FEDERAL CIRCUIT COURT OF AUSTRALIA
| LORDE & CHU (ICL Discharge) | [2016] FCCA 1156 |
| Catchwords: FAMILY LAW – Application to discharge independent children’s lawyer – consideration of principles regarding duties of ICL and regarding discharge – unsatisfactory state of evidence with all adverse comments by the Mother against the ICL being unsubstantiated assertions – allegations of bias against ICL in her conduct of matters before the Court and in dealing with the parties – misapprehension by the Mother of the role and responsibilities of the ICL. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 68LA Federal Circuit Court Rules 2001 (Cth), r.1.06 |
| Antoun v The Queen (2006) 80 ALJR 497; 224 ALR 51 T v L (2001) 27 Fam LR 40 W & M & W [2006] FamCA 512 |
| Applicant: | MR LORDE |
| Respondent: | MS CHU |
| File Number: | CAC 478 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 16 February 2016 |
| Date of Last Submission: | 26 February 2016 |
| Delivered at: | Canberra |
| Delivered on: | 13 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Solicitor/advocate for the Independent Children’s Lawyer | Ms J Lloyd |
| Solicitors for the Independent Children's Lawyer: | Jeanine Lloyd & Associates |
ORDERS
The Mother’s Application to discharge the independent children’s lawyer, filed 18th January 2016, be dismissed.
The matter be adjourned to a date to be advised by the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Lorde & Chu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 478 of 2012
| MR LORDE |
Applicant
And
| MS CHU |
Respondent
REASONS FOR JUDGMENT
Introduction
The current Application before the Court is by the Respondent Mother to discharge the long-experienced independent children’s lawyer (“the ICL”). It is not the first time that such an Application has been brought in these long-running proceedings.
By way of quick update or overview, I note that the current state of the litigious contest stands (summarised of course) as follows:
a) There is outstanding the Mother’s relatively recent Application (formally filed 11th April 2016 – but notified to the Court quite some time ago) to relocate to (country omitted) with the two children of the relationship, X (now aged 7 years) and Y (aged 4 years). Unsurprisingly, this Application is opposed by the Father, Mr Lorde.
b) Mr Lorde also has on foot a consolidated Application (filed 10th March 2016) in which he seeks both parenting and property Orders (noting that he claims that the Mother/Wife has property in (country omitted)).
c) The consolidated Application to which I have just referred also purports to seek Orders in relation…
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- Case
- [2016] FCCA 1156
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the Mother had provided sufficient grounds to warrant the discharge of the ICL. This required the Court to determine the principles applicable to applications for the discharge of an ICL, particularly in relation to allegations of bias or partiality, and to assess whether the Mother's complaints met the threshold for such a discharge.
Judge Neville reasoned by analogy to the principles governing applications for judicial recusal, citing *Antoun v The Queen* and *Re JRL; Ex parte CJL*. His Honour emphasised that courts should be cautious in readily acceding to such applications, especially when the grounds relate to procedural matters rather than substantive issues. The Court found that the Mother's concerns were primarily a result of her disappointment with the ongoing litigation, her desire to relocate, and the ICL's direction to abide by due process. The Court noted that the Mother had misunderstood the role of the ICL, which is to provide independent opinions based on the children's best interests, not to make orders. His Honour concluded that the Mother had not presented evidence of bias or partiality on the part of the ICL, and that the ICL's opinions were formed independently and in the best interests of the children.
Consequently, the Court ordered that the Mother's Application to discharge the independent children's lawyer be dismissed. The matter was then adjourned to a date to be advised by the Family Court of Australia.
Orders
Orders of the court
1.
The Mother’s Application to discharge the independent children’s lawyer, filed 18th January 2016, be dismissed.
2.
The matter be adjourned to a date to be advised by the Family Court of Australia.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I should also observe the following comment by Kirby J in Antoun v The Queen, where his Honour repeated the earlier (and regularly repeated) caution by Mason J in Re JRL; Ex parte CJL.[9] At [34], Kirby J said (internal citations omitted):It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.[9] Antoun v The Queen (2006) 80 ALJR 497; (2006) ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. Applying this principle analogously to an application to discharge an ICL, in my view the Court should similarly be very cautious to accede too readily to such applications. I suggest this is especially so in matters where, as here, on proper analysis, the issues relied upon relate very often to process as opposed to substantive issues all of which are, in any event, to be determined at trial. It should also be noted that this is the second ICL in the matter. The opinion formed and expressed by the ICL was independent and there is no evidence to suggest that any bias, or lack of impartiality, has been shown. The fact that one of the parties disagrees with the view of the ICL does not, without more, constitute bias or partiality. In my view, the Mother’s Application is primarily borne out of her disappointment at (a) the ongoing litigation, (b) her desire to relocate, and (c) the requirement by the ICL, directed to both parties, to abide by due process. Further, the Mother has clearly misunderstood both the processes of the Court and particularly the role and responsibilities of the ICL as set out in s.68LA of the Act. While the Court can (and often does) adopt the views of the ICL, the ICL cannot and does not make Orders. In this regard, and in not a few others, the Mother has misunderstood the ICL’s role and responsibilities. In my view, nothing raised by the Mother against the ICL and her conduct in the proceeding properly or relevantly satisfies, as a matter of fact and or law, the principles that apply in relation to apprehension of bias applications. The Mother’s affidavit, and her submissions, are simply assertions, and/or complaints. Without more, they do not warrant the ICL’s appointment to be discharged. I also accept the ICL’s submissions. I am satisfied that her opinion(s) is based on the best interests of the children. She has shown neither bias nor partiality. I am satisfied, indeed I have no doubt that she will use her best endeavours to remain impartial and to form views that are based on evidence, and that she will make recommendations that are in the children’s best interests. The proper course is for the Mother’s Application to discharge the ICL to be dismissed. The Court so orders.