Lim & Zong
[2021] FamCAFC 165
•27 August 2021
FAMILY COURT OF AUSTRALIA
Lim & Zong [2021] FamCAFC 165
Appeal from: Zong & Lim (No 3) [2021] FCCA 238 Appeal number(s): NOA 5 of 2021 File number(s): BRC 8160 of 2014 Judgment of: TREE J Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – APPEAL – Application to discharge the Independent Children’s Lawyer – Whether the primary judge erred in not discharging the Independent Children’s Lawyer – Consideration of the role and duties of the Independent Children’s Lawyer – Consideration of the relevant principles for discharging an Independent Children’s Lawyer – Where no material error is established – Findings open on the evidence – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Applications to adduce further evidence – Relevance – Where the further evidence does not establish material error – Applications dismissed.
Legislation: Family Law Act 1975 (Cth) ss 68L, 68LA, 93A(2), 96 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605
Dean & Susskind [2012] FamCA 897
House v The King (1936) 55 CLR 499; [1936] HCA 40
Knibbs & Knibbs [2009] FamCA 840
Leroux & Leroux [2015] FamCA 1128
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Paco & Racina [2014] FamCAFC 195
Sawyer & Sawyer [2015] FamCA 982
Division: Appeal Division Number of paragraphs: 70 Date of hearing: 17 August 2021 Place: Cairns The Appellant: Litigant in person Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Lander Solicitors Queensland Counsel for the Independent Children's Lawyer: Ms Pendergast Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor ORDERS
NOA 5 of 2021
BRC 8160 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR LIM
Appellant
AND: MS ZONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 25 June 2021 is dismissed.
2.The appellant’s Application in an Appeal filed 3 August 2021 is dismissed.
3.The Amended Notice of Appeal filed 29 April 2021 is dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lim & Zong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Apart from a brief hiatus in 2016, Mr Lim (“the father”) and Ms Zong (“the mother”) have been engaged in contested parenting proceedings in relation to their now nine year old child for nearly seven years. It is unnecessary to traverse much of the extensive history of those proceedings, as the starting point relevant to this appeal is 18 June 2018, on which date a judge of the Federal Circuit Court made an order appointing an Independent Children’s Lawyer to represent the interests of the child in the current iteration of the proceedings.
On 12 January 2021, approximately two weeks before the final hearing of the parenting applications was due to commence, the father filed an application in which he sought to discharge the Independent Children's Lawyer. On 19 January 2021, the primary judge dismissed the father’s application. The father appeals against that order.
The mother and the Independent Children's Lawyer resist the appeal.
For the reasons which follow, the appeal must be dismissed.
BACKGROUND
Both the mother and father are of Chinese origin, and their first language is Mandarin. They migrated to Australia in 2007, where the child was born in 2012.
The father presently lives in Perth, while the mother lives in Brisbane with the child. Although for some time the child was spending time with the father in Perth during school holiday periods pursuant to interim orders, that time was temporarily suspended by order in late 2019, and it has thereafter not resumed, albeit at present seemingly only because of COVID-19 travel restrictions between Western Australia and Queensland.
On 29 October 2020 the matter was set down for trial on 25–29 January 2021, however did not then proceed. It is now listed for trial in September 2021.
THE FATHER’S APPLICATIONS IN AN APPEAL
The father filed two Applications in an Appeal, the first on 25 June 2021 and the second on 3 August 2021. Both seek to lead additional evidence in the appeal.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) gives this Court a discretion to admit further evidence on appeal. That power is subject to s 96 but is otherwise unfettered by legislation.
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Turning to the documents sought to be adduced into evidence by the first Application in an Appeal, they are as follows:
(a)An affidavit of the father filed on 20 January 2021, that being the day after the orders were made by the primary judge now the subject of this appeal. Self-evidently, that affidavit was not available to form part of the material before the primary judge. The affidavit annexes an airline booking confirmation for the child dated 22 July 2020, for travel on 19 September 2020, a matter relevant to Ground 1 of the appeal. However equally self-evidently, the booking confirmation must have been in existence as at 19 January 2021, but was not put before the primary judge. No explanation for the father’s failure to put the material before the primary judge is advanced by him. In any event, as shall be seen, the new evidence does not point to material error by the primary judge. This document will not be admitted;
(b)An email from the Australian Health Practitioners Regulation Agency containing a definition of clinical psychologist. The date of that email is 24 February 2021, and therefore self-evidently again it was not available to be put before the primary judge. In the primary judge’s reasons, he noted at [70] that “[t]here is no definition from the Australian Health Practitioners Regulation Agency of what a clinical psychologist is”; a matter relevant to Ground 4. What the father now seeks to do is remedy that evidentiary deficiency, something which could have been attended to prior to 19 January 2021. No explanation is advanced as to why it was not done. In any event, even if now admitted, again the new evidence would not establish material error by the primary judge. This document will not be admitted;
(c)A family report prepared on 16 February 2021. Again obviously that was not material that was available to put before the primary judge. However it is wholly irrelevant to the issue of whether the Independent Children's Lawyer should have been discharged, or whether the primary judge erred by failing to discharge her. This document will not be admitted;
(d)An Application in a Case filed by the father on 19 January 2021, an order made by the primary judge on 20 January 2021, the reasons for those orders delivered that day, and emails of various dates passing between the chambers of the primary judge and the father. Self-evidently none of these were able to be put before the primary judge. However, it is impossible to see how they could bear in any way upon this appeal. These documents will not be admitted;
(e)A Notice of Address for Service dated 20 April 2020 and a list of documents obtained from the Commonwealth Court’s Portal. It appears that the former document in some way relates to when the mother’s present solicitor first acted for her in the proceedings, a matter said to be relevant to Ground 3. However not only was the document in existence prior to 19 January 2021, and no explanation proffered for why it was not put into evidence then, but it is nigh impossible to see how it has any relevance, much less demonstrates error by the primary judge. The relevance of the list of documents filed in those proceedings is likewise wholly opaque. Neither of those documents will be admitted.
None of the documents referred to in the Application in an Appeal filed 25 June 2021 will be admitted. That application will therefore be dismissed.
Turning to the second Application in an Appeal, the documents sought to be relied upon are:
(a)An affidavit of the Independent Children's Lawyer filed 28 July 2021;
(b)An affidavit of the father’s previous lawyer filed on 20 January 2021;
(c)Affidavits of the father filed in the proceedings on 19 April 2021 and 16 July 2021.
The father seems to be under the mistaken belief that an appellate court should be brought up to date with progress in the proceedings. Particularly insofar as these documents contain further allegations by the father of misconduct by the Independent Children's Lawyer, he appears to rely on them to show a continuing course of conduct, but that cannot be relevant to this appeal. Otherwise the relevance of these documents was not established, and they obviously do not speak to error by the primary judge.
The Application in an Appeal filed 3 August 2021 will be dismissed.
THE APPEAL GENERALLY
At the outset it is useful to identify the relevant principles that apply in considering whether or not an Independent Children's Lawyer should be discharged.
The Court’s power to appoint an Independent Children's Lawyer is conferred by s 68L of the Act. It is indisputable that implicit in that power is the correlative power to remove an Independent Children's Lawyer.
The role of the Independent Children's Lawyer is articulated in s 68LA of the Act. That section uses two subheadings: the first is “general nature of role of independent children's lawyer” and the second is “specific duties of independent children's lawyer”. As to the former, s 68LA(2) provides:
The independent children's lawyer must:
(a)form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings and what the independent children's lawyer believes to be the best interests of the child.
Sub-section (3) goes on to provide that:
The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
The “specific duties of the independent children's lawyer” are expressed in s 68LA(5) in the following terms:
The independent children's lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings related are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
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;[1]
·Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the Court as does any licenced legal practitioner;[2]
·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;[3]
·Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;[4]
·It is not appropriate for a litigant to endeavour to micro-manage the Independent Children's Lawyer, or critique every step that they take;[5]
·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;[6]
·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;[7]
·A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.[8]
[1] Dean & Susskind [2012] FamCA 897 and Sawyer & Sawyer [2015] FamCA 982 (“Sawyer”) at [57]. See also Knibbs & Knibbs [2009] FamCA 840 (“Knibbs”) at [33]-[61] approved in Paco & Racina [2014] FamCAFC 195 at [52].
[2] Knibbs and Leroux & Leroux [2015] FamCA 1128 (“Leroux”) at [31].
[3] Knibbs at [47]-[50] and Leroux at [35].
[4] Knibbs at [52]-[61] and Leroux at [39].
[5] Leroux at [218].
[6] Sawyer at [80].
[7] Sawyer at [79].
[8] Lloyd and Lloyd and Child Representative (2000) FLC 93-045.
I should also note that the Court has published guidelines for the conduct of Independent Children's Lawyers. Relevant to this application they provide that the Independent Children's Lawyer must, if satisfied that a particular course of action is in the best interests of the child, make a submission to the Court suggesting the adoption of that course. That, of course, is merely a repetition of the duty imposed by s 68LA(3) of the Act.
Obviously, whether or not an Independent Children's Lawyer should be discharged, involves the exercise of a discretion. The constraints upon appellate interference with a discretionary decision are well known. In House v The King (1936) 55 CLR 499, it was said (at 504–505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Finally, I should note that none of the grounds articulated in the Amended Notice of Appeal filed 29 April 2021 are in fact proper grounds of appeal. Nonetheless I will address the challenges advanced under them as if they were cast so as to properly raise them.
Ground 1
This ground provides as follows:
1.Wrong date when the chronology was filed.
As expanded upon in the father’s Summary of Argument, this ground challenges the conclusion at [21] of the primary judge’s ex tempore reasons as follows:
The chronology filed by the Independent Children's Lawyer on 14 September 2020 states that the father had not purchased the air tickets. That was correct at that stage.
There have been numerous interim applications decided in the course of these proceedings as to the care arrangements for the child. One of those applications brought by the father sought to amend the collection arrangements for the child so that the changeover location for the purposes of the child’s time with the father during school holidays would be the Perth airport instead of the Brisbane airport.
In anticipation of that interim hearing, the Independent Children's Lawyer filed a case outline on 6 October 2020 containing a chronology of relevant events. The father challenges that chronology and in particular the entry where it is stated:
14.9.2020 The Father filed an application in a case which was
listed in the void-19 list seeking to vary the orders he
consented to on 3 July 2020 and despite not initially
purchasing an [sic] plane ticket for the child to travel to
Perth in the September school holiday period.
(Independent Children’s Lawyer’s case information document filed 6 October 2020, p.10) (As per the original) (Emphasis added)
It is conceded by the mother and the Independent Children's Lawyer that the chronology filed by the Independent Children's Lawyer was in fact filed on 6 October 2020, not 14 September 2020 as the primary judge stated. Of itself, such a mistake by the primary judge would be of no materiality (De Winter v De Winter (1979) 23 ALR 211).
However it appears as though the father’s real complaint is in relation to that part of the entry for 14 September 2020, which is emphasised above. As the mother correctly identifies, it seems that the gravamen of the father’s complaint is that by the date of filing of the chronology, i.e. 6 October 2020, the Independent Children's Lawyer was then aware (at least according to what the father told the primary judge at the hearing), that the father had in fact purchased the plane ticket for the child.
However it appears that the father may not appreciate that a chronology purports to, by reference to date, set out events and circumstances prevailing as at the specified date, rather than the events relevant to that date being progressively updated as the facts change.
In his Summary of Argument, the father now contends that he first purchased the relevant ticket on 22 July 2020, but that flight was cancelled by the airline as a result of the COVID-19 pandemic. A new ticket was then reissued on 17 September in lieu of the first.
However there was no evidence of that before the primary judge, and indeed, according to the transcript, in answer to his Honour’s question “[w]ell, what I’m looking for is copy of the ticket or the receipt showing the date you bought the ticket”, the father explicitly told the primary judge “[o]ne day ago. I … 17 September” (Transcript 19 January 2021, p.5 lines 16–19).
Further, even if it be that the Independent Children's Lawyer was mistaken as to whether or when the father had purchased a ticket for the child, and acting upon that mistaken belief, misinformed the Court via her 6 October 2020 chronology, that is not conduct which would justify her discharge, unless it could also be shown that it was done either deliberately, or recklessly. The evidence falls far short of that.
No error of any materiality attends his Honour’s statement at [21]. This ground fails.
Ground 2
This ground provides:
2.Wrong topic. My topic here is [the Independent Children's Lawyer] made misleading statements during January 2020 hearing.
Under cover of this ground of appeal, it appears as though what is being challenged is his Honour’s conclusion at [33] as follows:
The next issue had to do with the appeal hearing and as I read the father’s affidavit and as I listened to his submissions, he seems to be saying the Independent Children's Lawyer ought be discharged because she would not support a stay of the orders of Judge Tonkin.
The father contends that the relevant misleading he was alleging was not in any interim hearing before Judge Tonkin, but rather during the course of the hearing of an appeal before Kent J from a decision of her Honour’s. It appears as though the father takes umbrage at then counsel for the Independent Children's Lawyer’s submission, as recorded by Kent J at [15] of his Honour’s reasons (Lim & Zong (2020) FLC 93-939), that a specific finding of fact by Judge Tonkin should not be taken as a finding, but rather merely a recording of the mother’s submission with apparent acceptance. This contention by the Independent Children's Lawyer was rejected by Kent J, and the father sought to argue before the primary judge that, by making that rejected submission, the Independent Children's Lawyer had in some way misconducted herself.
It is very difficult to see how that could possibly be so. The father seems to place emphasis upon the Independent Children's Lawyer’s duty to “represent and promote the best interests of a child in family law proceedings” and that they have “special responsibilities”. But whilst that is undoubtedly correct, it does not mean that putting an argument which is not accepted by an appeal court, in an effort to uphold a decision of a Federal Circuit Court judge, comprises misconduct. Far from it.
In those circumstances, any mistake by the primary judge in properly articulating the father’s contentions was not of any materiality.
No error is demonstrated by this ground and it fails.
Ground 3
This ground reads:
3.No final extension of domestic violence order in 2019.
The genesis for this challenge appears to be at paragraphs [50]–[55] of the primary judge’s reasons, which provide as follows:
50In fact, the mother’s lawyer on 20 July 2020 sent an email to the Independent Children's Lawyer stating that the Temporary Protection Order had been granted.
51Two months later, in the submission which the Independent Children's Lawyer had put before this court, the Independent Children's Lawyer referred, as the father says to a final extension of that order.
52I do not know what a final extension means.
53I do not take that to mean a final Protection Order was made.
54It appears to me that some type of extension order was placed upon the Temporary Protection Order which was made against the father.
55As stated by counsel for the Independent Children's Lawyer, there is no misleading conduct apparent on the part of the Independent Children's Lawyer. The mother’s counsel also agrees with that.
Although difficult to follow, in the father’s Summary of Argument, he refers to a number of alleged statements by the Independent Children's Lawyer, over a series of hearings, about the finality or otherwise of a protection order, and particularly whether it was to last for two or five years.
Doing the best I can, the gravamen of the complaint seems to be that the father believes the Independent Children's Lawyer was contending in one or more of those hearings there was a final protection order in place, whereas it was only some species of temporary extension. The significance of that distinction is, of course, that a final order would arise, if not by consent, only after a contested hearing.
At worst, even if that was the Independent Children's Lawyer’s position – and it is by no means clear – there was obviously a state of confusion as to what had occurred in the family violence proceedings. Further, on at least one occasion, it is clear that the Independent Children's Lawyer was merely relaying what she had been told by the mother’s lawyer at the bar table. That does not speak of misconduct, and even if it be, certainly not of a kind that should see the Independent Children's Lawyer discharged. More to the point, it was well open on the evidence for the primary judge to conclude as he did at [55], and no error is established in relation to that conclusion.
This ground fails.
Ground 4
This ground reads:
4.Whether [the Independent Children's Lawyer] complied with a request from an order.
This challenge has its origins in an order that was made by Judge Tonkin on 20 September 2019 (amended on 30 October 2019), as follows:
6.Within 35 days of these orders, the Independent Children's Lawyer is requested to recommend a clinical psychologist (who practises proximate to the father’s residence) for the father to consult with and prepare a report regarding whether there is a risk to the mother and to the child being exposed to further family violence by the father.
It appears not to be in contest that thereafter the Independent Children's Lawyer made enquiries with the Family Court Child Dispute Service section of the Family Court of Western Australia, who recommended a particular psychologist, the name of whom was passed on to the father by the Independent Children's Lawyer. As it transpired, she was not a clinical psychologist, but rather a general psychologist. At [67]–[75] of the primary judge’s reasons, his Honour said as follows:
67The father now complains that that psychologist, a Ms G, charged him an amount of money, $1,540, that Ms G was not a clinical psychologist and that Ms G was not practising locally to the area the father lives in.
68The father said this psychologist lived 75 kilometres away.
69The father also said he received advice from the Australian Health Practitioners Regulation Agency that Ms G was not a clinical psychologist.
70I will make this observation – I have seen the order of Judge Tonkin. I have viewed that order which recommends a clinical psychologist. There is no definition in the order of what a clinical psychologist is. There is no definition from the Australian Health Practitioners Regulation Agency of what a clinical psychologist is. It does appear that Ms G is a psychologist. It does appear she is a practising psychologist.
71The complaint of the father seems to be that the Independent Children’s Lawyer did not follow the order.
72The Independent Children’s Lawyer discharged a duty as best she could, in my view.
73She was under no obligation to recommend a clinical psychologist. It was a request, and a request only.
74She certainly made some quite appropriate inquiries with the Family Court of Western Australia.
75She was given a name of a person who practises in the area. So she discharged that duty.
It could not seriously be contended that by doing what she did, the Independent Children's Lawyer in some way misconducted herself, and much less, in a way which warranted her discharge. The findings of the primary judge were clearly open to him, and no error is discernible in this regard.
Ground 5
This ground reads:
5.Whether [the Independent Children's Lawyer] filtered out information from her chronology, which shows the father did not threaten [the mother].
The relevant entry in the particular chronology appears to be that for 18 June 2018, which reads:
18.6.2018the mother attended Suburb F police station counter to seek clarification of the definition of what constitutes DV. She said she has received emails from the father and was not sure if they would constitute a breach. She explained that the emails were in Mandarin. She was advised to obtain a translation of the emails.
(Independent Children’s Lawyer’s case information document filed 6 October 2020, p.8) (As per the original)
The father’s complaint is that on that occasion the mother also said that she did not feel threatened by the emails which she was referring to the police. He says that by not including that material, which was favourable to him, in the chronology, the Independent Children's Lawyer misconducted herself. As to this at [87]–[97] the primary judge said as follows:
87The claim by the father is that the Independent Children’s Lawyer had filtered out a quote which may – or in his view proves that, in my view, may go to prove that anything he said was not threatening to the mother or she did not believe it was threatening to the mother.
88Firstly, it is up to the court to determine whether something is threatening.
89Obviously, if a person does not feel threatened, that may be the end of the matter.
90A person may very well misconceive any information they receive from another party who may well be acting in a threatening manner if, in fact, other circumstances can be taken into account.
91None of these issues have been put before this court in a trial sense for any conclusion to be reached.
92But it is not the Independent Children’s Lawyer who is filtering material.
93The Independent Children’s Lawyer merely prepared a chronology.
94A chronology is not evidence.
95It is an aid, but it is not the evidence.
96The evidence will come from either of these parents and come from documentary evidence admitted from the Queensland Police Service, if such has been obtained under subpoena.
97It is not an issue upon which the Independent Children’s Lawyer would be discharged.
Correctly, counsel for the mother identifies that the chronology referred to the source document, and plainly the Independent Children's Lawyer was not obliged to put in that document detail beyond that which she considered relevant.
No error is shown in relation to the primary judge’s conclusion in this regard, which was plainly open on the evidence, and this ground fails.
Ground 6
This ground provides:
6.Wrong topic. [The Independent Children's Lawyer] missed information from her chronology that the father may not interested by WA Police related to a child exploitation crime.
(As per the original)
Again this ground stems from items in the Independent Children's Lawyer’s chronology, which items also appeared in an earlier case outline document filed by the ICL on 29 August 2019. The relevant items in the chronology provided:
5.7.2019Western Australian police executed a search warrant at the father’s address in Perth based on “information had been received that child exploitation material had been downloaded at the address”
29.7.2019WA police record that Mr H attended wanting to know when he would receive his mobile phones back. He was informed that they would not be returned to him until the conclusion of his current matter (before the court). He has been charged in relation to having child exploitation material.
(Independent Children’s Lawyer’s case information document filed 6 October 2020, p.9) (As per the original)
It appears that the document was before Judge Tonkin in January 2020, and hence relevant to the appeal from her orders then made.
In his Honour’s reasons arising from that appeal, Kent J dealt with this issue as follows:
16.The father’s discussion of that incident with the primary judge was prone to raise some suspicion – the father first telling the primary judge that one police officer attended, then that there were 10 officers and claiming not to know the name of a gentleman present at his house at the time of the search, stating only that he was a “man who looks after his dog” (at [67]; Transcript 2 September 2019, p.40-48). It appears it was that man who the police were interested in, rather than the father.
It therefore seems clear that, despite there being no explicit reference to it in the Independent Children's Lawyer’s chronology, somehow or other Kent J became aware that it was not the father who was the subject of the Western Australian police investigation.
At [100]–[114] the primary judge said as follows:
100The father’s house, as I understand the evidence, was raided at one stage and some man he had in the house living there, as I understand this, was found with child exploitation material on his computer.
101Obviously, the court is going to be concerned as to why a person is in the father’s house has child exploitation material.
102It seems that there may be evidence that the police in Western Australia at some stage formed a policing view that the father was not a person of interest.
103 Now, that is as far as I can go.
104It is up to the Independent Children’s Lawyer – it is important that she put this material at the relevant time before the court, which she did.
105The father complains that the Independent Children’s Lawyer did not tell Kent J in the Appeal that the father was not a person of interest.
106I do not know what the Independent Children’s Lawyer told Kent J in the Appeal.
107 I do know Kent J said he did not consider it necessary to address all the issues.
108He also said it appears it was the man who police were interested in rather than the father. Note the words ‘it appears’.
109The father is quoting from the Appeal judgment. Kent J has not made any findings either.
110 He is merely stating what I am stating as from the evidence.
111 I do not know how this case is going to be presented.
112It may be presented in such a way where I am required to make a finding on why this man is in the father’s house, but the issue here is, is there any misconduct, any bias or anything which would lead the court to form the view that the Independent Children’s Lawyer ought to be discharged on this issue?
113 Clearly, the answer is no.
114 The Independent Children’s Lawyer has performed her duty on this issue.
It is important to remember that a chronology is simply an aide, and is not evidence. It is simply too long a bow to draw to say that, by omitting to put in the chronology that the father was not a person of interest to the Western Australian Police, the Independent Children's Lawyer thereby misconducted herself in a way which justifies her removal. No error is discernible in the primary judge’s conclusion or reasoning in this respect, which was patently correct.
This ground also fails.
Ground 7
This ground reads:
Wrong topic. [The Independent Children's Lawyer] did not concerned about the child health and safety, but criticised the father did not buy the child’s tickets when it was unnecessary.
(As per the original)
Apart from this not being a proper ground of appeal, I cannot discern within it any direct challenges to the findings or conclusions of the primary judge. Rather it seems to be an argument that, on occasion, the Independent Children's Lawyer was not focussed upon the best interests of the child, but rather upon more peripheral matters, such as the circumstances surrounding the purchase of the child’s airline tickets. However that was not an argument put before the primary judge, and even if it inferentially were, it was well open to the primary judge to not be persuaded that the Independent Children's Lawyer was not properly acting in the best interests of the child.
Finally I should note that under this ground, in the father’s Summary of Argument, a further criticism is made of the primary judge, namely that his Honour considered the individual complaints separately, and not collectively. It is unclear whether the father pressed for a collective consideration of all of his individual complaints, but given that none of the complaints had substance, whether viewed individually or collectively, a proper basis for the discharge of the Independent Children's Lawyer was simply not established. No error is discernible in the approach of the primary judge in this respect.
This ground of appeal fails.
CONCLUSION
No ground of appeal is established, and therefore the appeal must be dismissed.
COSTS
In the event that the appeal was dismissed, no party sought any order for costs. Each party will therefore bear their own costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 27 August 2021
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