Leroux & Leroux
[2015] FamCA 1128
•17 December 2015
FAMILY COURT OF AUSTRALIA
| LEROUX & LEROUX AND ORS (INDEPENDENT CHILDREN’S LAWYER) | [2015] FamCA 1128 |
| FAMILY LAW – CHILDREN – Independent Children’s Lawyer – Application by father for removal of Independent Children’s Lawyer – Allegations that the Independent Children’s Lawyer failed to recognise and respond to evidence of alienation, failure to raise notice of risk of child abuse, failure to recognise need of mental health assessments, forming premature unqualified views, conflict of interest, lack of impartiality, over familiarity with mother’s solicitor, improper Father’s Day arrangements, failing to request preliminary report from psychologist, relevant considerations. Family Law Act 1975 (Cth) Leroux & Leroux [2015] FCCA 2078 |
| APPLICANT: | Mr Leroux |
| 1st RESPONDENT: | Ms Leroux |
| 2nd RESPONDENT: | Mrs Digby |
| 3rd RESPONDENT: | Mr Digby |
| FILE NUMBER: | HBC | 909 | of | 2014 |
| DATE DELIVERED: | 17 December 2015 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 13 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Blissenden |
| SOLICITOR FOR THE 1ST RESPONDENT: | Blissenden Lawyers | |
SOLICITOR FOR THE 2ND RESPONDENT: | In person - Mrs Digby was excused as she was apparently unwell | |
| SOLICITOR FOR THE 3RD RESPONDENT: | In person | |
| COUNSEL FOR THE INDEPENDENT | Mr Welch | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania | |
Orders
The application in a case filed by Mr Leroux, the father, on 9 September 2015 be dismissed.
Any costs applications in respect of the removal application are reserved.
IT IS NOTED
These proceedings are listed for trial directions and for orders to appoint a single expert at Hobart on 11 February 2016 at 4.00pm.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux and Ors (Independent Children’s Lawyer) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 909 of 2014
| Mr Leroux |
Applicant
And
| Ms Leroux And Mrs Digby And Mr Digby And Independent Children’s Lawyer |
REASONS FOR JUDGMENT
INTRODUCTION
An order was made in the Federal Circuit Court on 4 June 2015 requesting that the Legal Aid Commission of Tasmania make arrangements for the appointment of an Independent Children’s Lawyer for the children, D born 2002 and E born 2003 (‘the children’). Subsequent to that order the Legal Aid Commission appointed Mr Patrick Fitzgerald of the Legal Aid Commission to be that Independent Children’s Lawyer.
The children’s parents are Mr Leroux (‘the father’) and Ms Leroux (‘the mother’). The children’s paternal grandparents, Mr Digby (‘the paternal grandfather’) and Mrs Digby (‘the paternal grandmother’) are parties to the substantive proceedings.
By way of application in a case filed 9 September 2015, the father sought removal of Mr Fitzgerald as the Independent Children’s Lawyer (‘the Independent Children’s Lawyer’) and sought the appointment of another person to undertake that role.
In his written submissions the father asserted, as best as I can determine, the grounds for removal of the Independent Children’s Lawyer were:-
(a)Failure to recognise and respond to evidence of alienation;
(b)Failure by the Independent Children’s Lawyer to raise notice of risk of child abuse for family violence with the court;
(c)Failure of the Independent Children’s Lawyer to recognise need for mental health assessment to be undertaken;
(d)Evidence of the Independent Children’s Lawyer forming ‘premature and unqualified views’ that the mother has not alienated the children.
(e)Hearing before Justice Benjamin on 16 September 2015 – a series of complaints.
(f)Conflict of interest – various complaints.
(g)Lack of impartiality– various complaints.
(h)Overfamiliarity between the Independent Children’s Lawyer and the mother’s solicitor.
(i)Failure by the Independent Children’s Lawyer to disclose relevant information.
(j)Failure by the Independent Children’s Lawyer to make arrangements for Father’s Day for 2015.
(k)Failure by the Independent Children’s Lawyer to request a preliminary report from psychologist Dr G and letter to Dr G.
BACKGROUND
In terms of the application for removal of the Independent Children’s Lawyer, this was commenced by the father by his application in a case filed 9 September 2015. This application was supported by an affidavit of the father, filed the same day, in which he asserted that the Independent Children’s Lawyer:-
(a)is acting against the children’s best interests;
(b)is not making independent decisions;
(c)has a conflict of interest;
(d)is biased;
(e)is hostile towards the father;
(f)has an increased level of conflict;
(g)has undermined the role of the psychologist Dr G in undertaking therapeutic counselling for the children with a view to improving the relationship with their parents;
(h)caused considerable waste of costs; and
(i)Ignored and not acted upon the recommendations of the Family Consultant in a Memorandum to the Court in May 2015 with respect to the children spending time with the father.
That application came before the Court on 16 September 2015 and was lacking in any factual basis upon which an order could be considered, let alone made.
To enable the issue to be properly ventilated the father was given a further period of seven days to file and serve further affidavit material in support of his application. Directions were made for the Independent Children’s Lawyer to subsequently file any material which he sought to rely, the Independent Children’s Lawyer having made it clear that he opposed the application.
On 24 September 2015 the father filed an affidavit containing 23 typed pages of material and annexed some 239 pages of further documents. The paternal grandfather, the third respondent, subsequently filed a 15 page affidavit supporting the father’s position but did not seek an order himself. Much of the material contained in the paternal grandfather’s affidavit was conclusion and some of it was based on hearsay not evidence. However, the affidavit was read into evidence and given such weight as the Court considered appropriate.
On 24 September 2015 the father prepared and filed written submissions of some 21 pages. On 9 November 2015 the father filed further written submissions containing some 11 pages.
Whilst the father was unrepresented he made it clear that his comments, opinions and views were influenced from legal advice he had received from legal practitioners including: Ms Ryan, Mr McVeity, his current legal advisors, Lander and Rogers and counsel Jeanette Swan.
The Independent Children’s Lawyer filed a response to an application in a case on 13 October 2015. In that response he sought an order for costs.
Prior to filing the response to the father’s application in a case, the Independent Children’s Lawyer filed an application in a case seeking an abridgment of time so that the question of the nature of the father’s written submissions could be determined in advance of the interim hearing.
In that application in a case the Independent Children’s Lawyer objected to significant parts of the father’s submissions and parts of the father’s affidavit.
Given the nature of the proceedings that application was listed for hearing at the same as the father’s application in a case for removal of the Independent Children’s Lawyer. The issues raised in the Independent Children’s Lawyer’s application in a case filed 1 October 2015 were subsumed by the primary application in a case. As such that application is now otiose, although the objections were dealt with in generality in relation to the submissions and in the specific with regard to the father’s primary affidavit.
The affidavit of the Independent Children’s Lawyer sworn 1 October 2015 was not relevant in the substantive proceedings.
The substantive parenting proceedings were commenced by the father in the Federal Circuit Court on 16 December 2014. On 5 May 2015 orders were made enabling the paternal grandmother to spend time with the children on each alternate Sunday for a few hours. At that time the paternal grandmother was joined as a party to the proceedings.
The proceedings were adjourned to 4 June 2015 for an interim hearing.
The interim application filed by the father to spend time with the children was heard by Judge Baker of the Federal Circuit Court on 4 June and 15 July 2015. Her reasons were published on 16 July 2015 and orders were made that the children spend time with the father through the Contact Centre. The orders also provided some telephone communication between the father and the children and there were orders regarding the payment of an expert’s fee.
The orders noted that the parties would be working with the Contact Centre and family therapist, Dr G, to manage the time.
Orders had been made on 4 June 2015 for Dr G, if available, to provide therapeutic or family counselling. The orders said therapeutic counselling. In her reasons the learned Federal Magistrate discussed the involvement of a Ms B to provide therapeutic counselling to the children.[1]
[1] Judge Baker Leroux & Leroux [2015] FCCA 2078, paragraphs 124-126
In particular Her Honour observed:-[2]
124.I do not consider it is in the children’s best interests to cease this therapeutic relationship. The children are about to commence family therapy, and they may find that they do not need her support when it starts. However that support should be available to them if they want it.
125. I am not persuaded that a restraint should be made preventing the mother from taking the children to consult with Ms [B].
126. I also consider her report should be made available to the family therapist to provide a complete background of what has occurred with the children, and what the children have said they have experienced. I do not consider it would be helpful, or in the children’s best interests, to restrict the family therapist from reading their therapeutic psychologist’s reports. Ms [G] is a psychologist and she will use her professional judgment about the use she will make of those reports.
[2] Ibid paragraph 124, 125 and 126.
The proceedings were then transferred to the Family Court on the 16 July 2015. On 13 August 2015 the father filed an appeal in relation to the order made by Judge Baker on 16 July 2015. That appeal was abandoned on 10 September 2015.
These proceedings came before me on 21 August 2015, and an issue arose in respect of an application filed by the father in the State Magistrates Court against Ms B in terms of her seeing the children. The father unconditionally undertook to withdraw that restraint order application.
The proceedings came back before me on 16 September 2015 and at that time orders were made confirming that the paternal grandfather was a party to the proceedings, varying the order of the Federal Circuit Court to include the word paternal grandfather after the word paternal grandmother, and other orders.
These included directions for the hearing of the application to remove the Independent Children’s Lawyer.
Part of the material before me was the orders of the Federal Circuit Court made 4 June 2015, 16 July 2015, 21 August 2015 and 16 September 2015.
In early November 2015 the parties were requested to provide a list of the documents on which they relied. The father filed a document on 13 November 2015 purporting to rely on many of his earlier affidavits and submissions, affidavits of his parents, affidavit of experts, transcripts of proceedings in February and June 2015 and numerous other affidavits and documents including subpoena documents.
When the matter came on for hearing the request was narrowed to the relevant documents upon which the father relied in terms of the application to remove the Independent Children’s Lawyer.
The father was limited to the orders and the reasons referred to earlier, his affidavit filed 24 September 2015, his father’s affidavit referred to above and his submissions.
The role of submission, not being evidence gathering process but a submission process, was explained to the father.
The applicable principals and position of the Independent Children’s Lawyer were elegantly set out by Murphy J in Knibbs & Knibbs [2009] FamCA 840 paragraphs 33 to 61. I do not intend to set out each of those paragraphs seriatim but I have had regard to the principals enunciated in them. In doing so I particularly note:-
·I agree with Murphy J’s assessment in that a finding of bias can also be ‘perceived’ in addition to ‘actual’.
·The Independent Children’s Lawyer, whilst in a unique position, has the same professional obligations owed to the Court as has any legal licenced legal practitioner.
·The Independent Children’s Lawyer is obliged to argue firmly and fearlessly for what he or she contends are findings or results consistent with the best interests of the child they represent provided that such submissions are based upon evidence properly and adequately before the Court.
·If the Independent Children’s Lawyer has a view about a particular matter or issue it does not necessarily bring with it a finding of partiality.
·In the circumstances of a particular matter the submissions of the Independent Children’s Lawyer and things said by the Independent Children’s Lawyer may have the appearance of impartiality.
Hannon J in Pagliarella & Pagliarella [1993] FLC 92-400 made it clear that the Court which has the power to appoint an Independent Children’s Lawyer also has the power to revoke. The statutory power to appoint an Independent Children’s Lawyer is now contained in s 68(l) of the Family Law Act 1975 (Cth) (substituted by No. 46 of 2006).
There is clearly a power to discharge any such appointment. This is consistent with the comments of Hannon J in Pagliarella.
Having clear authority to discharge or remove a particular Independent Children’s Lawyer, it is clear from the authorities that the Court ought to be very cautious in doing so having regard to the unique position of the Independent Children’s Lawyer in parenting proceedings.
Murphy J pointed out in Knibbs (supra) that the Independent Children’s Lawyer is an “invidious” position and is obliged to look beyond the assertions and counter assertions, he/she has an obligation to act objectively and impartially but in that context should be no less courageous, no less firm and no less cogent in advocating for results or findings.[3]
[3] At paragraphs 47 to 50 of Knibbs
The task of the Independent Children’s Lawyer includes garnering evidence, the careful presentation of evidence and, in the context of the available evidence, to present a view that the Court prefers some evidence or another.
In this context the Independent Children’s Lawyer’s task is to make submissions, but it is not the role of the Independent Children’s Lawyer or his/her views to decide the case. That is a matter for the Judge.
In addition the Court recognises the important aspects of the Independent Children’s Lawyer to be ‘an honest broker’. In terms of that it is likely that the Independent Children’s Lawyer will challenge the perception, views or sometimes the fundamental parenting philosophies of the parties.
This is a precarious and difficult task and involves the exercise of professional judgment.[4]
[4] Ibid paragraphs 52 to 61.
It is in this context of the law to which I am obliged to consider the father’s application, which is supported by the paternal grandfather.
The Independent Children’s Lawyer justifiably complained about facts asserted by the father in his written submissions. The father had been informed previously, and was informed on the hearing date, that he would need to refer to facts contained in his affidavit material. It is from that starting point that I will address the submissions of the parties.
In the background asserted by the father, he made a number of submissions in respect of the causes of the breakdown of his marriage and his assessment of the mother. Very little of this had relevance to the application before the court.
Similarly, paragraphs 19 through to 25 related to the father’s perception of events and assertion of events well prior to the appointment of the Independent Children’s Lawyer.
The father asserted that the mother is intentionally alienating the children from him and his broader family. Similarly, the father’s assertions regarding his perceptions or understanding of the facts in regard to the initiating application, the alleged alienation of the children from his parents also had little or no relevance to his application to remove the Independent Children’s Lawyer.
The father has expressed serious concerns about Ms B, a psychologist, who has been treating the children. This concern has to be seen in the context of the reasons of Judge Baker in the reasons to which I referred earlier. In many ways the father is seeking to re-agitate the matters which were determined by Judge Baker in July 2015, the orders of which were the subject of the abandoned appeal to the Full Court.
It was only at page 12, paragraph 63, of the father’s application that he sets out the grounds he asserted should base the removal of the Independent Children’s Lawyer. These are set out as follows:-
Ground 1
Failure to recognise and respond to the evidence of alienation
In his affidavit in reply the Independent Children’s Lawyer said:-[5]
I do not, in my preliminary view share that view however, as noted in my correspondence marked in “C” I acknowledge the concerns that the children’s views are hardening towards their Father although my preliminary view is not on the basis of alienation … I do remain open minded that they are being influenced. …
[5] At paragraph 22 of the Independent Children’s Lawyer’s affidavit filed 13 October 2015.
In his letter of 10 September 2015, the Independent Children’s Lawyer reported of a discussion he had with the Ms B, in which the Independent Children’s Lawyer acknowledged the possibility that the mother may be allowing the relationship between the children and the father to deteriorate.
The Independent Children’s Lawyer has a preliminary view but is open to change and based on the evidence as it presently stands is not such as would enable this ground to succeed.
The Independent Children’s Lawyer clearly recognised what the issues were, including the allegation of the father as to alienation and has responded to those assertions as set out in his affidavit at paragraph 7(a).[6]
[6] Ibid.
On the evidence before me, I do not accept that the Independent Children’s Lawyer was ‘quick to prejudge a situation’, nor is he biased. All the Independent Children’s Lawyer has done was identify issues, collect and collate the evidence as it presently stands and express a preliminary view but was open to alternative explanations.
In his letter to the parties dated 13 July 2015, shortly after he was appointed, the Independent Children’s Lawyer set out the material with which he had been provided and expressed to the parties what he was drawing from that, at that time. He then set out what his focus would be and identified the father’s concern as to the question of active alienation.
The Independent Children’s Lawyer was alert to the father’s concerns about Ms B and urged the parties to take steps in that regard. On the information available he expressed and ‘suggests’ that Ms B was neither partisan, polemic or was she engaged ulterior motives.
He set out his thoughts in that respect. He urged the parties to reconsider their ‘combative approach’ such as contravention proceedings delaying the matter. He went on to say he would not take part in that contravention application.
Two days later he wrote to the father and noted two corrections to his letters. He confirmed in that letter that his views were preliminary views and addressed the concerns of the father.
The Independent Children’s Lawyer met with the children on 24 July 2015. He made it clear to the mother that the parties ought not to ask questions or elicit information from the children about their meetings with him. He reported about perceptions the children had given him in relation to questioning by the grandmother about their father, which the children had informed him that they found upsetting.
In that letter the Independent Children’s Lawyer also acknowledged that they believed the children were being alienated by their mother and again raised the question of de-escalating the conflict between the parties.
In his letter to the parties on 10 September 2015[7] the Independent Children’s Lawyer provided a view but then went on to say that it is clearly a matter for an expert. He said that there did not seem to be characteristics consistent with alienation.
[7] Ibid, Annexure C
The Independent Children’s Lawyer went on to say that in his view ‘the mother may not have been proactively encouraging the children to spend time with their father or shielding them from the litigation’.
The essence of the father’s complaint was that the Independent Children’s Lawyer was not operating in an impartial manner. On the evidence before me I am not satisfied that that is the case.
Ground 2
Failure by the Independent Children’s Lawyer to raise notice of risk of abuse or family violence to the Court
The Notice of Risk was part of the documents available to Judge Baker when she heard the contested interim application. She referred to the mother’s Notice of Risk but did not refer to the father’s Notice of Risk.
The father’s Notice of Risk simply set out what was contained in his affidavit in the attached affidavit of the father dated 23 January 2015 in support of Notice of Risk.
As far as I can see, there was no affidavit attached to the Notice of Risk but there was an affidavit sworn 3 February 2015 and filed on the same day and which affidavit was considered by Judge Baker in her Reasons.
The Notice of Risk annexed to the father’s affidavit[8] contains nothing of substance and simply refers to ‘see attached affidavit of [the father] dated 23 January 2015 in paragraphs 2, 3 and see affidavit of [the father] dated 3 February 2015 in support of the Notice of Risk of abuse.
[8] Annexure P page 187 to the Father’s affidavit filed the 25 September 2015.
It is disingenuous of the father to claim that the Notice of Risk which contained no substance was not read by Her Honour when Her Honour clearly read the affidavit to which he referred in that Notice of Risk.
I am not satisfied that this ground is made out.
Ground 3
Independent Children’s Lawyer’s alleged failure to recognise the need for a mental health assessment
The father complains that the Independent Children’s Lawyer has failed to organise an independent mental health assessment to be carried out on the mother.
There is no evidence that the advice from the father’s then solicitor, Ms Ryan, has been provided to the Independent Children’s Lawyer. I take it that the date referred to at paragraph 66 of the father’s affidavit must be August 2015 however, there is no material filed by Ms Ryan.
In the order made by me on 4 September 2015 I requested the preparation of a family report and asked the reporter to provide, as soon as practicable, his or her assessment as to whether one or other of the parties ought to be psychiatrically examined for the purpose of the final hearing.
The Independent Children’s Lawyer deposes, and I accept, that he raised that issue with me and discussed the question of the possible funding of such a psychiatric assessment once the family report is to hand.
This ground upon which the father seeks removal of the Independent Children’s Lawyer is not made out.
Ground 4
Evidence of the Independent Children’s Lawyer forming premature and unqualified views that the mother has not alienated the children
I have dealt with that earlier in these reasons and noted the preliminary nature of the views and the Independent Children’s Lawyer’s openness to rely upon expert evidence.
I accept that it is the role of the Independent Children’s Lawyer to test, and at times challenge, the perceptions of the parties as he has done with both the father and the mother.
The material contained in the annexures to the Independent Children’s Lawyer’s affidavit “A-D” do not support the conclusion that the father seeks to draw from that correspondence and from such submissions as are brought properly before me.
This ground upon which the father seeks removal of the Independent Children’s Lawyer is not made out.
Ground 5
Hearing before His Honour Justice Benjamin 16 September 2015
This is a continuation of the father’s view that Ms B will not be involved in providing therapeutic treatment for the children.
That was not the view of Judge Baker in her reasons of 16 July 2015 when she said one of the issues in dispute before Her Honour was whether the children should continue to attend Ms B for the purpose of therapeutic counselling.[9]
[9] At paragraph 8, Leroux & Leroux [2015] FCCA 2078.
Her Honour particularly considered the role of Ms B in her reasons at paragraphs 104 to 126. As I have said earlier, Her Honour did not consider that it was in the children’s best interests to cease the therapeutic relationship with Ms B. Her Honour was not persuaded that a restraint should be made preventing the mother from taking the children to consult with Ms B.
The father complained that the Independent Children’s Lawyer sought an ‘independent expert report’ from Dr G without discussing the terms of reference with the parties.
The letter forwarded by the Independent Children’s Lawyer to Ms B was in the context of her role as a family therapist and providing information to her. The father had written to the Independent Children’s Lawyer on 27 August 2015 requesting that the Independent Children’s Lawyer do that. He did in the letter of which the father complains.
The father complained that the Independent Children’s Lawyer sought to ‘enlarge terms of reference’ and he asserted this was an attempt by the Independent Children’s Lawyer to arrange for Ms B’s information to be pushed through ‘the back door’.
The father’s view is that she is ‘anti-father’ and ‘partisan’.
On 15 September 2015 the Independent Children’s Lawyer communicated with the parties by email.[10] In doing so the Independent Children’s Lawyer reported a discussion he had with Dr G.
[10] Annexure F to the Independent Children’s Lawyer’s affidavit filed 13 October 2015.
In those circumstances he said he would be seeking to enlarge the terms of reference. That issue was argued the following day before me and orders were made in terms of that sought by the Independent Children’s Lawyer.
The father submitted that the Independent Children’s Lawyer made an ‘emotional outburst’ and again revealed his bias and prejudice towards the paternal family, when he turned and verbally attacked them.
He went on to say ‘this ranting outburst was entirely unjust, inappropriate and undeserved’. The father did not put the transcript of those alleged outbursts and ranting behaviours before the Court. I have no independent recollection of any ‘alleged outbursts and ranting behaviours’ by the Independent Children's Lawyer on that day.
The father endeavoured to place quotes and notes he says he made at the time. There is no evidence that the father sought or obtained a transcript of the evidence that day. If he had sought leave to file further material on that basis he could have done so. He did not seek leave to file further material.
The Independent Children’s Lawyer was properly conscious of funding of this case and made submissions which, in the context of that hearing and the context of the information then available to me, were not as defined by the father.
The use of memory and contemporaneous notes outside the context where the accuracy is not clear is not, in my view, an acceptable way for that evidence to be given by the father, particularly where he asserts that they are actual quotes of what was actually said. His solution was clearly to obtain a transcript, which apparently did not occur.
The father complained that the Independent Children’s Lawyer had inappropriately attempted to put Ms B across as someone who attempted to facilitate time when she had not met with the grandparents. The Independent Children’s Lawyer put forward submissions based on extracts from Ms B’s records which inferred, although untested, a positive relationship between the grandparents and the children.
As to paragraph 77 of the father’s affidavit, I am not satisfied that the submission was, in the circumstances as they then stood, inappropriate. Given the evidence before the Court there are two reasonable questions to ask and to express concerns about the intensity of the litigation.
The Independent Children’s Lawyer provided reasonable explanations for what was said in the context of his submissions at that time. Paragraph 79 by its nature is submission from the father’s perspective. Similarly, paragraphs 80, 81, 82 and 83.
The father’s criticisms of the Independent Children’s Lawyer for not obtaining immediate and urgent reports was properly answered by the Independent Children’s Lawyer in terms of the best use of the available and limited legal aid funds.
As to paragraph 80 of the father’s affidavit, given the context of the proceedings set out earlier, that the Independent Children’s Lawyer had interviewed the children and they reported to the Independent Children’s Lawyer in July 2015 that they had been affected by the intensity of the litigation,[11] given all of the matters contained in that letter, that is an entirely reasonable submission for the Independent Children’s Lawyer to make.
[11] Ibid Annexure B.
These issues and those of alienation may or may not turn out to be accurate. These will be tested at a final hearing.
The father complains that the Independent Children’s Lawyer has not pursued Dr G for a report. At the time of these proceedings the interaction between the children and Dr G had barely started, his complaint that this did not occur was too early and was the subject of a balanced reply by the Independent Children's Lawyer.
The father contends in his affidavit[12] that the Independent Children’s Lawyer has failed to seek an opinion from Dr G in a timely manner. Given the circumstances and the facts provided to me, I do not agree with that assertion.
[12] At paragraph 84 of the father’s affidavit filed 25 September 2015.
The submission made by the Independent Children’s Lawyer as to the non-curial paper delivered by Dr Tom Altobelli in an academic sense was not the subject of any testing as the question of alienation or otherwise will be a matter for final hearing.
The father complained that the Independent Children’s Lawyer has not acknowledged or acted properly upon the positive comments contained in the Contact Centre report. In his letter to the parties of 15 July 2015 the Independent Children’s Lawyer noted that:-[13]
…The father’s interaction with the [Contact Centre] has been appropriate, child focused and sensitive; …
[13] Annexure B, page 2 to the Independent Children’s Lawyer’s affidavit filed 13 October 2015.
The father asserted that there was an undue delay in the family therapy between the children and Dr G, and there had only been one attendance as at late September 2015.
Given all of the evidence to which I have alluded elsewhere in these reasons in relation to Dr G, I do not accept that there is a factual basis to the assertion made by the father.
Finally, in terms of this complaint, the father asserted that the Independent Children’s Lawyer ignored and failed to act upon the recommendation of the Family Consultant in the Memorandum to the Court of May 2015.
Given that the report of the Family Consultant was before Judge Baker when she made her orders on 16 July 2015 and that she specifically provided for supervised time at the Contact Centre and that the Independent Children’s Lawyer has referred to that report, this complaint is not made out.
The multiple complaints contained in this ground, upon which the father seeks removal of the Independent Children’s Lawyer, are not made out.
Ground 6
Conflict of interest
In Bosgard & Bosgard [2013] FamCA 308 His Honour Justice Fowler set out the test with regard to conflict of interest. It is:-
48.In Bowen v Stott [2004] WASC 94 at [52]–[53], his Honour Hasluck J said:
52. …the rationale for intervention upon the third ground (that the Court may intervene where restraining the solicitor is in the interests of the Court exercising proper control over the conduct of an officer of the Court) [parenthesis added] is a recognition that the integrity of the legal process and of the Court function might be undermined if it were thought that solicitors or counsel did not possess the objectivity and independence which their professional responsibilities and obligations to the Court require of them.
53. The most obvious case in that regard would be a situation in which a solicitor had some direct pecuniary interest in the outcome. It might seem to an independent observer that a solicitor, notwithstanding his best efforts to be impartial and objective, might adjust his evidence in some way to procure a result that suited his interest. The decided cases suggest also that the same principles apply in circumstances where a solicitor might feel impelled to justify or defend his conduct in representing a client, notwithstanding that the solicitor did not have any specific pecuniary interest in the outcome other than the obtaining of professional fees.
49.Whilst the power of the Court to restrain a solicitor from acting is one in which it should exercise with caution, the Court in this case, having regard to the several matters referred to above, is satisfied that this is a clear case for the exercise of its power. In the interests of maintaining the integrity of the justice system it is inappropriate for this solicitor to continue to act for the husband. The Court is satisfied that a fair-minded lay observer would conclude that the proper administration of justice and the appearance of justice requires the practitioner to be prevented from acting.
The issues of the Legal Aid Commission providing, not directly through the Independent Children’s Lawyer, but through other some assistance to both the father and mother in various ways, was raised with the parties in June 2015. The father acknowledged receiving the letter and waived any conflict that may have existed.
The father commenced his application for removal of the Independent Children’s Lawyer on 9 September 2015. The Independent Children’s Lawyer had been appointed by order made in the Federal Circuit Court on 4 June 2015.
On 22 June 2015 the Independent Children’s Lawyer wrote to the parties or their legal representatives to ask the parties whether they had concerns with the Independent Children’s Lawyer being allocated to an in-house practitioner of the Legal Aid Commission of Tasmania. That letter set out some history of interaction between the Legal Aid Commission and the father in 2007, the mother with a legal aid solicitor in relation to the Safe at Home Program and interviews and duty assistance provided by a Legal Aid Duty Solicitor.
The letter set out a clear outline of the law regarding conflict and bias and then asked each of the parties if they had concerns as to an in-house solicitor being appointed.
On 7 July 2015, about two weeks later, the father wrote to Mr Fitzgerald acknowledging receipt of the earlier letter and indicating that he had no objection to an in house practitioner being appointed.
Less than two calendar months after that letter had been sent the father lodged and filed his application for the removal of the Independent Children’s Lawyer.
Some of the material upon which the father sought to rely occurred after 9 September 2015, not that this in itself is a problem, however, the father’s adverse perceptions of the Independent Children’s Lawyer seemed to have grown over that period between 9 and 16 September 2015 and since that time.
The volume of correspondence and the detail to which the father has gone into relation to his application is quite considerable.
The father then asserted that the Chairman of the Legal Aid Board of Tasmania is a managing partner of a legal firm which has apparently, from time to time, acted for C School.
The conflict asserted by the father at paragraph 94 of his affidavit is so remote as to not fall into those which could be considered a conflict.
Similar comments can be made in relation to Mr Zeeman and is likewise so remote as to not fall into those which could be considered a conflict.
As to paragraph 96, the father complains that the Independent Children’s Lawyer previously sat on the committee of Relationships Australia Tasmania, which has control over the Contact Centre, which was or is to provide supervision service in this matter. The basis upon which that claim of conflict of interest is made does not appear from the evidence. Furthermore, the evidence of the Independent Children’s Lawyer is that he has not been a member of that Executive for about two years.
The father complains that a lawyer employed by the Legal Aid Commission of Tasmania went to the same high school as the mother and has a child in the class where one of the children attend school. The evidence of the Independent Children’s Lawyer is that this lawyer is a solicitor assigned to the Legal Aid Commission, however, she works in a separate division and has no access to the file.
In any event the connection raised by the father is so tenuous that in itself it would not have given rise to the assertion that he makes.
The complaints contained in this ground, upon which the father seeks removal of the Independent Children’s Lawyer, are not made out.
Ground 7
Lack of impartiality
At paragraphs 99 to 109 of his affidavit the father asserts that the Court was given a copy of Ms B’s report, but that the Independent Children’s Lawyer failed to provide a preliminary report from Dr G.
I again refer to the remarks made by Judge Baker in her reasons for the interim parenting orders and the comments I have made regarding Ms B elsewhere in these reasons. I also refer to the comments made on the father’s request for an early report, I have dealt with this earlier.
The test for bias is set out in Kingley & Arndale (No. 2) [2010] FamCA 968 where O’Reilly J discussed the question of bias in terms of an Independent Children’s Lawyer saying:-
33.In Johnson & Johnson (2000) 201 CLR 488 at [11]-[14], the majority made clear that the test for the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the question the judge is required to decide. By analogy, I would interpolate that in relation to an independent children’s lawyer the appearance of bias may be tested by whether a fair‑minded lay observer might reasonably apprehend that the independent children’s lawyer might not bring an impartial or unprejudiced mind to the task of independently representing a child. In Johnson, their Honours made clear also that the hypothetical fair-minded lay observer of conduct is postulated in order to emphasise that the test is objective. See also Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8].
Therefore the question is whether a fair minded lay observer may reasonably apprehend that this Independent Children’s Lawyer might not bring an impartial and unprejudiced mind to the task made clear and also that the hypothetical fair-mind observer of conduct is postulated in order to emphasise that the test is objective.
The complaint contained in this ground, upon which the father seeks removal of the Independent Children’s Lawyer, is not made out.
Bias
In terms of this ground the father complained first that the Independent Children’s Lawyer handed up the report of Ms B, but had not provided what he thought was the preliminary report from Dr G.
Given the circumstances to which I have alluded earlier, I am not satisfied that this would fall within the definition of perceived bias as is implicitly asserted by the father.
Similarly in paragraph 100 of his affidavit, the father submitted that the Independent Children’s Lawyer is dependent upon and influenced by the views expressed by the mother and Ms B, notwithstanding what he perceives is the repeated messages coming from the children as reported directly to the Independent Children’s Lawyer.
Given the facts to which I have referred to earlier and given the response in evidence of the Independent Children’s Lawyer at paragraph 58 and 59 of his affidavit material and given his comments at paragraph 60, I am not satisfied, in those circumstances, that apprehended or actual bias is established on this evidence.
As to paragraph 1 of the father’s affidavit, there seems to be a submission that the Independent Children’s Lawyer has formed a prematurely partisan view from the preliminary evidence.
Given the matters referred to earlier and the careful language used by the Independent Children’s Lawyer both in his letters and also in the submissions and his evidence, I am not satisfied that it meets the reasonable apprehension test which I have to apply.
As to paragraph 102 of the father’s affidavit, much of this relates to correspondence passing between the father and the mother’s legal practitioners. That is of course not directly relevant to this determination. It is the explicit submission that the Independent Children’s Lawyer has joined with the mother’s solicitors in what the father claims is harassment and endeavour to subdue the father by correspondence.
In this paragraph the father seems to attach responsibility to the Independent Children’s Lawyer as to this previous correspondence when he says it [presumably the correspondence] contains frivolous and false allegations, accusations and innuendo by the mother, her solicitor and Ms B. The father asserted:-[14]
…The correspondence has been burdensome, repetitive, meritless unwarranted and has had negative impact on my health and wellbeing.
[14] At paragraph 102 of the father’s affidavit filed 25 September 2015.
The correspondence from the Independent Children’s Lawyer which was contained in the affidavit of the father and the affidavit of the Independent Children’s Lawyer do not, from an objective point of view, fill that criterion.
As such this asserted fact cannot base the bias application.
Finally, the father makes an assertion that:-
103.Outside court, before the Registrar, the [Independent Children's Lawyer] stated to me that he ‘would not oppose’ an external family consultant, but he later did oppose this in court before His Honour Justice Benjamin on 4 September 2015. This incident has led to a breach of trust between the ICL and myself and lack of confidence in the ICL by me, as the father of their children, more importantly the implications of that for our children.
The Independent Children’s Lawyer objected to this evidence on the basis of ‘best evidence rule – transcripts speak for itself’, contained in Annexure B of his application in a case filed 1 October 2015. I accept and adopt that submission.
In addition in his affidavit in reply the Independent Children’s Lawyer deposed that:-
60.At no time did I indicate I “supported” an external appointment nor saw the necessity for one.
Again on that evidence I am not satisfied that that evidence gives rise to the reasonable apprehension referred to earlier.
As such the father’s application based on the ground of ‘bias’ (whether actual or perceived) must fail.
Ground 8
Overfamiliarity with the Independent Children’s Lawyer and the mother’s solicitor
This complaint must fall into the category of bias. The father asserts that in the context of these proceedings that the mother’s lawyer, Mr Blissenden, and the Independent Children’s Lawyer have referred to each other from time to time as “Rob” and “Pat” and on one occasion Mr Blissenden referred to the Independent Children’s Lawyer as “Pat” in electronic correspondence.
In his evidence in reply the Independent Children’s Lawyer acknowledged that he and Mr Blissenden occasionally refer to each other by their first names.
In relation to the email annexed to the father’s affidavit, the Independent Children’s Lawyer wrote to him on 3 August 2015[15] responding to Mr Blissenden’s email, to which the father was included, by saying the following:-
Dear Sirs,
Though [the father] should not read too much into it; in the circumstances I would ask correspondence be in the usual formality – sir or Mr Fitzgerald
[15] Annexure K to Independent Children’s Lawyer’s affidavit filed 13 October 2015.
I am not satisfied that that factual circumstance is such as would create the unreasonable apprehension referred to earlier.
In paragraph 106 of his affidavit the father complained that the Independent Children’s Lawyer greeted the mother with a warm smile and was cold towards the father. He provides some examples of this.
In his affidavit in reply the Independent Children’s Lawyer says the following:
64.As to paragraph 106, I did not deliberately intend to convey the impressions asserted. As [the mother] was represented any ‘smile’ was simply a courteous acknowledgement of her presence – without physically meeting her. As I was dealing directly with [the father] I wished to convey a business like relationship rather than one marked by familiarity. Any “coldness” was simply me trying to be businesslike.
I am not satisfied that this factual scenario is such as would give rise to the reasonable apprehension referred to above.
The father complains that on 16 July 2015, prior to court resuming before Judge Baker the Independent Children’s Lawyer removed himself from the court room to speak with the mother and/or the mother’s solicitor. His view was so that the conversation could not be recorded leaving him ‘in the dark’.
He was concerned there were ‘secret’ conversations which took place between the Independent Children’s Lawyer, the mother and her legal practitioner. It is and ought not be a requirement that the Independent Children’s Lawyer only meets with parties or their representatives in the presence of the other party.
That would impose an enormous burden on Independent Children’s Lawyers and has the capacity to undermine their ability to be an ‘honest broker’ between the parties. All licenced legal practitioners, including Independent Children’s Lawyers, are bound by rules of ethics and guidance.
The only evidence as to what happened in that meeting was that of the Independent Children’s Lawyer, who said that the purpose of the meeting was to introduce himself and explain the role as the Independent Children’s Lawyer. He observed that he met with the father and explained his role as well, this being the Independent Children’s Lawyer’s usual practice.
It is not clear as to what conversations the father sought to have ‘recorded’ in the court room. Certainly the proceedings are recorded, however it is not the intention of those recording devices to provide access to the parties, their legal advisors or judicial officers to listen to recordings made outside the context of the proceeding before the Judicial Officer.
I am not satisfied that this factual basis gives rise to the reasonable apprehension to which I referred to earlier.
The Independent Children’s Lawyer provided further explanations of what happened at that time at paragraphs 67 and 68 of his affidavit filed 13 October 2015. A further complaint by the father is where the father protested the nature of a discussion he had with the Independent Children’s Lawyer regarding attending one of the children’s sporting games.
It is the view of the father that this was not properly managed or attended to. The evidence of the Independent Children’s Lawyer was that he agreed that he was open to the father attending soccer matches given the reasonably positive reports from the Contact Centre, and that he raised that with the mother and her legal representative. He subsequently spoke with the child and conveyed his view to the parties.
I am not satisfied that those facts give rise to the reasonable apprehension to which I referred to earlier.
The father raised the issue of Ms B again in paragraph 109 of his affidavit. The Independent Children’s Lawyer quite rightly said that this issue had been estopped given the determination in the Federal Circuit Court on 16 July 2015. This is a continuation of the father’s views in relation to Ms B. I am not satisfied on the evidence before me that this gives rise to the reasonable apprehension of bias to which the father complains.
Paragraph 110 and 111 of the father’s affidavit do not seem to be relevant to the complaint about impartiality or bias. One relates to the written submissions made by the father to Judge Baker on 4 June 2015 and the second is in relation to correspondence about appointment of an Independent Children’s Lawyer. The Independent Children's Lawyer raises an objection to paragraph 111 on the basis that it was an abuse of process; it was not possible to answer and was too broad. I accept that submission.
I have considered all of the allegation of bias or lack of impartiality and grounds 8 or 9 specifically or generally, and I am not satisfied singularly or cumulatively, that they give rise to a perception of bias by the Independent Children’s Lawyer.
As such the father’s application based on these asserted grounds must fail.
Ground 9
Independent Children’s Lawyer to disclose relevant false information provided by thirteen year old daughter concerning an ‘incident’ on 2 September 2015
In paragraph 112 of his affidavit the father asserted:-
112.The ICL failed to disclose relevant information to His Honour Justice Benjamin at the hearing on 16 September 2015 nor did not refer the matter to psychologist [Ms [G]] for professional interpretation and assistance. Annexed hereto and marked “V” is a copy letter from the [Independent Children's Lawyer] dated 9 September 2015 in relation to the incident on 2nd September 2015. This is covered by the [Independent Children's Lawyer] in the last sentence of the 1st page under the subheading ‘Events of 2nd September 2015’ and continuing onto the 2nd page.
For the sake of clarity I note that the Independent Children’s Lawyer sets out the following in annexure ‘V:-
…I note the father was arrested for an alleged breach of the Family Violence Order by being within 100 metres of the School. I note he has provided a Statutory Declaration which clearly indicates that it would have been, if accepted, physically impossible for him to have been at the School at the time asserted.
What troubles me is that [the child] said to me, in our meeting of 2 September 2015, that she saw her Father in his [vehicle] and that he “waived at me”. Quite clearly, she made a positive identification of the father, as opposed to a fleeting observation. It seemed to the writer, therefore, that there are the following scenarios:-
1.[The child] has deliberately told the mistruth intended to deceive;
2.Despite the father’s statutory declaration, he was present at school as alleged by [the child]; or
3.[The child] misidentified the father with someone of similar features.
The Independent Children’s Lawyer went on to set out his concerns about what troubled him in relation to that issue. This letter was sent to each of the parties or their legal representatives.
The father then goes on to say what happened in the criminal context and gives his views as to the three scenarios provided by the Independent Children’s Lawyer.
The Independent Children’s Lawyer reasonably asked the question, in his affidavit, as to what complaint needs to be addressed in terms of the Independent Children’s Lawyer.
The factual circumstances as to the events on 2 September 2015 may need to be considered as part of a final hearing in the context of the parties interaction between each other.
There is nothing in the evidence before me which causes me to be concerned that this either separately or as part of a course of conduct could give rise to the reasonable apprehension to which I referred to earlier.
As such the father’s application based on this asserted ground must fail.
Ground 10
Improper Father’s Day arrangements
The father complains that the Independent Children’s Lawyer failed to ensure arrangements were put in place so that the children could spend time with him on Father’s Day in September 2015.
The father annexed a letter to his affidavit dated 2 September 2015[16] referring to previous correspondence and reiterating his concerns about spending time with the children on 6 September 2015.
[16] Annexure X of the father’s affidavit filed September 2015
In response to that complaint the Independent Children’s Lawyer responded[17] where he sat with the children on that day to explore them spending time with the father on Father’s Day and reported to the parties on an email of the same day.
[17]At paragraph 74 Independent Children’s Lawyer’s affidavit filed 13 October 2015.
Given that interview the Independent Children’s Lawyer expressed the following:-[18]
Given the children’s expressed resistance I suspect “forcing” time this Sunday would be counter productive.
[18] Ibid Exhibit M.
The Independent Children’s Lawyer, on the material before him and with that interview, is entitled to express that view. I am not satisfied that it either separately or part of a group falls within the list that may give rise to the reasonable apprehension to which I have referred to earlier.
As such the father’s application based on this asserted ground must fail.
Ground 11
Independent Children’s Lawyer failing to request a preliminary report from psychologist Dr G
The father complained that the Independent Children’s Lawyer had not obtained an independent report at that time. The father asked the Independent Children’s Lawyer to write to Dr G seeking certain answers.
The following day the Independent Children’s Lawyer wrote to Dr G[19] enclosing some material noting the parties were to provide information to her of the documents they had filed and providing an outline of material on subpoena. He then asked questions which were in very similar terms to that sought to be asked of her by the father in his letter the preceding day.
[19] Ibid Exhibit N.
The difference seems to have been that the Independent Children’s Lawyer asked that this be provided following three months intervention by Dr G.
On 1 September 2015, some few days after the letter was sent to Dr G, the father wrote to the Independent Children’s Lawyer acknowledging the letter of 27 August 2015 (and sending the preliminary report from the clinical psychologist) presumably this was in fact the letter of 27 August 2015 and quoting provisions from the orders of the Federal Circuit Court of 4 June 2015.
In his reply of 1 September 2015 the father said he would be agreeable to contributing one third of the cost of the report and sought the support of the Independent Children’s Lawyer seeking a quote from Dr G for this early report.
On 2 September 2015 the father sent a letter or email to the Independent Children’s Lawyer noting that it is clear from the order of Judge Baker that the psychologist who will be working with the children for therapeutic counselling is Dr G.
This was the subject of some further discussion and earlier clarification made by me and contained in notation 7 of my orders made 21 August 2015 which was referred to in notation 14 in my orders of 4 September 2015.
The father went on to say at paragraph 132 that he wrote to the Independent Children’s Lawyer on 1 September 2015[20] concerning his assessment of the orders made by Judge Baker.
[20] Exhibit Z to father’s affidavit filed 25 September 2015.
Given consideration of the orders and notations made by me on 21 August 2015, 4 September 2015 and 16 September 2015 the father has not established the reasonable apprehension either individually or holistically to establish the ground he seeks.
Ground 13
Independent Children’s Lawyer’s letter to psychologist Dr G
The father wrote to the Independent Children’s Lawyer on 2 September 2015 complaining about Dr G undertaking therapeutic counselling for the children. This complaint against the Independent Children’s Lawyer is not clear.
The complaint is not one which gives rise either singularly or cumulatively in terms of the reasonable apprehension to which I referred earlier.
Affidavit of paternal grandfather sworn and filed 9 November 2015
This affidavit contained some background in paragraphs 1 to 7, including that the affidavit was filed in support of the father’s application to remove the Independent Children’s Lawyer.
Paragraphs 1 to 10 on pages 3, 4 and 5 of the paternal grandfather’s affidavit contained hearsay submissions and argument which were irrelevant to the determination before me.
Similarly paragraphs 11 to 27 purported to deal with supporting the father’s assertion of bias. Much of the material contained in those paragraphs was submission or conclusion, not supported by fact and in many respects was scandalous. There were some assertions of fact in those paragraphs which I have considered in the context of the evidence and discussion elsewhere in these reasons.
Paragraphs 28 to 31 relate to the view of the father and the view of the grandparents about Ms G, and I refer to comments made in relation to same elsewhere in these reasons and the determination of Judge Baker on 16 July 2015.
In paragraphs 32 to 38 of his affidavit the paternal grandfather made submissions and asserted facts in relation to the underlying conflict and issues to be determined at a final hearing of these proceedings. Paragraphs 39 to 42 fall into that same category.
As to paragraph 43 of the paternal grandfather’s affidavit I have dealt with the issues arising out of 2 September 2015 incident earlier in these reasons.
Paragraph 44 is submission and is scandalous.
At paragraph 45 and 46 the paternal grandfather has endeavoured to give evidence on behalf of Dr G. He is unqualified to do so.
As to the interaction between Dr G and Ms B, I have dealt with that elsewhere in these reasons.
I have addressed paragraphs 51 to 70 in general terms in earlier discussions in these reasons and, again, these seem more of a submission rather than evidence although there are some aspects of evidence contained to which I have had regard.
Similarly paragraphs 71 to 82 are by their nature submissions.
I accept that this affidavit was prepared by the paternal grandfather who is unrepresented. I have considered that in the context of its weight.
The father’s submissions
On 25 September 2015 the father filed written submissions in accordance with directions made by me.[21] Paragraph two of the submissions sets out where the father obtained advice in relation to preparing the submissions. Paragraphs three to 32 set out what the father submits are the fundamentals in the actions of an Independent Children’s Lawyer.
[21] Document 105 on the Court File.
There were some objections taken to these by the Independent Children’s Lawyer and it appears that some of these submissions have some underlying foundational issues as set out in annexure A to the Independent Children’s Lawyer’s application in a case filed 1 October 2015.
I do not intend to go through each one of those grounds separately. I have considered all of the relevant submissions in the context of the affidavits, reasons and orders which were before me.
In many ways the father wished to use this document as some sort of evidentiary base. It contains inadmissible evidence, irrelevant material, and opinion, some of the assertions are not supported by evidence, some of the submissions are misconceived. In terms of the father’s submissions; such parts of them as have addressed the facts before me, I have considered. Similarly, with the limited facts contained in the paternal grandfather’s affidavit, I have considered those in terms of the father’s contentions.
The father complained during submissions that he was not permitted to file any further material. It was clear in the order that he could not file any further material except for the leave of the Court. It was open for him to apply to the Court for leave should he desire to do so. He did not.
The father made detailed submissions in relation to events in court which he asserted were accurately recorded in his affidavit. The best evidence of those was contained in the transcript which were not ordered by or produced by the father.
In his submissions filed 9 November 2015 the father set out a series of submissions. The first three paragraphs have been dealt with elsewhere in these reasons.
The father made submissions as to fact which was not contained in his affidavit and therefore could not be considered in the context of the evidence and its application to the law.
Paragraphs 15 to 18, seem, in part at least, to address the facts which the father asserted in the first part of his submission and in so far as it addresses the assertions of fact in the father’s affidavit have been dealt with earlier.
The second source of bias is set out in paragraphs 19 to 33 and include assertions by the father of mother-son role reversal relationship and triangulations and coalitions. Much of this is an endeavour to put evidence before the Court, at some levels expert evidence before the Court, which is not contained in the affidavit. Much of it is outside the scope of legitimate submission.
I have dealt with this in the material referred to earlier or in terms of my general criticism of this submission regarding evidence relevance and the like. I make similar comments in relation to that under the heading of ‘development for maturity’ paragraph 7 through to 53 on pages 7, 8 and 9 of those submissions.
In his concluding written submissions the father reiterates his complaints against the Independent Children’s Lawyer and this is dealt with by material set out earlier in these reasons.
The father complained during his oral submissions that the Independent Children’s Lawyer had 28 days to prepare his reply and the father only had seven days from 16 September 2015. That complaint is vacuous.
As at 9 September 2015 the father had formed a view that the Independent Children’s Lawyer ought to be removed. He had prepared and filed an application and an affidavit which had been prepared in advance. That affidavit was flawed.
To enable the father to provide the evidence upon which he relied the Court gave him a second opportunity. This must be seen in the context that the father wanted this application heard as soon as possible and was seen in the context that the father had clearly considered the basis for removing the Independent Children’s Lawyer as set out in paragraph 8 of his affidavit filed 9 September 2015, but without the underlying facts.
I do not accept that the father was unreasonably restricted in time given that history.
At the conclusion of the oral submissions made by the father and counsel for the Independent Children’s Lawyer the father had expressed concerns that he had not been provided with the list of cases by counsel for the Independent Children’s Lawyer. Given that concern I made directions for the father to file any written submissions regarding the case law, to the Court, within a limited period of time. Submissions were received on the 30 November 2015. I have read those submissions and all of the submissions have been considered in the context of the overall determination. The submissions as to the jurisdiction and power to remove the Independent Children's Lawyer were not in issue, this Court clearly has both jurisdiction and power as expressed earlier in these Reasons.
As to the assertion that the Independent Children's Lawyer acted contrary to the child’s interests, such as the submission that the Independent Children's Lawyer allegedly failed to inspect some documents; that contention does not withstand forensic scrutiny. I am not satisfied that the evidence shows that the Independent Children's Lawyer was other than competent, professional and objective, an assertion alone does not give rise to such a serious finding.
The father’s assertion that the Independent Children's Lawyer ‘failed in his duty of care’, breached some ‘fiduciary duty’ or was somehow behaving in a way that was a ‘conflict of interest’ lacked definition as to what the father precisely meant by these terms and in any event the evidence does not support such serious claims. In many ways they seem to be thrown as a cluster of professionally insulting terms in the hope that the mud would stick and were made without any meaningful base, apart from the father’s concerns or perception that the Independent Children's Lawyer was not on his side.
The father submits that he provided ‘quality, clear, cogent and substantiated evidence’ for the removal of the Independent Children's Lawyer. That evidence did not reach any such levels and did not support the father’s contentions. The 30 November 2015 submissions were a repetition of those already made by the father, such as best interests, impartiality and the like.
SUMMARY
The Independent Children’s Lawyer needs to do his job. He needs to apply his skills which he has learnt over very many years and not to have to second guess every word he utters and every preliminary view he may take, given the context of his other evidence. It is not a matter for a litigant to endeavour to micro manage the Independent Children’s Lawyer or critique the Independent Children’s Lawyer with every step he takes.
The father is clearly intelligent, highly articulate and motivated. He is, at times, obsessed with details such as his careful word for word recording of what is said in court to the extent that he is able to reproduce such material without the benefit of a transcript.
There are some 240 annexures to the father’s affidavit in the context that this was prepared two to three months after the Independent Children’s Lawyer was appointed.
Very little in this world is perfect. From the evidence before me it seems that the Independent Children’s Lawyer has adopted a careful and balanced approach with regard to his role in representing the interests of the children.
He is collecting evidence. He is testing the views of the parties and he is, legitimately, questioning the intensity of the litigation that is currently underway.
The Independent Children’s Lawyer is entitled to express preliminary views in the careful and thoughtful way in which he has done, leaving open the need to change and the impact of other evidence including expert evidence.
I have considered all of the evidence before me and I have considered the relevant parts of the father’s submissions. In the context of considering all the evidence I have considered that evidence, albeit untested, in the paternal grandfather’s affidavit.
I have not accepted the evidence which the father sought to set in place contained in his submissions and his supplementary submissions. I have considered those submissions in the light of the evidence before the Court and I am not satisfied that the Independent Children’s Lawyer ought to be removed from that role for these children.
Given the facts and circumstances set out above the father’s application for the removal of the Independent Children’s Lawyer should be dismissed and I order accordingly.
In terms of the costs application by the Independent Children’s Lawyer I have reserved the same. When the proceedings are completed it will be open for the Independent Children’s Lawyer, should he so wish, to pursue that costs application.
This expression is not to be taken as either encouragement for the Independent Children’s Lawyer to do so nor discouraging him from doing so. Nor is it to be taken as any indication that I would or would not make a costs order.
I certify that the preceding two hundred and twenty eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 December 2015.
Associate:
Date: 17 December 2015
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