KOCAK & FAHRI

[2020] FamCA 652

FAMILY COURT OF AUSTRALIA

KOCAK & FAHRI [2020] FamCA 652

FAMILY LAW – CHILDREN – best interests – where the mother seeks the discharge of interim parenting orders – where the mothers case was that there had been a disproportionate and unfair focus on her mental health – where the mother failed to comply with orders made by consent that she attend upon an independent psychologist nominated by the Independent Children’s Lawyer for  review of her mental health including whether she presented any risk to the child – where the child lives with the father and spends supervised time with the mother – where there is insufficient evidence to vary the parenting arrangements – where the mother’s application is dismissed

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – where the mother seeks orders for the removal of the Independent Children’s Lawyer – where the mother alleges that the Independent Children’s Lawyer has targeted her and has a palpable bias against her – where the role of the Independent Children’s Lawyer is examined – where the mother fails to understand the role of the Independent Children’s Lawyer in parenting proceedings – where the mother has not established that the Independent Children’s Lawyer has acted contrary to the legislation – where the mother’s application is dismissed.

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – where the father seeks that in the interests of justice the mother’s solicitor be restrained from acting on her behalf – where the mother’s solicitor acknowledged during the course of the hearing  that she had a conflict of interest  – where the evidence demonstrates the fact that the mother’s solicitor lacks any objectivity – where there is a risk that the mother’s solicitors lack of objectivity has been prejudicial to the mother’s case and may have indirectly negatively impacted on the welfare of the child – where the mother’s current legal practitioner is restrained from acting on her behalf.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 68LA

Banks & Banks (2015) FLC 93-637
Boseley v Lyons [1978] FLC 90-423

Goode and Goode (2006) FLC 93-286
Knibbs & Knibbs (2009) FamCA 840

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

In the Marriage of Bennett [1991] FLC 92-191
In the Marriage of Harris [1977] FLC 90-276
In the Marriage of Wotherspoon & Cooper [1981] FLC 91-029
Osferatu and Osferatu (2015) FLC 93-666
Pagliarella (1993) 16 FamLR 688

SCVG & KLD (2014) FLC 93–582

Family Court of Australia, Guidelines for Independent Children’s Lawyers (Policies & Procedures 29 May 2013)

APPLICANT: Ms Kocak

RESPONDENT: Mr Fahri

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 5924 of 2018

DATE DELIVERED: 10 August 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Advocate Me

COUNSEL FOR THE RESPONDENT: Ms Dellidis

SOLICITOR FOR THE RESPONDENT: Mills Oakley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ambrose

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. The Application in a Case filed by the Applicant Mother on 6 May 2020 be dismissed save and accept as to any applications for costs.

2. That Ms Serene Teffaha and the firm ‘Advocate Me’ of Preston Victoria 3072, be and are hereby, effective immediately, permanently restrained from acting in these proceedings for or on behalf of the Mother Ms Kocak.

Costs

1. All applications for costs be reserved for judgment in Chambers.

2. By 4.00pm on 31 August 2020 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the Application in a Case filed 6 May 2020.

3. By 4.00pm on 21 September 2020 the parties file and serve any written submissions in reply to the application for costs.

4. That any submissions as to costs should be limited to 10 pages.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kocak & Fahri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5924  of 2018

Ms Kocak

Applicant

And

Mr Fahri

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the COVID-19 list. To be eligible for the COVID-19 list the application must have been filed as a direct result of the COVID-19 pandemic and be urgent. Whilst the mother’s application was accompanied by an Affidavit as required and was capable of being heard and determined by electronic means for reasons which I will discuss in more detail her application was in my view not a case that should have been listed in the COVID-19 list.

2. Notwithstanding that in my view the mother’s application was not, given its circumstances urgent, the father’s application that the mother’s solicitor Serene Teffaha (“the mother’s solicitor”) be permanently restrained from acting on her behalf did in my view require some priority. This application was not opposed by the Independent Children’s Lawyer (“ICL”) and in her submissions she noted that she had previously suggested that the mother’s solicitor had a conflict and should consider her position.

Background

1. The father was born in Country H and is now 54 years of age. The mother was born in Country L and is now 43 years of age. The parties commenced cohabitation in 2006, were married in 2009 and separated under the one roof in late 2015. They separated physically in late 2016. There is one child of their marriage X (“the child”) who is now eight. The child lived with the mother following separation however on 31 July 2019 Hartnett J made orders providing for the child to live with the father when the final hearing listed before her that day could not proceed due to what the mother’s solicitor described at the time as the mother’s “mental health crisis.”

2. Prior to those orders being made by Hartnett J the child had been living with the mother and spending supervised time with the father following the mother’s allegations that he posed “a risk of physical harm, psychological harm and possible sexual abuse.” Ms G in her report dated 27 November 2018 (at [61]) described the mother as “highly defended, anxious and convinced that X’s more unusual behaviours are best explained by inappropriate and abusive parenting by his father for which X needs protection.”  

3. In anticipation of the final hearing the mother had been psychologically assessed by Ms K who in her report dated 7 July 2019 diagnosed her as having a Mixed Personality Disorder with Narcissistic Features she said (at [46]):

   ….In part due to the longstanding and pervasive pattern of grandiosity, emotional dysregulation, and unstable interpersonal relationship. She experiences retrospective perceptual bias… She struggles to doubt her assumptions or perceptions or to apply logic to them; even when presented with evidence to the contrary she disregards it, maintaining that [X] is at risk in his care.

4. On 31 July 2019 Hartnett J also made orders requiring the mother to attend upon an independent psychologist as nominated by the ICL for the purposes of assessment and report as to her current mental health functioning, including whether she presents any risk to the child. The cost of such attendance and report was to be borne by the father at first instance the father to be at liberty to recover those costs from the mother.  

5. On 29 October 2019 orders were made by consent inter alia as follows:

   (1)The mother spend time with the child as follows:

   (a)For a period of six hours each Sunday;

   (b)Such time to be supervised by J Family Services;

   (c)Such time to occur at a public venue to be nominated by the supervisor, at such times and dates as directed;

   ..

   (e)For one hour, by electronic communication, each Tuesday and Thursday between 5.30 pm and 6.30 pm with the father to facilitate this time.

   (2)The mother attend upon a therapeutic counsellor/psychologist for the purposes of reportable counselling treatment to address issues as raised in the family report of Ms G, and the assessment of Ms K, and the mother provide a copy of these reports to the said counsellor/psychologist prior to the commencement of such reportable counselling/treatment.

   (3)The mother is to provide to Ms K copies of any reports and/or notes generated by her therapeutic counsellor/psychologist appointed pursuant to order 2 herein for the purposes of her attendance upon Ms K as noted at Notation C to these orders.

6. Notation C to those orders said as follows: “the mother is to attend upon Ms K psychologist for an updated assessment as to her current mental health functioning pursuant to order 5 of the orders of 31 July 2019 on 19 November 2019.”

7. On 27 February 2020 the mother consented to further interim parenting orders which provided inter alia as follows:

   (a)That the child spend four hours with the mother each Sunday and two hours on either Tuesday or Wednesday supervised by J Family Services at the expense of the mother;

   (b)That the mother continue to attend upon her treating psychologist Dr N no less than once every three weeks for the purposes of reportable counselling treatment and that the mother provide Dr N with the updated report prepared by Ms K dated 26 December 2019 to Dr N at her next appointment;

   (c)That the mother attend upon an independent psychologist (other than Ms K or psychologists from M Health Service or P Health Service) as nominated by the ICL for the purposes of a review of her mental health functioning, including whether she presents any risk to the child, with such assessment to take place not before the end of June 2020 and as soon as practicable thereafter.  

8. On 6 May 2020 a matter of some 3 months later the mother filed her Application in a Case seeking the discharge of the interim parenting order made 31 July 2019, and 29 October 2019 with the exception of orders 10 to 13 and that the child live with the mother and spend time with the father from 3.30pm on Friday to 9.00am Monday each alternate week, and by telephone. The mother did not seek the discharge of the orders made 29 October 2019 her leave to withdraw the allegations she had made with respect to the father posing a risk to the child. The mother also sought an order for the discharge of the ICL. The mother’s Application in a Case was accompanied by a lengthy Affidavit.

9. On 1 June 2020 the father filed a Response to an Application in a Case seeking that the mother’s application be dismissed and that she pay his costs of that application. On 4 June 2020 the father filed an Amended Response to the mother’s Application in a Case in which he sought a permanent restraint against Ms Teffaha acting on behalf of the mother. The father relied upon the following Affidavits:

   (a)       Affidavit of Mr Fahri filed 1 June 2020;

   (b)       Affidavit of Mr Q filed 4 June 2020; and

   (c)       Affidavit of Ms R filed 9 June 2020.

10. There is significant overlap in relation to the evidence with respect to the three issues the Court is required to determine. The circumstances of the mother’s Application in a Case with respect to both parenting orders and the removal of the ICL are also relevant for the purposes of determining the father’s application to restrain Ms Teffaha from acting on behalf of the mother.

Legal Principles - Parenting

1. The mother is seeking interim parenting orders and in accordance with s 60CA of the Family Law Act 1975 (Cth) (“the Act”) the court’s paramount consideration is the child’s best interests. In determining what orders will be in the child’s best interests the court must consider the primary considerations in s 60CC(2) of the Act and the additional considerations in s 60CC(3). The court must in considering these matters afford greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s60CC(2)(b)).

2. It does not appear that an order has ever been made with respect to parental responsibility however if an order had been made on 31 July 2019 Hartnett J suspended all previous parenting orders. In these circumstances unless there are grounds to believe that one of the parents have engaged in family violence or abuse of the child the court must apply the presumption that it is in the child’s best interest for the parents to have equal shared parental responsibility for the child, as per s 61DA of The Act. The presumption may be rebutted if the court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility. The presumption applies in interim proceedings unless the court considers that in the circumstances of the case it would not be appropriate (s 61DA(3)). In my view given the complexity of the issues in this case it would not be appropriate for the presumption to apply. In particular the issue of the mother’s mental health and the allegations made by the mother both historically and in the context of this application.

3. In Banks & Banks (2015) FLC 93-637 the Full Court of the Family Court of Australia (the “Full Court”) referring to the Court’s approach in interim parenting proceedings said (at [48]-[50]) as follows:

   …by their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   …there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

Allegations of Family Violence

1. On 6 May 2020 the mother filed a Notice of Child Abuse Family Violence or Risk of Family Violence (Current Case) in which she said that the child was at risk because of the father “... making financial threats, false allegations against the mother and threatening that the mother will be bashed and stabbed by a group of brothers”.

2. The mother described the alleged physical threats in her Affidavit filed 6 May 2020 (at [50]-[54]) as follows:

   50.On 17 March 2020, my solicitor was moving her premises and she wanted to drop off a suitcase of files so as she was attending my premises at the former matrimonial home she received an unprompted call from the Father. Again, the father is not meant to communicate directly with my solicitor. My solicitor was concerned that something may have happened to X so she answered the call.

   51.The father proceeded to make the following false allegations and threats of physical violence against me:

   (a)He alleged that he had video evidence which places me at what appears to be his girlfriend’s residence, furiously knocking at the door demanding answers from her and accusing her of separating myself and the Father.

   (b)I had allegedly attended the premises on numerous occasions after the mediation date.

   (c)I was out of control and irrational and he wanted my solicitor to know the truth about me and demanded my solicitor’s next actions if he can prove these allegations to her.

   (d)The father indicated that as a result of my alleged behaviour, the brothers of his supposed girlfriend had planned to come and bash and stab me and seek retribution against me which he could not control.

   52.Because of the nature of the dangerous and false allegations the Father was making, my solicitor asked me to commence taping the conversation for my safety and protection.

   53.My solicitor was keen to get as much information as possible from the Father so she kept him on the phone for as long as possible trying to get the names and locations of the parties who were going to execute those physical threats against me. My solicitor was able to determine that the address was somewhere in T Street, Suburb S. The Father would not give me any more information.

   54.My solicitor warned the Father that these allegations made against me where not just false and untrue but they were dangerous and she warned the Father that he knew that his own family members had lied about him to me and that this was the source of the initial allegations that I had made against him in Court. The Father confirmed that he knew that I was not the liar and that members of his family had lied to me and that he has not separated from them. Yet the Father insisted that his supposed girlfriend and her family would never lie to him. The Father also insisted that the threats of violence were likely to be carried out against me.

3. The mother thereafter deposed that on 18 March 2020 she and her solicitor went to the Suburb U Police Station and reported the alleged threats. She says that she provided the Police with a copy of the conversation she had recorded between the father and her solicitor and that the police applied for an Intervention Order on her behalf including the child in that application. The father was served with that application on 26 March 2020 which required him to appear at the Magistrates Court on 27 March 2020. The matter could not proceed on that date, the mother says because the police prosecutors had not had time to listen to the whole of the recording, and the father was released on bail on the condition that he not commit family violence against the mother, electronically publish any information about the mother, go to or remain within 200 meters of any place where the mother lives or works, approach or remain within 5 metres of the mother or damage her property.

4. The mother’s solicitor submitted that the fact that the father had been released on bail demonstrated the seriousness of the matter and how seriously the allegations had been taken by the Magistrates Court on 27 March 2020 ignoring the fact that the court declined to make an interim intervention order and varied the conditions of bail and that Constable V, having listened to the first 10 minutes of the recording, told the court that the father was quite calm and that he had not heard the father making any threat to the mother or her solicitor.

5. I have had the opportunity to listen to the whole of the recorded telephone conversation and whilst the father is sometimes difficult to hear I did not hear him make any threats against the mother.  In my view the recording does not support the mother’s case that the father poses a risk to either her safety or the child’s welfare.

1. The mother also deposed to being financially threatened by the father based upon the letter she said she received from the father’s solicitors raising the possibility of an application to vary the final property orders in circumstances where the former matrimonial home was likely to sell for significantly less than the value the parties had attributed to it for the purposes of their property settlement negotiations and sharing the costs associated with the sale. The mother annexed the letter sent by the father’s solicitor to her Affidavit. In my view whilst the letter refers to the possibility of an application to vary the final property orders it is not threatening.  

The Mother’s Mental Health

1. On 16 August 2019 Hartnett J delivered her reasons with respect to the orders made 31 July 2019 including the order that until further order the child live with the father. In those reasons her Honour referred to the mother on the second day of the final hearing seeking an adjournment because she was unable to attend court due to a “mental health crisis” which required her to take prescribed medication and that whilst she had engaged a lawyer to act on her behalf that lawyer acknowledged that she was unable to obtain full instructions from the mother.

2. Her honour said at (at par [22]) of those reasons as follows:

   ...It is clear, on the evidence provided to the Court by the mother herself, that the mother’s health is compromised.  It is not possible for the Court to establish that the child would be in a safe environment if returned to the care of his mother at this time.  His father is described as a competent caregiver, and Ms G has observed he and the child have a relationship of a type which would not present difficulties for the child in being in his father’s care.

3. Hartnett J continued (at par [27]) as follows:

   …The mother needs to recover her mental health functioning.  The child needs to be safe, and on the outcome of investigations to date, and noting, the mother’s concession at trial through her lawyer – that there should be unsupervised and extended time, will be so in his father’s care.  Independent evidence as to the mother’s current mental health functioning needs to be before the Court before the matter can proceed such that the Court can be satisfied that the mother’s mental health crisis is resolved to the extent that it does not present a risk to the safety of the child.

4. As submitted by counsel for the father the mother’s mental health is a critical issue in this case. It is difficult to understand in these circumstances why the mother would have consented to orders on 27 February 2020 requiring her to attend upon an independent psychologist nominated by the ICL to assess her mental health functioning, including whether she presents a risk to the child, and then both failed to comply with that order and then filed an application without that assessment having been completed, and more importantly how the court could make an order discharging the previous orders and returning the child to the mother’s care in the absence of that critical evidence.  

5. The mother put her case for the discharge of the orders made on 31 July 2019 and the return of the child to her primary care on the basis that there had been a disproportionate and unwarranted focus on her mental health. The mother’s solicitor referred me to three reports she said demonstrated that there was no evidence of the mother having any psycho pathology. They included:

   (a)Dr AA’s report dated 17 September 2018, completed prior to the mother’s “mental health crisis” which preceded the orders made by Hartnett J on 31 July 2019;

   (b)The report of  the mother’s treating psychologist Dr N dated 18 November 2019 (Annexure M-5 of the mother’s Affidavit filed 6 May 2020) and;

   (c)Ms K’s report dated 26 December 2019.

6. Dr N diagnosed the mother has having “Post Traumatic Stress Disorder (PTSD) in partial remission” and “Adjustment Disorder with mixed depressed mood with anxious distress, in early remission.” However I am satisfied that Dr N’s diagnosis was made without him having had the benefit of all of the documents filed in these proceedings.  In relation to Ms K, both the mother in her Affidavit and her solicitor in her submissions were critical of Ms K, albeit the mother’s solicitor relied on the fact that Ms K had not considered it necessary and had not administered any further Personality Assessment Inventory evaluation for the purposes of her second report. 

7. The focus of the mother’s case on the absence of any “psycho pathology” disregards the real issues in the case and ignores the fact that Ms K has assessed the mother on two occasions, the first time prior to the child being removed from her care and that in her second report she says inter alia as follows:

   36.[Ms Kocak’s] parenting needs outweigh her parenting strengths. There has not been a significant change between assessments, except that [Ms Kocak’s] psychological and vocational functioning have improved.

   …

   40.Following the initial assessment, [Ms Kocak] experienced a “mental health crisis” and [X] was removed from her care. It is likely that she was suffering from an Adjustment Disorder.

   41.[Ms Kocak] currently meets the criteria for a diagnosis of personality Disorder NOS (Mixed Personality Disorder, With Narcissistic Features) with a longstanding and pervasive pattern of grandiosity, emotional dysregulation, and unstable interpersonal relationship. She also presents with posttraumatic stress and adjustment difficulties (With anxiety).

   …

   43.[Ms Kocak] exhibits elevated impression management, dichotomous and catastrophic thinking, perpetual concerns, and a lack of critical self-reflective thinking. She has poor insight into the negative impact that her allegations and withholding behaviour have had on [Mr Fahri] and [X].

   44.Whilst [Ms Kocak] reported that she had disconnected from the unhealthy “fears and projections” that led her to make numerous allegations against [Mr Fahri], there is no indication that [Ms Kocak’s] beliefs or perceptions regarding [Mr Fahri] being abusive have weakened over time, or changed in response to disconfirming evidence. The supervision notes suggest [Ms Kocak] is seeking to find fault in [Mr Fahri’s] parenting through [X].

   …

   46.[Ms Kocak’s] parenting needs outweigh her parenting strengths according to the FSNA, thus the likelihood X will be exposed to neglect of abuse in her care was rated as Moderate. No concerns have been raised in relation to her basic parenting skills and her mental health and vocational functioning have improved since the initial evaluation, but [Ms Kocak] recently experienced a mental health crisis and is vulnerable to relapse.

   47.Exposure to [Ms Kocak’s] anxiety, hypervigilance and negativity regarding [Mr Fahri] may be harmful to [X]. If parental contact and communication are not well-managed to prevent [X] from being exposed to parental conflict, the risk of harm to him would likely increase. If [Ms Kocak] engages in appropriate treatment and monitoring for her mental health concerns, the risk may decrease in the future.

8. The mother’s solicitor’s submissions rather than focusing on the best interests of the child were focused on what she submitted was the disproportionate and unfair targeting of the mother and on that basis there being no reason why the child should not be returned to the mother’s care. However it is difficult to understand given her criticisms of Ms K that having consented to an order for her attendance upon another psychologist nominated by the ICL, the mother would not have attended upon that psychologist in order to progress her case for the return of the child to her care.

9. Significantly in my view apart from her reference to the supervisors notes, to which I will refer in more detail when I deal with the mother’s application for the discharge of the ICL, there was virtually no focus on the issue of the child’s welfare and why discharging the orders made 30 July 2019 would be in the child’s best interests. In particular why it would be in the child’s best interests to now remove him from the father’s care and the impact of doing so in circumstances where it is the mother’s case that even if the court acceded to her application the child would be spending unsupervised time with the father each alternate weekend and sharing the school holidays.

Discharge of Independent Children’s Lawyer

1. The ICL was appointed pursuant to the orders made on 26 June 2018. In her Affidavit the mother deposed to being “targeted both mentally and emotionally” by the ICL and describes the ICL as having a “palpable bias” against her. The mother relied upon a number of matters including;

   (a)That the mother was not aware and not invited to attend an appointment made for the child with Dr W;

   (b)That the child attended that appointment in the company of the father and his half-sister;

   (c)That although Dr W’s assessment was that the child did not require ongoing counselling the ICL insisted that the mother should attend upon Dr W but advised when the mother’s solicitor requested that she confirm her advice to the father that she would instruct Dr W not to communicate with the parties;

   (d)That the ICL did not respond to the concerns raised by the mother in relation to the notes of the supervisors which included but was not limited to references to the child describing playing M rated games, being exposed to his aunt’s aggressive behaviour, complaints that the father doesn’t listen to him and gets angry with him, that the father has left him unsupervised at his cousin’s place and exhibiting a fear of heights; and

   (e)That the ICL did not object to the father’s decision to change the child’s school. 

2. The mother also took issue with the ICL giving instructions to independent experts as to what they could and could not do such as telling Ms K not to answer questions directed to her by the mother’s solicitor.

3. Section 68LA of the Act deals with the general nature and specific duties of the ICL as follows:

   FAMILY LAW ACT 1975 - SECT 68LA

   Role of independent children's lawyer

   When section applies

   (1)This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.

   General nature of role of independent children's lawyer

   (2)The independent children's lawyer must:

   (a)Form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and

   (b)Act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.

   (3)The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

   (4)The independent children’s lawyer:

   (a)Is not the child’s legal representative; and

   (b)Is not obliged to act on the child’s instructions in relation to the proceedings

   Specific duties of independent children’s lawyer

   (5)The independent children’s lawyer must:

   (a)Act impartially in dealings with the parties to the proceedings; and

   (b)Ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

   (c)If a report of other document that relates to the child is to be used in the proceedings:

   (i)Analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

   (ii)Ensure that those matters are properly drawn to the court’s attend; and

   (d)Endeavour to minimise the trauma to the child associated with the proceedings; and

   (e)Facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

   Disclosure of information

   (6)Subject to subsection (7), the independent children’s lawyer:

   (a)Is not under an obligation to disclose to the court; and

   (b)Cannot be required to disclose to the court

   Any information that the child communicates to the independent children’s lawyer.

   (7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.

   (8)Subsection (7) applies even if the disclosure is made against the wishes of the child.

4. This court published its own “Guidelines for Independent Children’s Lawyers” (Family Court of Australia, Guidelines for Independent Children’s Lawyers (Policies & Procedures 29 May 2013). Those guidelines which were most recently published on May 29 2013 refers to the following matters:

   2. Introduction

   The role of the ICL is unique. The lawyer appointed to represent and promote the best interests of a child in family law proceedings has special responsibilities.

   Decisions in particular cases as to how the ICL progresses the case and how s/he involves the child in the case are ultimately, subject to the statutory requirements in Division 10 Part VII, in the ICL's discretion.

   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...

   4. The role of the ICL

   The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision-making about the proceedings. However, this does not mean that the child is the decision maker. Among the factors that indicate the appropriate degree of involvement in an individual case are:

   the extent to which the child wishes to be involved; and

   the extent that is appropriate for the child having regard to the child's age, developmental level, cognitive abilities, emotional state and views.

   These factors may change over the course of the ICL's appointment.

   The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.

   The ICL must be truly independent of the court and the parties to the proceedings.

   The professional relationship provided by the ICL will be one of a skilful, competent and impartial best interests advocate. It is the right of the child to establish a professional relationship with the ICL.

   The ICL should seek to work together with any Family Consultant or other relevant expert involved in the case to promote the best interests of the child.

   The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child's best interests.

   The ICL should bring to the attention of the court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.

   The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.

   The ICL does not take instructions from the child but is required to ensure the court is fully informed of the child's views, in an admissible form where possible.

   The ICL is to ensure that the views and attitudes brought to bear on the issues before the court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.

   The ICL is expected and encouraged to seek peer and professional support and advice where the case raises issues that are beyond his or her expertise. This may involve making applications to the court for directions in relation to the future conduct of the matter.

   The ICL must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

5. In Knibbs & Knibbs (2009) FamCA 840 (“Knibbs”) Murphy J set out a detailed analysis of the role of the ICL and the approach the court should take with respect to an application to discharge the ICL. His Honour said commencing at [33] as follows:

   33.      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)

   34.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…”

   35.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”.

   36.In Pagliarella (1993) 16 FamLR 688, Hannon J was asked to discharge the ICL 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”.

   37.      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…”

1. His Honour then went on subject to one qualification to adopt the reasons of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. Holden CJ said (at [30]) as follows:

   30.There are a number of very good reasons why, in my opinion, the Court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. Those reasons include:

   (i) The best interests of the children have to be borne in mind. Unfortunately these children have been embroiled in the dispute between their parents for a long period of time. For much of that time they have had C as their representative who states that in her belief she has developed a good relationship with the children. That would not be surprising given the period of time that she has been representing them. Given what the children have had to endure to date, by virtue of these proceedings, it does not seem to me to be in their best interests to deprive them of a representative with whom they have built up a good relationship and introduce them to a complete stranger with whom they may or may not develop a similar relationship. In my opinion the Court should not take that step unless there is good reason to do so. No such reason is present in this case.

   (ii) The Court should treat allegations of lack of impartiality with caution. To do so otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations of 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 that 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 to be given to removing a child representative.

   (iii) There is also a public policy consideration. To date, as I understand it, the fees of the children’s representative have been met by Legal Aid. As I indicated earlier in these reasons for judgment, these parties have been arguing in this Court over their children for a period approaching 6 ½ years. C has been involved in the proceedings for about 4 ½ of those years and, no doubt by virtue of the fact, has a thorough knowledge of what has gone on between the parties.

   Any new solicitor appointed would have to wade through the four volumes of the Court file to acquire the necessary knowledge to adequately represent the children. That, of itself, would involve considerable expense to the Legal Aid Commission, the resources of which are finite. That is not to say that this consideration should prevail where obvious impartiality has been demonstrated to the satisfaction of the Court.’

2. In my view the mother has misinterpreted both evidence upon which she relies in support of her application that the ICL be discharged and the role of an ICL. One example was the mother’s complaint in relation to the child’s attendance upon Dr W. The mother deposed that on 15 October 2019 an appointment was made for the child to see Dr W. It is difficult to see what criticism there could be of the ICL in relation to this appointment in circumstances where the mother’s evidence was that it was her view that the child was highly distressed by his removal from her care and that her solicitor had urged the ICL to arrange for the child to attend upon an independent counsellor. The mother’s criticism appears to be that the father attended the appointment with the child, that she was not advised by either Dr W or the ICL that she should attend the appointment and that Dr W should have seen the child without either parent in the room during that appointment. Thereafter the mother says she was advised by the father’s solicitor that the child had seen Dr W and that it was her opinion that the child did not require ongoing assistance. This letter from the father’s solicitor was emailed to both the mother’s solicitor and the ICL on 17 October 2019.

3. On 17 October 2019 the mother’s solicitor wrote to the father’s solicitor as follows:

   Dear [Mr Q],

   I refer to your letter.

   You state in the letter that [Dr W] queried [X’s] attendance and the need for a further appointment. Please specify the party or parties this was communicated to and whether this was communicated in writing by [Dr W]. I have not received anything from [Dr W] to that effect. I would have thought that [Dr W] would have communicated her concerns to [Ms BB].

   Further, my client was contacted for an appointment. Please specify if the Father was also contacted for an appointment.

   My client was requested to make an appointment with [Dr W] and indications were given to her that [X’s] needs are being assessed on an ongoing basis.

   I would have thought it as highly unprofessional conduct from [Dr W] to attempt to make an appointment with the mother only if it was not necessary to see [X] on an ongoing basis, since the whole point of her involvement is to provide [X] with support.

   Please clarify.

4. The father’s solicitor replied advising the mother’s solicitor that the matters raised in their letter sent earlier that day were communicated directly to the father by Dr W during the appointment on 15 October 2019. The mother’s solicitor replied as follows:

   Dear [Ms R],

   Thank you for your email.   

   I would like some further clarification as to whether the Father was present during the duration of the session with [Dr W]. My understanding is that the session is conducted without the involvement, attendance or interference from either parent.

   I remind you that your client does not have sole parental responsibility.

   I do have concerns with what appears to be inconsistent indications made to your client and my client. Furthermore, my client was advised that she will pay fully [X’s] next appointment as the Father had paid for the current one.

   For this reason, I request [Ms BB] to get further clarification from [Dr W] regarding [X’s] next appointment with her which my client is scheduled to pay for.

   Kind Regards.

5. The ICL replied as follows:

   Dear Practitioners

   I refer to the emails passing between the parties.

   I have not yet spoken to [Dr W]. I note however that the first appointment for [X] was organised by me, and confirmed. I understood that the mother would make the necessary arrangements for her attendance. This did not occur, thus [Dr W’s] rooms contacted her directly. It would seem that there has been some confusion as to the appointments, however I note that the mother is now to attend. Once I have had the opportunity of speaking to [Dr W], I will advise the parties.

6. There were a series of further emails and it is clear from those emails which are annexed to the mother’s Affidavit that the child’s appointment with Dr W was arranged by the ICL, that the mother was aware of the appointment, that the ICL understood that the mother would make her own appointment with Dr W and that when she did not do so Dr W contacted the mother directly, the purpose of her appointment with the mother being to allow her to consider how best to support the child.

7. In my view orders having been made that the child live with the father and the mother having only supervised time it is not surprising that he would be the one to take the child to see Dr W and similarly not surprising that the father and mother would not attend the same appointment. It is also in my view not that surprising that Dr W might advise the father during that appointment that she did not think the child required ongoing assistance. I am also satisfied that it was appropriate for the father to instruct his solicitor to pass this information on to both the mother and the ICL and that there was no need for Dr W given her limited interaction with the child and in circumstances where she did not consider it necessary to make any further appointments to prepare a report particularly in circumstances where it was open to the mother to make her own appointment to see Dr W to discuss the child’s welfare. Unfortunately the mother and her solicitor appear to have interpreted the suggestion that the mother attend an appointment with Dr W as Dr W wanting to assess the mother. Even if that were the case and I am not satisfied that it was so significantly in my view the criticism is directed primarily at Dr W rather than the ICL.

8. The mother’s solicitor was also highly critical of what she described as the ICL’s failure to act in relation to concerns she expressed based upon the notes of the mother’s supervised time with the child. These included the child playing Nintendo all day with his cousins, playing M rated games with his cousins, the child’s description to his mother of feeling angry and how he dealt with that anger and the child complaining about being hot and not having a T-shirt on and telling the mother that “my dad never listens to me, why?”. In my view the mother has taken these statements made by the child out of context and as referred to by Ms K is using them to find fault with the father’s parenting but also now in support of her case that the ICL should be removed.

9. There is one example that in my view stands out and highlights the issue with the mother’s case. During one of the supervised sessions the supervisor in her notes said as follows:

   …We arrived and parked close to [Location CC]. As we were going down stairs, [X] suddenly had trouble walking down the stairs. He was walking very slowly, holding onto the railing with both hands, and sounded like he was saying, “Oh” a lot. [Ms Kocak] asked, “What was wrong” [X] said, “The stairs, they are too steep.”

10. The child also complained about the stairs being too high when he later went up the same set of stairs. In my view the issue is not the fact that the child said what he did or even that he may have been a bit frightened by the height of the stairs the issue is the interpretation of what he said by the mother. The mother’s solicitor submitted that the child had shown “extreme fear” and that as he was fearless in nature this was unusual and of significant concern. I note that in her email to the ICL on 20 January 2020 in relation to this issue the mother’s solicitor said as follows:

    We believe that the ICL should intervene and do the following:

    …

    2. Consider the content of the supervision report dated 11^th November 2019 closely and set up proper boundaries in relation to [X’s] care. The content reveals [X] has been playing M rated games, being exposed to aggressive behaviour by his Aunty, complaining about his father not listening to him and getting angry with him, being left unsupervised by his father at cousins’ place (contrary to the court orders), increased aggressive and rude behaviour by [X] (including swearing), sleeping at school, displaying troublesome behaviours at school uncharacteristic of [X], exhibiting frustrated behaviour like ouching his pillows, expressing that his personal beliefs are silenced and being from [Country L] is the most pivotal identify, exhibiting fear of heights when [X] was a fearless child during the care of his Mother, being exposed to inappropriate content on TV including violence and gun use, telling [Ms Kocak] that his father is wiping his private parts and that his ‘bum’ is ‘dirty’ and needs to be attended to by her when [Ms Kocak] has taught him to attend to cleaning his private parts himself and being tearful and asking to come home. These matters should raise serious concerns for ICL and should not be disregarded.

11. In a further email dated 31 January 2020 in the context of discussing other parenting concerns the mother possesses about the child’s school and whether the ICL has met with the child, the solicitor for the mother says to the ICL as follows:

    …I am also concerned about the fact that you are not considering the content of the supervised notes. I note in this regard that these are not the Mother’s concerns, these were statements made by [X] and recorded independently by the supervisor. I would have thought that ICL should pay attention to those concerns. Please advise ICL’s position regarding the supervision notes.

12. The submissions and the level of the mother’s concerns as expressed by her solicitor is in my view take the matters reported out of context and the mother’s reaction is out of proportion to the matters reported.  

13. Although I am not satisfied that anything in these reports gives rise to the level of concerns the mother says they should in the context of all of the issues in this case even if they did in my view the mother has misconstrued the role of the ICL and the part she plays in the proceedings. As Murphy J said in Knibbs:

    44.Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for or on behalf of a party if, in their proper, considered, professional judgement, the evidence points to such a conclusion. 

    45.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).

    …

    47.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, her 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 basis right: the right of a parent to parent his or her child in the way they best think fit.

    (Emphasis in original)

14. A good example of this was the father’s decision to change the child’s school. Whilst it might be one thing to criticise the father for acting unilaterally the criticism of the ICL is that she did not do anything about it or perhaps from the mother’s point of view insist that the child be returned to his previous school. This ignores the reasons why the father said he had enrolled the child at his new school, reasons which appear to have led the ICL to conclude, as in my view she was entitled to do, that it was in the child’s best interests irrespective of the mother’s position. 

15. Coupled with the mother’s complaints about the ICL not responding to concerns she raised based upon the supervisors notes it is her assertion that the ICL is biased against her, inappropriately targeting the mother’s mental health rather than acting in the child’s best interests. I do not accept this submission. To the contrary as previously referred to the mother’s mental health issue is a central issue to this case.

16. I accept as submitted by the ICL that the evidence does not establish either that she has not properly discharged her duty to act in the child’s best interests focusing on the issues in the case or that she has demonstrated in those circumstances any bias towards the mother. In all of the circumstances I propose to dismiss the mother’s application to remove the ICL.

Order Restraining the Mother’s Solicitor from Continuing to Act on her Behalf

1. It is the father’s case that the interests of justice require that the mother’s solicitor be restrained from acting on her behalf. There is no dispute that the court has the inherent jurisdiction to control its own processes which includes making the order the father seeks (Osferatu and Osferatu (2015) FLC 93-666 at [20]).

2. Whilst the mother’s solicitor submitted that she had never been the subject of a complaint to the Legal Practice Board her conduct in this case has been most unusual.  

3. There are a multitude of reasons in this case why the mother’s solicitor should not be acting on the mother’s behalf in the proceedings not least in my view the likely detriment to the mothers’ case if she were to continue to do so. They include the obvious conflict in circumstances where she has described herself as a mutual friend of both the father and the mother, her telephone conversation with the father on 17 March 2020 in breach of her written undertaking to the father’s solicitors not to contact or communicate with the father without their written knowledge or consent and her being a witness in the intervention order proceedings. Although it may have been the father who initiated the call to the mother’s solicitor, she was clearly aware of her obligation not to communicate with the father and would or should have understood that she should terminate the call. To the contrary it was the mother’s evidence that her solicitor kept the father on the phone for as long as possible to get information from him about the “dangerous and false allegations” he was making against her.

4. The mother having recorded the telephone conversation between the father and her solicitor then went to the Suburb U Police Station with her solicitor where they both made statements. In her statement the mother’s solicitor said that that she” felt at that stage of the phone call, that Mr Fahri may be trying to sabotage the Final Property Orders that he is not happy about. I signed to my client, who was present with me, to commence taping the conversation as I felt that he was making false allegations against her.” The mother’s solicitor also submitted in the hearing before me that although the mother had recorded the conversation without the father’s knowledge or consent she could rely upon that recording in circumstances where that evidence might disclose a potential crime which based upon what she said in her statement was that the father might be trying to sabotage the final property orders. The mother’s solicitor also said in that statement that the father has made allegations about the mother suggesting that she had visited his friends and had told her that those friends would “bash” and “stab” her client.

5. When the matter came on for hearing in the Magistrates Court at Suburb U the mother’s solicitor told the court that she was “extremely concerned about the safety of my client and what I was hearing from the respondent were threats.” It was the father’ case that he had attempted to warn the mother rather than threaten her which having listened to the recording of the conversation recorded by the mother is consistent with the father’s evidence. 

6. Significantly in my view even if the father did not understand that he should not be speaking to the mother’s solicitor as a as a legal practitioner, even without the undertaking that she gave to the father’s solicitor, should have known that she should not have taken the call or if she had not recognised the caller once she realised who it was should have terminated the call.

7. I have also had the benefit of a transcript of the hearing in the Magistrates Court at Suburb U during which the magistrate pointed out to the mother’s solicitor the obvious difficulty with her continuing to act for the mother in circumstances where she was also a witness in the case before her. In my view there is clearly a conflict and yet notwithstanding what appeared to be quite robust views expressed by the Magistrate and over the objections of the father’s solicitors she has continued to act on the mother’s behalf.

8. In the mother’s solicitors police statement she described herself as becoming “more emotional” and counsel for the father described her as speaking in a “highly emotive manner”. In my view the way in which she conducted herself during the telephone conversation with the father was totally inappropriate. It sounded like a conversation between two litigants not between a litigant and the solicitor for the other party. During this conversation and for that matter during the hearing before me it sounded like she and her client were one and the same.  

1. The letter the mother’s solicitor sent to the Chief Justice of this Court, the Chief Magistrate of the Magistrates Court of Victoria and the Deputy Assistant Commissioner of Victoria Police complaining about the conduct of judges of this Court, the Chief Magistrate and Deputy Commissioner, the Independent Children’s lawyer and Ms K was also in my view totally inappropriate and  more importantly highlighted the mother’s solicitors total lack of objectivity and in those circumstances the inappropriateness of her continuing to act on the mother’s behalf in these proceedings.

2. Whilst initially opposing the father’s application that she be restrained from acting on behalf of the mother in the proceedings the mother’s solicitor ultimately acknowledged the inappropriateness of the letters she had sent to the Court, apologised for having sent those letters and conceded that she had a conflict and should not continue to act for the mother. She did however ask that she not be immediately restrained from acting on the mother’s behalf, as sought by the father, as she submitted she would need time to assist the mother in finding alternate legal representation.

3. I accept as submitted by counsel for the father that if the mother’s solicitor has a conflict she cannot continue to act on the mother’s behalf and I propose to make the orders the father seeks.  My concern however is not only that there is a conflict but that the mother’s solicitor’s lack of objectivity may have prejudiced the mother’s case and may have indirectly had a negative impact on the welfare of the child. If the mother is to progress her case she needs to comply with the courts orders not now argue after the fact that they are not necessary.

4. The court must act in the best interests of the child which in the circumstances of this case requires updated evidence with respect to the mother’s mental health. Until that is available there is no basis to discharge or vary the previous orders as the mother seeks. Whilst I do not know what advice the mother’s solicitor gave to her client with respect her compliance with the order requiring her to attend for further assessment upon an psychologist nominated by the ICL and the Application in a Case her decision not to do so and the application itself were in my view totally misguided. Although the mother’s solicitor will not be permitted to act on behalf of the mother I note that they are friends and if the mother has acted on the advice of her solicitor she should treat any advice she receives even if it is not strictly legal advice with a significant degree of caution.

5. Although neither the father nor the ICL submitted that I should refer the mother’s solicitor to the Legal Practice Board it may well be that a complaint has already or will be made. Whether or not a complaint has been or is made I would urge the mother’s solicitor to seek advice and reflect upon her professional obligations, her lack of objectivity and how that has influenced the role she has played in this case.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 August 2020.

Associate: 

Date:  10 August 2020