Letchford & Havel (No 2)
[2023] FedCFamC2F 684
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Letchford & Havel (No 2) [2023] FedCFamC2F 684
File number(s): ADC 2366 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 6 June 2023 Catchwords: FAMILY LAW – CHILDREN – interim proceedings –application for the discharge of the Independent Children’s Lawyer – where the mother filed an affidavit without leave – where such affidavit was considered by the Independent Children’s Lawyer – where it is alleged that the Independent Children’s Lawyer is biased, or perceived to be bias – consideration of the statutory duty of an Independent Children’s Lawyer – consideration of the grounds to warrant the removal of an Independent Children’s Lawyer – considerations of whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer is biased or impartial – consideration of procedure – best interests of the child Legislation: Family Law Act 1975 (Cth) ss 68LA, 117 Cases cited: Bradshaw & Bradshaw [2022] FedCFamC1F 930
Dean & Susskind [2012] FamCA 897
Dickens & Dickens [2016] FamCA 115
Ebner vs Official Trustee in Bankruptcy (2000) 205 CLR 337
Horner & Horner [2018] FamCA 487
Johnson & Johnson (2000) 201 CLR 488
Kennedy & Peyton [2022] FedCFamC2F 366
Kingley & Arndale (No 2) [2010] FamCA 968
Knibbs & Knibbs [2009] FamCA 840
Leroux & Leroux [2015] FamCA 1128
Lim & Zong (2021) FLC 94-048
Lloyd & Lloyd & Child Representative (2000) FLC 93-045
Paco & Racina [2014] FamCAFC 195
Sawyer & Sawyer [2015] FamCA 982
T & L (2000) 27 Fam LR 40
Vale & Vale [2016] FamCA 307
Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 25 May 2023 Place: Adelaide Counsel for the Applicant: Mr Dillon Solicitor for the Applicant: ASW Lawyers Counsel for the Respondent: Ms Hume Solicitor for the Respondent: Clelands Lawyers Adelaide Counsel for the Independent Children's Lawyer: Mr Boehm Solicitor for the Independent Children's Lawyer: Ms Atchison ORDERS
ADC 2366 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LETCHFORD
ApplicantAND: MR HAVEL
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE DICKSON
DATE OF ORDER:
6 JUNE 2023
THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 5 May 2023, the mother’s Response to an Application in a Proceeding 23 May 2023 and the Independent Children’s Lawyer’s Response to Application in a Proceeding tendered 25 May 2023 (the ‘said applications’) are hereby dismissed.
2.The father and the mother each bear their own costs of and incidental to the said applications.
3.Within twenty-eight (28) days of the date hereof, the father and the mother do each pay the sum of $952.50 plus GST to the assignments section of the Legal Services Commission of South Australia on account of costs incurred by the Independent Children’s Lawyer in relation to the said applications.
AND IT IS FURTHER ORDERED THAT:
4.The children, X born 2016 and Y born 2018 (‘the children’), do spend time with the father as follows:
(a)From 10:00am Saturday until 5:00pm Sunday commencing 24 June 2023 and each alternate weekend thereafter;
(b)On Father’s Day 2023 from 9:00am to 5:00pm (or such other times as may be agreed between the parents);
(c)On the child X’s birthday in 2023 at times to be agreed in writing between the parents, or failing agreement from 9:00am until 1:00pm.
(d)At such other times as may be agreed between the parties in writing.
5.All time spending between the father and subject children shall be supervised by the paternal grandmother or such other persons as may be agreed between the parties in writing.
6.Within twenty-four (24) hours of receipt of a written request from the Independent Children’s Lawyer, the father do undertake a random urinalysis drug screen to be completed in accordance with the protocols set out in AS:NZ4308:2008.
7.The father shall be responsible for all costs associated with any urinalysis drug screen undertaken in accordance with the provisions of paragraph 6 hereof.
8.The father shall provide to the mother’s solicitor and the Independent Children’s Lawyer a copy of the results of any random urinalysis drug screen undertaken in accordance with paragraph 6 hereof within forty-eight (48) hours of receipt of same.
9.The father shall advise in writing, the mother’s solicitor and the Independent Children’s Lawyer, the outcome of any drug testing undertaken within seventy-two (72) hours of being notified of the test results and if possible, provide written confirmation from the testing authority or the Department of Correctional Services of the results of such testing.
10.The father shall advise the mother’s solicitor and the Independent Children’s Lawyer in writing of the outcome of each Magistrates Court hearing in respect of the criminal charges he is currently facing within forty-eight (48) hours of the completion of each such hearing.
11.The father shall advise the mother’s solicitor and Independent Children’s Lawyer in writing if he is charged with any further criminal offence including specific details of the allegations supporting such charge and if possible, a copy of the Information or Summons.
12.The father shall continue to engage with drug and alcohol counselling to address his substance misuse issues with Ms B.
13.The father do file and serve a report no later than 31 August 2023 from Ms B setting out all appointments including missed or rescheduled appointments, the issues discussed in counselling, the progress made to address the issues identified in counselling and any Relapse Prevention Plan developed in such counselling.
14.Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 16 October 2023 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon his/her relationship with the father if the Court made orders as sought by the mother;
(d)the impact upon the children and upon his/her relationship with the mother if the Court made orders as sought by the father;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
15.Not later than 4:00 pm seven (7) days from the date hereof the parties must provide their contact telephone numbers and email addresses to …@...
16.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
17.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
18.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Any information received from the Embedded Co-Located Officers from SAPOL or the Department of Child Protection and
(b)If applicable, any section 91B report provided by the Department of Child Protection.
19.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
20.Unless a party objects in writing within fourteen (14) days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
21.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
22.The parties are to attend a Family Dispute Resolution Conference at the Legal Services Commission on a date and time to be organised by the Independent Children’s Lawyer following the production of the Family Assessment Report and prior to the directions hearing date set out herein.
23.All interim parenting applications are otherwise dismissed.
24.Proceedings be adjourned to Monday, 13 November 2023 at 10:00am at the City C Circuit, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols with any legal representatives for either party in Adelaide have leave to appear by telephone.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Letchford & Havel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings concern an interim application brought by the respondent father to discharge Ms Nicola Atchison as Independent Children’s Lawyer for two children, namely X, born 2016 and now aged six years, and Y, born 2018 and now aged five years (‘the children’).
The application is opposed by the applicant mother and the Independent Children’s Lawyer.
For the Reasons set out herein the father’s application shall be dismissed.
BACKGROUND
The applicant mother is Ms Letchford, aged 28 years, and the respondent father is Mr Havel, aged 31 years.
The parties commenced a de facto relationship in or about 2014 and separated on a final basis on or about 15 June 2020.
On 24 March 2023, the Court heard argument and then made orders for interim arrangements in relation to the said children. During the course of argument, the Court ruled that an affidavit filed by the mother on 22 March 2023 without leave of the Court (‘the controversial affidavit’) could not be relied upon by the mother as part of her case and would not be considered by the Court.
Whilst the Court’s reasons made clear the controversial affidavit would not be received or considered, no order was made for it to be formally uplifted from the Court file.
Following argument, Ms Atchison solicitor was appointed as the Independent Children’s Lawyer by the Legal Services Commission of South Australia.
On 31 March 2023, the mother’s solicitor forwarded to the Independent Children’s Lawyer sealed copies of the mother’s Court documents including the controversial affidavit.
On 3 April 2023, the Independent Children’s Lawyer wrote to the parties’ solicitors advising that she had been appointed as Independent Children’s Lawyer in the matter.
On 4 April 2023, the Independent Children’s Lawyer wrote to the father’s solicitor advising that she had read the controversial affidavit. The Independent Children’s Lawyer noted the father’s admission that the redactions in the bank statements annexed to the controversial affidavit related to “transactions involving illicit substances”. The Independent Children’s Lawyer expressed a view that this “has a direct impact on the father’s appropriateness to play a parenting role in [X] and [Y’s] life.” The Independent Children’s Lawyer sought clarity in relation to the bank statements, particularly the time period involved.
On 11 April 2023, the father’s solicitor communicated to the Independent Children’s Lawyer by email requesting that the Independent Children’s Lawyer “destroy the mother’s affidavit and ignore its contents.” On the same date, the father’s solicitor emailed the Court and sought that the controversial affidavit be uplifted from the Court portal.
On 12 April 2023, the Court confirmed that the controversial affidavit had now been uplifted.
On 18 April 2023, the father’s solicitor forwarded correspondence to the Independent Children’s Lawyer advising as follows:
That you have now read that affidavit, and have expressed a view as to its relevance and the impact of its contents on our client’s appropriateness to play a parenting role in the children’s lives, regretfully means that our client has no confidence in your ability to now ignore the contents of that affidavit in the conduct of this matter moving forward. As you are aware, in your role you must remain impartial in order to properly discharge your obligation as the Independent Children’s Lawyer.
We have therefore been instructed to request that you voluntarily recuse yourself and cease acting as Independent Children’s Lawyer in this matter. The decision of our client to instruct us to make this request has not been made lightly. Our client must, however, have confidence in the Independent Children’s Lawyer’s role given the importance of the matters at stake in these proceedings.
On the same date, the Independent Children’s Lawyer replied to the father’s solicitor requesting that the father bring the appropriate application so that she could “fully consider my position based on the information your client files.”
The father complied with this request.
It is in these circumstances that the father now seeks for Ms Atchison to be removed as Independent Children’s Lawyer and that an alternate solicitor be appointed by the Legal Services Commission in her place.
DOCUMENTS RELIED UPON
The father relied upon his Application in a Proceeding filed 5 May 2023, his affidavit in support filed 5 May 2023, the Outline of Case Document filed 15 May 2023 and a Costs Notice filed 24 May 2023.
The mother relied upon her Response to an Application in a Proceeding filed 23 May 2023, paragraphs 6 to 41 of the affidavit in support filed 28 May 2023, the Outline of Case Document filed 24 May 2023 and a Costs Notice dated 23 May 2023.
The Independent Children’s Lawyer relied on the Response to an Application in a Proceeding tendered 25 May 2023 (Exhibit I1), email dated 22 May 2023 from Ms Atchison’s office to the solicitors for the parties (Exhibit I2), draft Minute of Order proposed (Exhibit I3), Outline of Case Document filed 24 May 2023 and a Costs Notice filed 23 May 2023.
ORDERS SOUGHT
The father seeks an order that the Independent Children’s Lawyer “be recused” and that a “new” Independent Children’s Lawyer be appointed.
The mother and the Independent Children’s Lawyer each seek orders for the father’s Application in a Proceeding to be dismissed and costs.
At the conclusion of the hearing, the parties tendered a draft minute of order being ‘Exhibit I3’ which sets out a raft of orders that could be made upon pronouncement of the Court’s decision in relation to the Independent Children’s Lawyer.
LEGAL PRINCIPLES
Independent representation of a child’s interests is set out in Division 10 of the Family Law Act 1975 (Cth) (‘the Act’).
Section 68LA of the Act defines the role of an Independent Children’s Lawyer. The Independent Children’s Lawyer must:
(1)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
(2)Act in relation to the proceedings in what the Independent Children’s Lawyer believes to be the best interests of the child.[1]
[1] Family Law Act 1975 (Cth) ss 68LA(2)(a) and (b).
The specific duties of an Independent Children’s Lawyer are set out in section 68LA(5) of the Act. Those duties include a requirement that an Independent Children’s Lawyer must act impartially in dealings with the parties to the proceedings.[2]
[2] Ibid s 68LA(5)(a).
The Court has also publically provided Guidelines for the role and conduct of the Independent Children’s Lawyer which have been endorsed by the Chief Justice. Those Guidelines include, but are not limited to, the following:
(1)The Independent Children’s Lawyer is to act impartially and in a matter which is unfettered by considerations other than the best interests of the child;
(2)The Independent Children’s Lawyer must be truly independent of the Court and the parties to the proceedings;
(3)The Independent Children’s Lawyer 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;
(4)The role of the Independent Children’s Lawyer is unique in the context of solicitor/client relationships in this jurisdiction;
(5)The Independent Children’s Lawyer holds a discretion as to how he or she progresses the case subject only to statutory requirements. The Independent Children’s Lawyer is expected to use professional judgment and skill subject to any directions or orders of the Court;
(6)The way in which the Independent Children’s Lawyer acts may not always meet with the approval of the parties but this does not mean that the Independent Children’s Lawyer has failed in their professional responsibilities; and
(7)The Independent Children’s Lawyer should assist the parties to reach a resolution, whether by negotiation or judicial determination that is in the child’s best interests.[3]
[3] Bradshaw & Bradshaw [2022] FedCFamC1F 930, [21].
There is a long line of judicial jurisprudence addressing the circumstances in which a Court should consider the discharge of an Independent Children’s Lawyer.
In Lim & Zong,[4] Tree J, sitting in the Appeal Division of the Family Court of Australia, summarised many of those cases as follows :[5]
[4] (2021) FLC 94-048.
[5] Ibid [21].
A number of authorities have considered the removal of an Independent Children's Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children's Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;[6]
•Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the Court as does any licenced legal practitioner;[7]
•On occasion, the Independent Children's Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;[8]
•Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;[9]
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children's Lawyer, or critique every step that they take;[10]
•It is certainly not the case that, even if an Independent Children's Lawyer does make a mistake, the Court will necessarily accede to an application to have them discharged. Significantly more than that is required;[11]
•It is inevitable that the high standards of competence which the Court expects of Independent Children's Lawyers are not always met. Independent Children's Lawyers are, like anybody, liable to human frailty;[12]
•A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.[13]
[6] Dean & Susskind [2012] FamCA 897; Sawyer & Sawyer [2015] FamCA 982 (“Sawyer”), [57]. See also Knibbs & Knibbs [2009] FamCA 840 (“Knibbs”), [33]-[61] approved in Paco & Racina [2014] FamCAFC 195, [52].
[7] Knibbs; Leroux & Leroux [2015] FamCA 1128 (“Leroux”), [31].
[8] Knibbs, [47]-[50]; Leroux, [35].
[9] Knibbs, [52]-[61]; Leroux, [39].
[10] Leroux, [218].
[11] Sawyer, [80].
[12] Sawyer, [79].
[13] Lloyd and Lloyd and Child Representative (2000) FLC 93-045 (“Lloyd”).
The role of the Independent Children’s Lawyer is independent and it is inappropriate for a litigant to micro-manage or critique every step taken by the Independent Children’s Lawyer.[14]
[14] Knibbs, [32]; Horner & Horner [2018] FamCA 487, [10].
It is generally accepted that the Court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one or other of the parties by the very reason that it is equally likely that one or other of the parties will be in disagreement with or aggrieved by the decisions or process taken by the Independent Children’s Lawyer.[15]
[15] Lloyd.
ALLEGED BIAS
Through his counsel, the father contends that he is not seeking to discharge the Independent Children’s Lawyer because she has acted in a manner that is contrary to his position.[16] Rather, the father submits that:
(1)The Independent Children’s Lawyer has been provided with a document with which she should not have been provided;
(2)The Independent Children’s Lawyer has made a specific enquiry in respect of the contents of the document; and
(3)The Independent Children’s Lawyer has, by virtue of the enquiry made in her correspondence dated 4 April 2023, formed a concern or attitude that the father alleges has been “effected” by the controversial affidavit that she should not properly have been provided in the first place.[17]
[16] Ibid [4.7].
[17] Ibid [4.7].
In short, the father contends that the Independent Children’s Lawyer having responded to the controversial affidavit which “she should not have received”, has acted in a way to create a reasonable apprehension of potential bias.
It has been held that bias may be either actual or apprehended / perceived bias.[18]
[18] Johnson & Johnson (2000) 201 CLR 488 (“Johnson”); Ebner vs Official Trustee in Bankruptcy (2000) 205 CLR 337, 345.
The concept of apprehended bias by an Independent Children’s Lawyer was considered by Forest J in the decision of Vale& Vale.[19]
[19] [2016] FamCA 307, [26] - [30].
In that case, the Court determined:
Like so many matters in this Court, it will, in my opinion, be a matter of considering the evidence presented on each application for the discharge of an Independent Children’s Lawyer to determine if the evidence demonstrates sufficient lack of objectivity and professionalism on the part of the Independent Children’s Lawyer such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice as to warrant the Independent Children’s Lawyer’s removal.
Parents who are involved in litigation in this Court about their children need to understand that as part of his or her role, the Independent Children’s Lawyer may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the Independent Children’s Lawyer is not acting in accordance with his or her duties in the case.[20]
[20] Ibid [29] – [30].
In Dickens & Dickens,[21] Watts J said as follows:
The test that I shall apply is that the father needs to establish that the Independent Children's Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children's Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41] – [61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children's Lawyer to argue firmly and fearlessly for what the Independent Children's Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children's Lawyer is in when fulfilling that role because it may be that the Independent Children's Lawyer is required to challenge the position of one or other of the parents.[22]
[21] Dickens & Dickens [2016] FamCA 115.
[22] Ibid [52] (Watts J).
In Kingley & Arndale (No 2),[23] O’Reilly J formulated the test as follows:
…in relation to an Independent Children’s Lawyer the appearance of bias may be tested by whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer might not bring an impartial or unprejudiced mind to the task of independently representing a child.[24]
[23] Kingley & Arndale (No 2) [2010] FamCA 968.
[24] Ibid [33] (O’Reilly J).
The abovementioned cases develop the principles which were set out in the earlier decisions of T & L and Johnson & Johnson.[25]
[25] T & L (2000) 27 Fam LR 40; Johnson.
T & L involved an application by an in person father to discharge a child representative (as they were then known). One of the grounds for the application was that a former Judge, who had made an adverse finding against the father was associated with the firm of solicitors of which the child representative was a partner. The former Judge was shown on the firm’s letterhead as “special counsel”. The former Judge had made the adverse finding in the course of giving a Judgment in parenting proceedings between the same parties. Relevantly, in the context of this argument, Chisholm J held:
The husband could not rely on any actual perception of bias by himself as distinct from the perception of some hypothetical person. While a child’s representative should be removed if there a proper reasons for doing so, it would be quite wrong for Court to remove a child’s representative merely because a litigant has taken a view that the child’s representative is acting contrary to that litigant’s position (or from the litigant’s point of view) contrary to the child’s best interests.[26]
[26] T & L (2000) 27 Fam LR 40, [7] (Chisholm J).
Further:
It was a critical question whether a person in the husband’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the husband by reason of his association with the former Judge.[27]
[27] Ibid at Order No 9.
Chisholm J considered that:
The critical question in considering an application to remove a child’s representative is whether the representative is likely to carry out his or her task properly. It is not necessary to attempt to state generally the circumstances that might cause the Court to find that child representative is unlikely to do so.[28]
[28] Ibid [54] (Chisholm J).
Chisholm J agreed in his Judgment that it is “…important to avoid a situation in which the child representative is a ‘captive [to] the most vocal, litigious or dissatisfied parent or party’.”[29]
[29] Ibid [55] (Chisholm J).
Chisholm J acknowledged that the specific problem arising as to alleged bias by the child’s representative in the case before him was “unprecedented”. His Honour considered, in addressing it, that he should take into account legal principles relating to impartiality of a judicial officer or a solicitor. Chisholm J considered that the question of bias by a decision maker was “indirectly relevant” to the case before him.
In Johnson,[30] the plurality of the High Court held:
…it has been established by a serious of decisions of this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of pre-judgement) is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial or unprejudiced mind to the resolution of the question the Judge is required to decide.[31]
[30] Johnson.
[31] Ibid at 492.
It is considered in Johnson, that the Court made clear that the hypothetical fair-minded lay observer of conduct is postulated in order to emphasise that the test is objective.[32] The perception of bias is to be judged on an objective basis, not on what a party to the proceedings personally feels, no matter how strong that feeling is.[33]
[32] Kingley & Arndale (No 2) [2010] FamCA 968, [31] (O’Reilly J).
[33] Kingley & Arndale (No2) (2010) FamCA 968 [ 33]
It has also been held that this test must be applied within the unique rubric of duties imposed by an Independent Children’s Lawyer.[34]
[34] Kennedy & Peyton [2022] FedCFamC2F 366 (Brown J), [145]-[146].
It is fundamental even in cases of alleged apprehended bias, that some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial.[35]
[35] Kingley & Arndale (No 2) [2010] FamCA 968, [31].
CONCLUSION
The sole question for the Courts determination is whether or not Ms Atchison should be removed as the Independent Children’s Lawyer in the circumstances described above.
The onus lies with the father to convince the Court, on the balance of probabilities, that the evidence should satisfy me that the current Independent Children’s Lawyer should be discharged.
In my opinion, the father has not persuaded the Court to the required standard that the discharge of the Independent Children’s Lawyer is warranted. The Court does not consider that a fair-minded lay person would consider that the Independent Children’s Lawyer has acted in any way inconsistent with her professional and statutory obligations for the children on the facts so presented.
At argument, there was evidence already before the Court in relation to the father’s conduct including the use of illicit substances, not the least of which were his own admissions. The redacted statements had already been disclosed by the father’s former solicitor to the mother’s solicitor. The mother then annexed those statements to the controversial affidavit.
In my view, the Court should be cautious in discharging an Independent Children’s Lawyer in the absence of a compelling reason for doing so. There can be unnecessary costs incurred by having a fresh Independent Children’s Lawyer appointed with such costs also being borne by the Legal Services Commission of South Australia, a publicly funded organisation.
Notably, these proceedings remain at the interim stage. There has only been one substantive interim hearing conducted prior to the appointment of the Independent Children’s Lawyer. The parties are in agreement that there should be a Family Assessment Report. The matter has been listed for Trial in February 2024.
It is appropriate that the Court observes that this case emphasises the mischief which can arise when affidavits are filed without leave of the Court in the absence of an application seeking its reliance or otherwise in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). It also reaffirms the need for jointly signed correspondence from all parties rather than the practice, which appears to be developing, of the forwarding emails to a Judicial Officer’s Chambers with the other parties simply copied in.
In these circumstances, the father’s Application for the recusal of Ms Atchison as the Independent Children’s Lawyer shall be dismissed.
COSTS
Each of the parties and the Independent Children’s Lawyer seek costs dependent on the orders of the Court.
As a general rule, section 117(1) of the Act provides that, subject to certain exceptions, each party to the proceedings shall bear his or her own costs.
In considering what (if any) order is to be made for costs, the Court shall have regard to the criteria set out in section 117(2A).
Section 117(3) of the Act provides that the Court may make orders for costs in favour of the Independent Children’s Lawyer in such proportion as the Court considers just.
In this case:
(1)Neither the father nor the mother are in receipt of legal aid;
(2)The father has been wholly unsuccessful in relation to this application;
(3)The proceedings became unnecessarily complicated as a consequence of the mother filing the controversial affidavit without leave of the Court; and
(4)The Independent Children’s Lawyer, by way of email dated 22 May 2023, put the father on notice that she was obliged to seek an order for costs in the event that the father was unsuccessful as she is funded by the Legal Services Commission of South Australia.
In all of those circumstances, I consider it just for each party to bear their own costs of and incidental to this Application and that each party contribute one half of the Independent Children’s Lawyer’s costs as set out in the Notice of Costs filed 23 May 2023.
For all of the above, the Court makes the interim orders as set out at the commencement of these Reasons which include the proposed orders set out in Exhibit I3.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 6 June 2023
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