Lorde and Chu (ICL Discharge)
[2016] FCCA 1156
•13 May 2016
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 to the Mother’s alleged repeated contravention of earlier parenting Orders.
It will be apparent that the Mother’s Application has many formal defects, as does the Father’s document, styled “Response: Application in a Case”. However, having had the benefit of dealing with this matter since its legal inception in 2012, it is best, in my view, for the Court, - pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001 – to dispense with strict compliance with the Rules regarding the formalities and the many defects in relation to the documents to which I have referred, but most particularly in relation to the Mother’s Application to relocate, and the Father’s Response seeking property Orders. Orders reflecting this dispensation by the Court were made on 22nd April 2016. I make no such concession in relation to the multiple contravention Applications sought to be pressed by the Father. The matters that give rise to the contravention Applications should be pleaded properly so that the Mother may properly plead to them.
In relation to the current aspect of the proceeding, for the reasons that follow, the Application to discharge the ICL must be refused. The Court so orders.
These reasons proceed as follows: (a) the Mother’s Application and Submissions; (b) the ICL’s submissions; (c) outline of principle: consideration and disposition.[1]
[1] I note that the Father did not file any submissions in relation to the discharge Application. On 2nd May 2016, the Father filed a further “Response/Application in a Case” in which he sought 62 Orders in relation to parenting and property but no Orders in relation to the Application to discharge the ICL. His affidavit in support, also filed on 2nd May 2016, is likewise silent in relation to the discharge of the ICL.
The Mother’s Application & Submissions
The Mother’s Application, filed 18th January 2016, (summarised) in fact deals quite briefly with the discharge of the ICL and in rather more detail with general parenting matters. The primary Order sought is in the following terms: “The current ICL be dismissed. She is not working according to both parents’ wishes.”
The only other Order sought in this Application directly relevant to the ICL is Order 4 which states “The current order dated 18/12/2015 was made by the ICL without consultation of the children’s mother.” In its current form, this Order has no provenance, among other things, because clearly the ICL has no capacity to make any Order. The Court accepted the Minute of Orders proposed by the ICL, with some amendments, which might otherwise account for the Mother’s confusion.
There are many similar difficulties with the Mother’s supporting affidavit, which was also filed on 18th January 2016. Only the three parts of paragraph 1 deal specifically with the Application to discharge the ICL. The remainder of the affidavit deals with parenting matters. Those parts relevantly state (typographical errors retained):
At the changeover with the previous ICL, Ms Jeanine [sic] should have my email address, and before she made the current order, she should email me a copy. Instead she sent to me a hard copy of the Order which received round [sic] 8:30am on 18 12 2015. I always receive my mails in the afternoon, this made me believe that Ms Jeanine purposely made me not have enough time to read through the orders she proposed.
I have previously send [sic] a copy of my proposal in December 2015 to the ICL and the Family Court, Ms Jeanine is totally ignoring my proposal in making the current order. She just made up her own ideas and orders without even discussing with me.
I do not think the ICL can help to resolve the family issue, she is trying to rush to finish the case and she makes her own decision according to her own experience.
The Mother’s written submissions were as follows. It is as well to set them out in full, thus (there are various and obvious typographical errors in what follows that have not been corrected):[2]
[2] The Court notes and gives every proper allowance to the Mother in relation to her affidavit evidence and in her submissions noting that English is not her first language. I should also note that the Mother’s complaint regarding the Court event and the timing of it on 18th December 2015 was actually to accommodate the Mother who was making application to the (country omitted) Embassy for visas on that day in relation to upcoming travel.
1. Making order without discussing with the mother nor considering the mother's proposal.
The Current ICL Ms Jeanine Lloyd created the court date on 18/12/2015 based in her own opinion; she did not arrange a meeting nor email me regarding the decision prior to making the order. I had to attend a court hearing on 18/12/2015 regarding my planned trip to (country omitted) with the children, I was given the order without knowing what it was about at the court. Ms Lloyd said she didn't have my email address, which I believe is an excuse. She purposely made me unprepared for the order. When Ms Lloyd took over the case from Ms Naidu, she should have all our communication emails and paper with her. I received the posted hard copy of the order proposed by Ms Lloyd just before I send my children to school on 18/12/2015, thus I had no time to read it. By the time I attend the court, I was given the order, still had no idea what it was regarding. My understanding on the date, when I attend
the court is in relation to my trip with children to (country omitted). And according to the court order, I had supplied copies of my proposal to each party, including ICL on 8/12/2015 in email and hard copies on 11112/2015.
2. Ms Lloyd doesn't care about children's needs and wellbeing
After the court hearing, I asked Ms Lloyd what if the children tell me bad things their father does to them while they are in his care. Ms Lloyd replied: "just tell the children, I don't want to hear about this, it is between you and your dad." This shows to me Ms Lloyd does not care for the children's safety and wellbeing which I believe is the basis an ICL should have. The order 18/12/2016 in order 8 states: "Neither party shall say any unkind or unpleasant things about the other party or allow any other person to do so in the presence of the children". If I don't allow children to tell me what happened to them while they are in their father's care, how DO I discover whether he's breeched the order?
3. Ms Lloyd doesn't consider the physical and emotional needs of the children.
1. on Friday 26/2/2016, Y had great difficulty separate from me when she was supposed to go to the father. I questioned why she doesn't like to go to him and I was concerned for her well being while she is in her father's care. As I know her character if she is upset, it is very difficult to settle her down. So I suggested to enroll her back to her normal day care. Ms Lloyd replied in the email: "your argument that she has trouble separating from you doesn't make sense if you intend to put her in child care on the Friday in any event." Y has been attending this day care full time since July 2015, so she is very comfortable with the environment, while she screams and cries in the public about her wish not going to the father, concerns me that she is not comfortable to be with him.
4. Bully the Mother Ms Chu
When I suggested enrolling Y into her normal daycare because she is very unsettled with the father, this is what Ms Lloyd replied in the email: "if Ms Chu is foolish or stubborn enough to enroll Y into childcare for Fridays, then you have the option of showing the childcare centre the court orders of the court made on 16th February and demanding they provide Y to you under the time ordered by his Honor and also bring a contravention order." As a mother, I am concerned for my children, when they are upset and not wanting to go with the father. The ICL's bully email shows enough that she doesn't care about the children.
4. poor communication, Ms Lloyd purposely tries to hide information
In the court hearing 16/2/2016, I asked His Honor how to contact the Family Consultant, I was told to check with Ms Lloyd. I emailed her on 16/2/2016, this is what she replies: "The consultant is appointed by the Court and it could be anyone of a number of different people. Once they are appointed a notice will be sent to you by the court itself as to the details of your appointment and times, place, etc." As far as I understand the father has already had an appointment with the consultant, we came to the court for several times that mentioned this mysterious consultant, why I don't get to know who she is and when to arrange the meeting. What Ms Lloyd is trying to hide from me?
I have sent emails few times regarding children's been missing their extra-curriculum lessons, including swimming and drawing while they are in the father's care and I have no reply from her. Email: 18/12/2015,
Email on 28/2/2016 was not replied. X was seriously injured, he bruised his right face, with swollen eyes. The accident happened on Friday afternoon, I was not informed and the child was not taken to the hospital or any doctor. Until he came to me on Sunday at 6PM, I took him to the emergency department. I questioned the Father's ignorance to the accident and for not notifying the mother. Ms Lloyd turned a blind eye on this matter. If not her “made up order", the children wouldn't get his injury. So Indirectly, Ms Lloyd made t11e children hurt.
5. Be single sided to the father.
Ms Lloyd has no idea what Mr Lorde was like. She doesn't care about his violent history and being alcoholic. Since the incident on 20 Nov, 2014 to Dec 2015, the children were protected from their father and did not see him for more than a year. I am not saying Mr Lorde shouldn't see the children, but needs steps. (proposed order by mother 8/12/2016).
But Ms Lloyd immediately let them spend 4 nights with him in 2 weeks. They are not emotionally prepared to and the living condition of Mr Lorde is questionable, not suitable for children. Mr Lorde is living in an apartment where he doesn't have a wash machine, he shares with public. What if children gets ill because of their cloth been washed in the public machine? According to X, each time they go shopping, Mr Lorde buys wines, when he is been prohibited consuming alcohol. Ms Lloyd is been in favor of Mr Lorde, it is not beneficial for the children, in other way, putting children in danger. The accident on Friday 26/2/2016 is a good example.
I am very disappointed with the current ICL about her behavior and cruelness towards the children. she is not a suitable ICL and wound not let the children and family benefit. Thus I apply to discharge her to be the ICL in this case.
The ICL’s Submissions
The ICL filed submissions on 26th February 2016. Because they are quite brief, it is as well to set them out in full, thus (emphasis added):
The Application by the Respondent mother Ms Chu that I be discharged as Independent Children's Lawyer and a new Lawyer appointed is opposed the following grounds:
1) The children have already attended upon me and aware that I represent them. They appeared to be relaxed, confident and unstressed by this.
2) The children have previously had Ms Clare Naidu as their Independent Children's Lawyer, and I have had a full briefing and history from Ms Naidu.
3) Ms Chu was given approximately 24 hours email notice of my written submissions prior to the Interim Hearing which was brought forward from 2:00pm until l0:00am due to the Court's unavoidable commitments at that time of the year. These written submissions were prepared after receipt of both parent's submissions which I carefully considered and weighed.
4) By any measure, it is difficult for a self-represented party to do all of the things that have to be done; however this Honourable Court must balance the interests of all parties and other litigants, and most importantly, the best interests of the children.
5) The urgency of these proceedings is driven by the urgent desire of Ms Chu to be granted permission to relocate for a 2 year period to (country omitted), following her decision to re-marry in (country omitted), and her aspirations and timetable.
6) The fact that I as Independent Children Lawyers may eventually hold a different view or opinion to Ms Chu does not mean I should be discharged. Indeed, I have not yet been provided with all the evidence relied upon, so it is difficult to understand how this can be asserted to be a ground of bias.
7) Ms Chu has misunderstood my role as Independent Children's Lawyer which is to assist the Court in providing further evidence and information; to help the Court determine what it is [sic] the children's best interests. I am acting as even-handedly as I can; but I do not have to support either of the parent's cases or Applications. I am confident that any reasonable objective external observer would conclude that I have acted entirely professionally and objectively towards each parent and have formed my own views and made submissions accordingly without any external or hidden agenda or preferential treatment of either parent.
8) There is no reasonable basis for Ms Chu to assert that I have acted unfairly in any matter involving these proceedings on any day or generally.
9) I can assure this Honourable Court that I will accept this Honourable Court's decision about whether I should be discharged or not without any reservations. If it is decided that I should continue in my role as Independent Children's Lawyer I can also assure Ms Chu that her present Application to discharge me in no way will prejudice me against herself personally or alienate me against her proposals for the children's future care.
Outline of Principle
Giving all due allowance to the self-represented Mother, as best I can, it seems to me that her complaints against the ICL fall into the general category of some form of bias, notably because (in her view) the ICL supports Orders that appear to favour the Father, and/or which do not accord with or support the Orders sought by the Mother. I proceed on this basis; clearly, the ICL has proceeded on the same basis. What follows is a summary of principle in the light of the statutory obligations of an ICL, and in relation to relevant principle regarding claims of apprehended bias.
Section 68LA of the Family Law Act 1975 (“the Act”) details with some particularity the role and responsibilities of an ICL. Section 68LA(2) refers specifically to the ICL forming 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 s.68LA(5)(a) refers to the ICL having a duty to act impartially in dealings with the parties. These matters, among others, have an obvious focus and object, certainly in the process and primary focus, to assist the Court in exercising its ultimate responsibility to make orders that are in the children’s best interests having regard to the requirement that the children’s best interests are the paramount consideration, as stipulated in s.60CA of the Act.
It is important in the current matter to stress the requirement set out in s.68LA(5), which requires the ICL to act impartially in dealings with the parties to the proceedings.
A helpful review of relevant authority was recently provided by Murphy J in Knibbs & Knibbs.[3] Beginning at [33], his Honour said (emphasis added):
[3] Knibbs & Knibbs [2009] FamCA 840.
[33] It was said by the Full Court as long ago as 1980 that:-
“It is the duty of counsel representing the child to place before the court the wishes of the child (see Boseley v Lyons (1978) 4 FamLN 17; [1978] FLC 90-423) but in my opinion, unlike counsel appearing for a party who is sui juris and who must put his client’s instructions and argue his client’s case, counsel appointed to represent a child under the provisions of s.65 is as much charged with the duty of making submissions and conducting his case as to reveal those matters which are in the best interests of the child as is the trial judge to seek them out among the evidence and weigh them up. To this extent therefore, I think that it was proper for counsel for the child, notwithstanding his expressed wish to the contrary, to submit that it is not in his best interests that his wishes be acceded to by the court”.
(In the Marriage of Wotherspoon & Cooper (1980) 7 Fam LR 71; [1981] FLC 91-029 at FLC 76, 282)
[34] Some ten years after the decision of the Full Court in Wotherspoon & Cooper, another Full Court in In the Marriage of Bennett (1990) 14 Fam LR 397; [1991] FLC 92-191 made a similar point, emphasising that an ICL (then a “separate representative”) is not bound to make submissions on the instructions of the child. The court said (at FLC 78, 259):-
“…it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the children (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must of necessity, form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duties to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative…”
[35] In In the Marriage of Harris [1977] FLC 90-276 at 76, 476, Fogarty J said this:-
“It appears to me that [the Independent Children's Lawyer] occupies the position of an advocate appearing for a particular party in the litigation although it is the role of advocacy having about it certain unusual features including: (i) that he is not appointed by the party whom he represents; (ii) that he may not be removed by that person; and (iii) that he does not necessarily advance what the client wants but what in his view is in the best interest of that “client” and to that extent exercises an independent judgment quite out of character with the position ordinarily occupied by an advocate”.
[36] In Pagliarella (1993) 16 Fam LR 688, Hannon J was asked to discharge the Independent Children's Lawyer because she “…reached a conclusion at a very early stage and without being in possession of all the evidence and that she lost her “objectivity” and therefore she could not represent N’s interests”.
[37] In rejecting that conclusion, His Honour held (at 695):-
“It is true that [the Independent Children's Lawyer] states in her affidavit that she concluded that the husband had continued to pressure [the child] and that her wishes were as a result of that pressure and the manipulation of the husband and it is that conclusion with which counsel for [the child] and for the husband join issue with her.
In my opinion [the Independent Children's Lawyer] was entitled to reach that conclusion. The substantive proceedings being for a discharge of an earlier order, it was appropriate for [the Independent Children's Lawyer] to have regard to the reasons of the court for the making of that order. In fact she would not have been able to properly carry out her function of investigating the file without reading those reasons. Having done so, she was able to identify the issue or issues which would be of significance in the present substantive proceedings. The next step was to consider whether the findings of Treyvaud J as to the part played by the husband in the formulation of N’s wishes were still applicable. In doing so she properly had regard to the material at her disposal which included the interviews she had with N and with the husband and the wife…”
[38] Each of the parties in these proceedings relied upon the decision of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. In that decision, His Honour referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.
[39] The reasons why that is so, as identified by His Honour include:-
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative”.
His Honour later said, at [40], that he respectfully disagreed only with the last proposition of Holden CJ in relation to a requirement that there be actual bias.
I note that in Pagliarella, the Court there said that where the ICL takes steps in proceedings which cannot be justified, or which are inappropriate, then the Court can order their removal.[4] That “test” has not been satisfied here. Apart from the Mother’s “complaints”, there is no evidence that would satisfy let alone warrant any adverse finding against the ICL.
[4] In the Marriage of Pagliarella (1993) 16 Fam LR 688 at p.690.
More recently still, in Langmeil v Grange (No.3) Dawe J reviewed some of the authorities cited by Murphy J, as well as some further, significant decisions, notably of the Full Court in W & M & W, and by Chisholm J in T v L.[5]
[5] Langmeil v Grange (No.3) [2011] FamCA 171; W & M & W [2006] FamCA 512 (Bryant CJ, Warnick & May JJ); T v L (2001) 27 Fam LR 40. See also Bondai & Bretton (No.2) [2010] FamCA 1237.
At [30], her Honour said (emphasis added):
The authorities upon which I rely include the judgment of Chisholm J, as he then was in T v L (2000) FLC 93-056. That decision has subsequently been referred to with approval by the other Judges of the Court. The Full Court in the matter of W and M and W [2006] FamCA 512, (a decision of the Chief Justice and Warnick and May JJ in 2006) relied upon the decision of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 and his Honour’s decision of T v L (supra). They said, quoting Chisholm J:
“An application to remove a child representative is not strictly covered by the principle that the child’s best interests must be treated as the paramount consideration. Those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant’s position or from that litigant’s point of view, contrary to the child’s best interests.”
It is also important to observe that, while the discussion of principles from the case law in relation to apprehended bias invariably involves judicial officers, the principles are applied analogously in relation to applications of the kind currently before the Court that involve other protagonists in a proceeding, such as an ICL.[6]
[6] See, for example, the discussion in Bondai & Bretton (No.2) [2010] FamCA 1237.
As stated by the High Court in Michael Wilson & Partners Limited v Nicholls, at [31] – [33] (internal references omitted), the relevant test is:[7]
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, [“t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
[7] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
Further, as the High Court has emphasised, the application of the ‘apprehended bias’ test is an objective one. The Court also cautioned about the need to be precise and not to conflate consideration of actual bias and apprehended bias. Thus, again in Michael Wilson (244 CLR at [67]) dealing with both of these aspects, the Court said (internal citations omitted; emphasis in original):
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
Further, the High Court commented in terms that, in my view, are relevant to the further conduct of the current proceeding. At [69] – [70], the Court said (internal citations omitted):[8]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure”. But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[8] See also Heydon J’s comments, at [117], to the effect that, even on the facts of that case, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
I highlight the High Court’s comments in the hope that they assist everyone to consider, among other things, the Rules of Court in relation to proper process.
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.
Consideration & Disposition
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.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 13 May 2016
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