Manson & Manson
[2021] FamCA 507
•14 July 2021
FAMILY COURT OF AUSTRALIA
Manson & Manson [2021] FamCA 507
File number(s): SYC 8276 of 2018 Judgment of: REES J Date of judgment: 14 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the Independent Children's Lawyer. Cases cited: Johnson v Johnson (2000) 201 CLR 488
Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
Number of paragraphs: 66 Date of hearing: 13 July 2021 Place: Sydney Applicant: Self-represented Respondent: Excused from attendance Solicitor for the Independent Children's Lawyer: Mr Blumberg ORDERS
SYC 8276 of 2018 BETWEEN: MS MANSON
Applicant
AND: MR MANSON
RespondentBLUMBERG FAMILY LAWYERS
Independent Children’s Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
14 JULY 2021
THE COURT ORDERS:
1.That Order 6 made 25 May 2020 for the appointment of an Independent Children’s Lawyer for the child X born … 2010 be discharged.
2.The Registrar is requested to forward a copy of these orders and reasons to the Legal Aid Commission of NSW, Director of Family Law.
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 Manson & Manson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Mr Manson (“the father”) and Ms Manson (“the mother”) are engaged, relevantly, in parent proceedings in relation to their son, X, who is 11 years old.
Directions have been made for the preparation of trial affidavits and the matter has been listed for call-over on 6 August 2021 for the purpose of allocating hearing dates.
A report has been prepared by a single expert child and family psychiatrist, Dr F, and released to the parties.
The issues for final determination are parental responsibility, with whom the child will live and what time, if any, the child will spend with the parent with whom he does not live. The parents do not agree on which high school he will attend and that determination will be dependent, in some part, upon with which parent he lives.
On the application of either parent, one possible outcome is that the child will live with one parent who will have sole parental responsibility for him and that he will spend little or no time with the other parent.
The briefest reading of the material which has been filed by the parents reveals that there is a high level of conflict between the parents.
By an Application in a Case filed 6 July 2021, the mother seeks the discharge of the Independent Children’s Lawyer (“ICL”). That application is opposed by the ICL.
The father did not wish to be heard in relation to the application and was excused from attendance at the hearing.
The mother relied on an affidavit sworn by her on 5 July 2021. The ICL did not file evidence but made submissions.
The mother asserts that the ICL has refused to act in the best interests of the child and that the ICL cannot bring an impartial mind to the performance of his role because he is aware that the mother has made complaints about him to both the Legal Aid Commission of New South Wales and to the Legal Services Commissioner.
Those complaints have been dismissed.
In support of those contentions, she raises a number of discreet complaints with which I will deal seriatim.
The ICL has ceased to communicate with the mother
The position of the ICL, set out in his written submissions, is that:
Given the level of hostility in the mother’s communications to the ICL, the ICL decided that he was no longer continue [sic] to engage with the mother until the tone of her correspondence changed – as nothing was being achieved from the hostile position adopted by the mother.
A selection of the correspondence between the mother and the ICL was annexed to the mother’s affidavit.
The mother accuses the ICL of threats, ultimatums and intimidation. She says that his correspondence is “arrogant” and “unseemly”. She deposes to her belief that the ICL is condescending and, in her affidavit, refers to his being “arrogant and obtuse” and his “disgraceful vindictive attitude towards me”.
In those circumstances it is difficult to imagine what benefit could be gained from the ICL’s continuing such correspondence.
Whether the ICL also ceased communications with the solicitor for the father is not known.
However, in circumstances where the ICL continues to communicate with the father’s legal representatives but not the mother it is inevitable that the perception of bias will arise.
The issue of bias will be discussed later in these reasons.
The ICL has demonstrated that he is ignorant of the issues before the Court
The mother relies on a case outline document prepared by the ICL and forwarded to the mother on 7 August 2020 where the ICL wrongly referred to the child being in year 4 at G School whereas he was, in fact, in year 5 at H School. The mother emailed the ICL to correct that mistake.
Further the mother relies on the fact that the ICL sought an order that the mother complete a parenting course whereas the mother had, in an earlier affidavit, deposed to having completed such a course.
I do not consider that those matters warrant the discharge of the ICL.
The ICL is acting against the child’s best interests to receive an education and be enrolled in high school
Which high school the child will attend in 2022 will be determined in the substantive proceedings. The father does not consent to his being enrolled at a local Catholic school near the mother’s residence and the mother accuses the father of “vengefully sabotaging” an alternate enrolment.
The mother asserts that the ICL has failed in his obligation to facilitate a negotiated resolution of that issue.
On 1 June 2021, the ICL emailed the mother stating, inter alia:
It is clearly in X’s best interests that he attend high school next year.
We do not have any ability to resolve this issue apart from trying to facilitate sensible discussion between the parents. This now seems most unlikely.
Unfortunately it seems that the Court will need to make a decision about where X will attend high school, along with where he will live and how he will spend his time – and there is no certainty as to when these decisions will be made. Perhaps more clarity on this will be available after the next court event.
This unfortunately may mean X will not be able to attend high school at the start of next year.
The parents are each implacably opposed to the proposal of the other.
Neither appears to be willing to alter or modify his or her position.
It is unclear what the mother asserts the ICL could or should have done to remedy that situation.
The ICL’s statement in the last sentence of his email is, unfortunately, correct. If the parents cannot agree to enrol X at a school, then he cannot be enrolled absent court orders.
I do not accept the mother’s assertion that the statement to which I have referred in the preceding paragraph demonstrates that the ICL “is acting incompetently and unprofessionally, as well as biasedly and inappropriately as he supports the father breaking Australian law (Section 22 of the Education Act (1990)) in not enrolling the child in a formal education setting”.
Both parents, not the father alone, are responsible to ensure that the child is enrolled in school.
The ICL breached an order requiring each party and the ICL to agree in writing on the identity of the single expert and instructions for the single expert
The orders, made on 25 August 2020, relevantly provided:
8.Before 4pm 8 September 2020 each party and the Independent Children’s Lawyer (‘ICL’) shall agree in writing concerning:
8.1The identity of the Single expert for the purposes of Order 7 herein; and
8.2 The content of the letter of instruction to the Single expert
9.In the event that the parties and ICL do not agree on either or both of the matters set out in Orders 8.1 and 8.2 herein by 4pm 8 September 2020 then, by 4pm 15 September 2020 each party and the ICL shall file, serve and forward to the chambers of Senior Registrar Campbell:
9.1A Minute of the Orders sought by them concerning the identity of the Single Expert and their proposed letter of instruction;
9.2An affidavit setting out the evidence relied upon in support of the orders they seek, annexing a copy of the proposed letter of instruction; and
9.3 Any written submissions on which they wish to rely.
10.Leave is granted to the Independent Children’s Lawyer to relist the matter before the Senior Registrar after the time for filing the material pursuant to Order 9 has passed.
There was no agreement and, ultimately, the issue of the identity of the single expert and the terms of the letter of instruction were determined by a Senior Registrar in a defended hearing on 18 November 2020. I infer that there the hearing was necessitated because there was no agreement between the parents.
I do not accept this criticism of the ICL to be substantiated.
The ICL has not presented or provided any evidence to the Court
The obligation of the ICL is to ensure that all relevant evidence is available for the Court at the hearing of the matter.
The matters upon which the mother relies are set out at paragraphs 18 to 21 of her affidavit and at annexure 5. Her complaint relates to events surrounding an interim hearing before the Senior Registrar on 25 August 2020.
On 6 July 2020, in preparation for an interim hearing on 11 August 2020, a registrar made orders in accordance with the protocol then adopted by the Court for the inspection of documents produced on subpoena; the copying of the documents to prepare an electronic tender bundle and the preparation of the tender bundle.
Because the mother is self-represented, she was not permitted to have copy access to medical records which, she asserts, supported her case that the child has witnessed violence towards the mother by the father.
The matter did not proceed on 11 August 2020 and was adjourned to 25 August 2020.
On 12 August 2020, the ICL wrote to the Senior Registrar, with a copy to the mother, asking for permission “to photocopy the Subpoena material for the purposes of preparing a joint tender bundle in preparation for 25 August 2020”.
On the morning of 25 August 2020, the mother sent an email to the ICL asking if the joint tender bundle had been prepared.
The ICL replied to the mother:
We only received leave to copy the documents on Thursday after our request immediately after the last court event.
We received a call yesterday mid-morning from the subpoena room in response to our request for an appointment to copy the documents.
Given:
1. our review of our notes from our subpoena viewing did not indicate that any material supported our position
2. we had not received a request from either party for material to be included in a joint tender bundle
3. our resource limitations
4. the covid risks given the city is a designated hotspot
we decided that it was not practical or necessary to attend the Court in the city to prepare a tender bundle.
Please note that a joint tender bundle is not a copy of all the subpoena material. It is a collection of a limited number of specific documents that one or more of the parties intends to rely on.
(Emphasis added)
The mother replied:
I am very disappointed to hear that you did not prepare the bundle as you documented you would.
You are aware that I raised subpoenaed material in my submission and at the court mention on 11 August 2020, and that [the Senior Registrar] stated the ICL is the only person who can copy and provide this material.
You are also aware that I am self-represented and was not aware that I had to specifically advise you of the material to photocopy in the situation where you had already copied me into your request to the court to copy the material.
I believe you should have communicated to both parties of your intention to not prepare this bundle.
The ICL responded:
What did you expect would be in a joint tender bundle?
The mother replied:
I expected exactly as you advised in writing – a photocopy of the subpoena material.
I think it is unprofessional for you to advise one hour before a hearing (and only because I contacted you to ask) that you chose not to do what both parties expected would be completed.
The ICL emailed:
A photocopy of the subpoena material is impractical and is certainly not a joint tender bundle in our experience.
As noted previously a joint tender bundle is a selection of documents on which the parties intend to rely.
The mother responded:
I am not sure why it would be impractical, and you made the request to the court to photocopy the material.
You are aware, as was [the Senior Registrar], that subpoena material was to be relied upon and you did not communicate with either party of your intention to not provide this material after you had already documented your intention to do so.
There is some substance in the mother’s complaint. Because she was not told until 8.27 am on the morning of the hearing that the ICL had not, as she expected, prepared a tender bundle, she was deprived of any opportunity to approach the Court to make other arrangements to ensure that the documents that she wished to tender were electronically available.
Further, the obligation of the ICL was to ensure that all evidence relevant to the determination to be made was before the Court, not only the material which supported the ICL’s position.
It does not appear to be disputed that subpoena have been issued and documents relevant to the mother’s allegations of “family violence, abuse and neglect” are available to be tendered in the substantive hearing.
The ICL is not impartial
The ICL referred the Court to 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”.
The reasons why that is so, as identified by His Honour include:-
The 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 Knibbs & Knibbs [2009] FamCA 840, Murphy J, agreed with the statements of Holden J and stated:
Once it is understood that the ICL’s primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances - provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.
Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).
In so far as there may be a divergence of opinion as to whether an ICL should only be removed if the Court finds actual bias in his or her conduct of the case, or whether a finding of the apprehension or perception of bias is sufficient, I am of the view that either actual or perceived or apprehended bias is sufficient.
Whilst I accept that the mother perceives that the ICL is biased, the test is objective and not subjective. The principles, which have developed in the context of applications for judges to be disqualified, apply equally to such applications relating to an ICL.
In the High Court decision of Johnson v Johnson (2000) 201 CLR 488 at 492‑493, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series 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 prejudgment) is 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.
(Italics added)
That formulation has been followed in later decisions.
In this context I propose to consider the mother’s complaint that the ICL does not bring an impartial mind to bear on the issues before the Court.
On 22 December 2020, the ICL wrote to the mother, responding, I infer, to an email from her dated 21 December 2020. The mother’s email asserted that the ICL was “inappropriately representing and supporting the Applicant Father and doing whatever you can to address his issues…”. The mother asserted that the ICL “deliberately misled the court in your email of 17 December 2020…” and using scare tactics. The mother asserted that the letter of instruction to Dr F, which had been prepared by the solicitor for the father, not the ICL, “deliberately excludes material referring to the Applicant Husband’s violence, stalking, alcoholism, mental health issues etc”. Specifically, the mother referred to six sets of documents which had been produced on subpoena which she contended were relevant to Dr F’s consideration, including counselling records, records relating to the father’s mental health, police records and school records.
The ICL wrote:
Our role as ICL is not to represent X – it is to advise the Court what we believe is best for X.
We find many of your comments below and previously highly offensive. Most parties we deal with attempt to keep the ICL onside given the significant influence an ICL may have on the final outcome – you clearly do not believe this is important.
We request you immediately cease any further derogatory or offensive comments about the ICL as we are not prepared to put up with any more of them. We choose to act as ICL in certain matters to assist the children – we do not deserve abuse from parents.
At this stage we are firmly of the view that X should be having a significant and meaningful relationship with both his parents. As advised earlier if you do not ensure this happens we will have no choice but to seriously consider advising the Court that X should be living with his Father.
As at 22 December 2020, the parents and X had not been interviewed by the single expert, Dr F. Orders had been made on 25 August 2020 which provided for X to spend professionally supervised time with his father for two hours each Sunday. The only expert evidence before the Court was the report of the Child Dispute Conference dated 27 September 2019. In that report, the mother’s concerns about the father, as expressed to the Family Consultant were outlined. Those concerns were recorded to include:
·Stalking
·Harassment
·Excessive alcohol consumption
·Anxiety, depression and paranoia
·Chronic gambling
·Verbal abuse
·Mental health issues
The ICL’s comments to the mother were inappropriate. I accept that may not have been the ICL’s intention, however, in two respects, those comments have the potential to cause the
“fair-minded lay observer” to conclude that the ICL “might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
The ICL’s comment referring to keeping the ICL “onside given the significant influence an ICL may have on the final outcome” is capable of being interpreted as a suggestion that the ICL’s favourable consideration of the mother’s case will depend on her willingness to
co-operate with him and that the ICL’s submissions will be determined, not having regard to the best interests of the child, but to the mother’s behaviour towards the ICL.
Whether the state of the evidence, as at the date of the email, was such that it was appropriate for the ICL to have a “firmly” concluded view is not possible to determine in the limited scope of the evidence relevant to this application.
However, the concluding sentence of that paragraph could be interpreted, by the “fair-minded lay observer” as a threat to the mother to advocate against her interests unless she complied with the ICL’s concluded view of the appropriate outcome, or, in the alternate, as an indication that the ICL had already formed a view which would not be amenable to change, no matter what evidence emerged in the process of the expert’s report and the final hearing.
Regardless of the subjective intention of the ICL, the objective effect of that correspondence, read as a whole, would lead the lay observer to apprehend that the ICL would not bring an objective mind to the final hearing.
In those circumstances, the appointment of the ICL will be vacated.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 14 July 2021
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