear beyond argument is that these two children need the parenting issues in respect of them to be resolved as soon as possible. Anything which jeopardises that occurring, should, in my view, be avoided unless there was a very good reason to order otherwise.
Considerations of that type point, in any event, strongly against removal of the ICL.
In all of the circumstances the application for the mother should be dismissed.
I order accordingly.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 7 September 2009