Manual & Pinner
[2021] FedCFamC2F 468
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manual & Pinner [2021] FedCFamC2F 468
File number(s): CAC 1658 of 2013 Judgment of: JUDGE W J NEVILLE Date of judgment: 2 December 2021 Catchwords: FAMILY LAW – Discharge/recusal of Independent Children’s Lawyer – alleged apprehended bias – application of Guidelines for Independent Children’s Lawyer and s 68LA of the Family Law Act – grounds for recusal of Independent Children’s Lawyer are not made out – apprehended bias not established – Application dismissed – procedural Orders made regarding costs in the light of existing costs Applications to be heard at final hearing in May 2022. Legislation: Family Law Act1975 (Cth), ss.62G, 68LA, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Chapter 7
Evidence Act 1995 (Cth), s.79Cases cited: Antoun v The Queen (2006) 80 ALJR 497; (2006) ALR 51
Bondai & Bretton (No.2) [2010] FamCA 1237
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
In the Marriage of Pagliarella (1993) 16 Fam LR 688
Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
Knibbs & Knibbs [2009] FamCA 840
Langmeil v Grange (No.3) [2011] FamCA 171
Lim & Zong [2001] FamCAFC 165
Lloyd & Lloyd & Child Representative (2000) FLC 93-045
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Naparus & Frankham (No.3) [2021] FamCAFC 150
Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13
Re JRL; Ex parte CJL (1986) 161 CLR 342
T v L (2001) 27 Fam LR 40
W & M & W [2006] FamCA 512Division: Division 2 Family Law Number of paragraphs: 75 Date of last submission/s: 2 November 2021 Place: Canberra The Applicant: Mr Manual on his own behalf Solicitor for the Respondent: Farrar Gesini Dunn Solicitor for the Independent Children’s Lawyer Boland Legal Family Lawyers ORDERS
CAC 1658 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANUAL
Applicant
AND: MS PINNER
Respondent
AND INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Father’s Application in a Case, filed 6th August 2021, be dismissed.
2.The costs of the Independent Children’s Lawyer and of the Mother be reserved and determined at the final hearing in May 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Manual & Pinner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
The parents of now 11, soon to be, 12 (next year) year old X, have been litigating since 2013. The first Application, perhaps curiously, was for Consent Orders, filed on 24th October 2013. In a recently filed Costs Notice, the Mother’s lawyer confirmed that the Mother’s costs now total an eye-watering $196,912.01. The single cent is a curious touch rather than just “rounding up” (or down – perish the thought) the sum. One can only wonder, with understandable regret, what the parents might otherwise have been able to do, either for X and/or themselves, with the time and money they have spent in, and on, the litigation.
There have been times of relative peace and the so-called (and metaphorically-stated) shot and shell of litigious battle have dulled or become somewhat muted. Then the fuse is lit again and everyone, including the Court, (and most worryingly, X) is embroiled in the fracas, distress and cost of proceedings.
The matter is now listed for final hearing over two days on 25th and 26th May 2022.
The immediate Application to determine, among a number yet to be heard but presumably (absent agreement) they will be finalised at the final hearing, is that the Father seeks to have the Independent Children’s Lawyer (“the ICL”) discharged from her office, and presumably another lawyer appointed in her stead.
The parties and the ICL have agreed that this discrete Application be dealt with “on the papers.”
To assist the self-represented Father, on 7th October 2021, the Court forwarded to him pars.6-8 from the High Court decision in Ebner v Official Trustee in Bankruptcy (“Ebner”).[1]
[1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
For the reasons that follow, the Father’s discharge Application regarding the ICL, filed 6th August 2021, must be dismissed. The Mother sought a costs Order against the Father when seeking to have the current Application dismissed. There are outstanding costs Orders and Applications currently before the Court that are to be determined as part of the final hearing. I propose reserving the Mother’s and the ICL’s costs of the current Application and adding it to the other costs matters to be dealt with next May.
Applicant Father’s Orders Sought
The Applicant Father’s Orders sought were contained in his Application in a Case filed 6th August 2021. That Application contained additional Orders which relate to X attending the B Event, and for the Father to have sole parental responsibility pending the final determination of the matter which are not relevant to this judgment. The attendance at the B Event was determined by a Senior Judicial Registrar of the Court on 4 November 2021. The issue of parental responsibility should await determination at the final hearing. The relevant Order sought by the Father is in the following terms:
3. The Independent Children’s Lawyer, Ms Magdalena ORCZYKOWSKI, be removed from the matter.
Respondent Mother’s Orders Sought
The Respondent Mother’s Orders sought were contained in her Response filed 23rd August 2021 and are as follows (emphasis in original):
1.That the Applicant’s Application in a Case filed 6 August 2021 (the Application in a Case) be dismissed.
2.That the Applicant pay the Respondent’s costs of, and incidental to, the Application in a Case.
Independent Children’s Lawyer’s Submissions
The ICL has not formally filed a Response to the Father’s Application in a Case seeking her “removal” as ICL. However, it is evident from her submissions that she opposes such an Order being made.
Applicant Father’s evidence & submissions
The Applicant Father did not comply with Orders to file written submissions. He is not a neophyte when it comes to litigation. As noted in the ICL’s submissions, strictly speaking, the Court could deal with the matter on the basis of non-compliance with its Orders. I will not proceed this way, but issue a general caution to everyone regarding the importance to comply with Court Orders and directions.
The Father outlined his concerns regarding the ICL across a number of Affidavits. For example, and although not formally relied upon, in his Affidavit, filed 6th August 2021, at par.5(a) – (f), the Father outlined a range of issues he had with the ICL, culminating in him complaining that the ICL “has repeatedly refused to engage with me as a self-representative and is therefore showing a bias against, and discriminating against me, in this matter.”
In this Affidavit in the paragraphs noted, the Father complained about the lack of information provided to him about a proposed meeting between the ICL and X. He also complained about the delay in the ICL’s response(s) to him.
Somewhat more formally, the Father’s complaints against the ICL were set out in his Affidavits, filed 1st and 19th October 2021.
In the Affidavit filed 1st October, the matters concerning the ICL are set out in pars.2 – 7 (and Annexures 001 and 002). In later paragraphs, the Father deals with other matters, such as X’s schooling, that are not directly relevant here. Summarised, the Father’s complaints here relate to (a) the attempts to appoint an expert to prepare a family report, (b) attempts to set up a meeting with X, (c) the ICL’s refusal to meet with the Father to discuss certain matters in circumstances where the Father stated that he would meet with the ICL in his capacity as “a legal representative” and not as a parent (it is not in issue that the Father is not legally qualified), and (d) general delay, in the Father’s view, in the ICL’s communication with him.
Annexure 002 is simply correspondence from the ICL to Chambers advising what was, and what was not (in her view), required in terms of the listing of any hearing, including the Father’s Application to discharge her. In my view, this correspondence is unexceptional, and unexceptionable. In the light of relevant authorities set out later in these reasons, it cannot remotely have any relevance to the Father’s current Application. I do not propose to consider this annexure further. Moreover, the issue of X’s school in 2022 is now resolved as between the parents, which means that some of the concerns set out by the Father in the body of his Affidavit (e.g. par.6) regarding the ICL and her attention (or lack of it in his view) being “time sensitive” in my view, is no longer directly relevant.
The Father’s Affidavit, filed 19th October 2021, at pars.4 – 5(a) – (f), canvasses what he describes as “Guidelines for Independent Children’s Lawyers” and the ICL’s conduct in this matter and her compliance, or otherwise, with said Guidelines, particularly in relation to (i) setting up an appointment to meet with X, and (ii) the appointment of an expert. Which set of Guidelines used by the Father was not identified. I mention this simply for completeness given that relevant Guidelines have been issued by National Legal Aid, the Family Law Council and Family Law Section of the Law Council of Australia, by the Australian Institute of Family Studies, ACT Legal Aid (as do most Legal Aid offices around the country), and by the Court. The focus of each set of Guidelines is largely similar but with slight differences along the way.
At pars.7 – 9 of the Father’s Affidavit in question, the issue again relates to the attempts and circumstances to set up a meeting between the ICL and X. At par.10(a) – (c), the appointment of an expert family consultant is discussed. Par.11 simply concludes the Father’s Affidavit stating that it would be obvious to a “fair-minded lay observer” that the ICL has “acted with double standards and bias” towards the Father, and “does not bring an impartiality to the matter.”
For completeness, the terms of pars.5(a) – (f), 6 and 10 are set out in full, thus:
5. The ‘Guidelines for Independent Children’s Lawyers’ states:
a. “The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child's best interests.”
i. Ms ORCZYKOWSKI has not even attempted to resolve matters. She has been the ICL for 8 months and has not met X, discussed, or attempted to resolve anything in all that time.
b. “The availability of funding is a practical constraint.”
i. Funding of Ms ORCZYKOWSKI is not my concern. My concern is X. If Ms ORCZYKOWSKI is not being funded in a way that allows her to perform her duties then the one person who loses out is X.
c. “The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision-making about the proceedings.”; “The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.”; “It is expected that the ICL will meet the child...” and “Develop opportunities for the matter to reach an agreed outcome which best promotes the child's best interests;
i. Ms ORCZYKOWSKI was appointed as the ICL in February 2021. Despite various matters being brought before the Court she has not met with nor discussed anything with X in a timely manner as is expected of her. Had she done so, she would know X’s wishes on the matter and would likely have been resolved out of Court.
ii. Ms ORCZYKOWSKI was aware, after reading all documentation provided to her, that an Order existed for X attending C School. She was also aware of X’s age and therefore the requirement for him to attend a high school in 2022. Despite this, and my Application in a Case to address this issue, she did not meet with him nor attempt to resolve this specific matter. She also only addressed, in correspondence, only two of the three matters in my Application in a Case and simply failed to address the most important matter of her client’s schooling.
iii. Ms ORCZYKOWSKI’s failure to meet with her client, X, and discuss things has meant that she has been unable to address the matter of our trip to the B Event. Had she met with X in a timely manner she would have been able to resolve this matter out of Court but instead has wasted the time and money of both myself and Ms Pinner.
d. “The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.”; “The ICL must be truly independent of the court and the parties to the proceedings.” and “The ICL must at all times be and be seen to be independent and at arm's length from any other party to the proceedings.”
i. Ms ORCZYKOWSKI’s selection of two report writers that were suggested by Ms G showed that she is not acting independently but rather biased in favour of Ms Pinner. See paragraph 10.
e. “The ICL may need to have direct contact with the parties during the course of the proceedings. Such contact must have the consent of the party concerned and should normally be arranged through the parties' legal representatives. If one or more parties are unrepresented, the ICL is to communicate directly with the party and should advise the other parties of the fact of any meeting with an unrepresented party.”
i. It states that if the ICL meets with an unrepresented party then they need to advise the other party. It does not state that the ICL cannot meet with an unrepresented party; in fact it says that the ICL may need to meet with me. When I sought to meet with Ms ORCZYKOWSKI in June she refused. Had she done so she would’ve got more context about the matter than is unavailable in Court documents.
f. “The matter should be relisted and an order sought from the court discharging the appointment if the ICL is of the opinion that: continuation of the appointment would be adverse to the best interests of the child;”
i. Ms ORCZYKOWSKI has been presented with evidence that clearly shows that she has acted in a biased and unprofessional way. She has lied to the Court despite this evidence. She was given the opportunity to remove herself from the matter but refused to do so.
6. During the hearing on 5 October 2021 Ms ORCZYKOWSKI confirmed that she had not responded in writing to my application to have her removed. She stated that my application was “wholly without merit”. She had the opportunity to respond in writing prior to the hearing but chose not to.
…
10. My previous Affidavit said that Ms ORCZYKOWSKI had appointed two report writers – Ms H and Ms D. Details of this were included in Annexure 001 of my Affidavit dated 1 October.
a. Ms H recused not only herself but the entire firm because I had inquired with them about asking them questions to ascertain their suitability. Ms ORCZYKOWSKI knew that my contact meant that the firm was unable to be involved in the matter.
b. Ms ORCYZKOWSKI then proceeded to appoint Ms D as the report writer when she knew that I had also inquired with her about asking some questions. Ms ORCZYKOWSKI was well aware that I had received a response from Ms D that I believe showed bias. The evidence that she was aware of this was provided in Annexure 001 of my Affidavit dated 1 October. Despite knowing that Ms D should also not be able to be involved in the matter she appointed her anyway.
c. Ms ORCZYKOWSKI had, on 26 March, provided her own independently suggested report writers (Mr E and Ms F) but chose to choose not one but two that Ms G had suggested. Both of these should not be able to be selected because I had attempted to question them. This was explained by His Honour.
Respondent Mother’s Submissions
The Respondent Mother’s written submissions, filed on 2nd November 2021, were as follows:
RESPONDENT MOTHER’S SUBMISSIONS IN RELATION TO THE APPLICANT FATHER’S APPLICATION IN A CASE FILED ON 6 AUGUST 2021
1. On 28 October 2021, the Independent Children’s Lawyer filed written submissions in compliance with Orders of his Honour Judge Neville of 5 October 2021, concerning an application for the discharge of the Independent Children’s Lawyer by the Father.
2. Having read and considered the submissions made by the Independent Children’s Lawyer, the Mother is satisfied that the case put forward therein is wholly consistent with her position on the issue in question.
3. The Mother accordingly adopts paragraphs [1] to [16] of the Independent Children’s Lawyers submissions filed on 28 October 2021.
Independent Children’s Lawyer’s Evidence
As noted in submissions below, the ICL relied upon two sets of correspondence, which she described as “Exhibit 1 and Exhibit 2.” This correspondence was provided to the Court and to each of the parties by email dated 24th August 2021.
Exhibit 1 relates to correspondence between the Father and the ICL, by which he sought to have a meeting with her to discuss “this matter”. I understand this to refer generally to the proceeding before the Court. The ICL declined. The Father asked why; she confirmed that such a meeting would compromise her independence and that it was not part of her role to meet with parents. To this, the Father responded, in my view, quite curiously, saying (by email dated 2nd June 2021):
I would be meeting you as a “legal representative” in order to discuss the matter that my “client” has raised with me. I would not be meeting with you as a parent.
Initially as observations only at this stage: (a) as the ICL stated, it is not her responsibility to meet with the parents. It is not like a litigious form of a parent/teacher interview; (b) as earlier noted, the Father is not legally qualified, therefore he cannot meet anyone as, or otherwise claim to be, a “legal representative” (such would be a false representation, among other things); (c) even if there were to be a meeting, no such meeting could take place in the absence of the other party which, presumably, the Father would not want to occur; and (d) it is unclear how, or in what way, the Father (apparently) has had a discussion with himself (“my ‘client’”), which somehow, thereby, entitles him to have a discussion with the ICL. It does no such thing. Added to all this, the ICL does not meet, as she said, with either parent, nor with any lawyers who act for either of them (at various times past, the Father has been legally represented). The ICL declining to meet with the Father (or any parent) is simply “standard operating procedure”, and conforms to any and all of the Guidelines noted above regarding best practice for family lawyers and ICLs in particular. While retaining a general and wide discretion in each case, the ICL here has chosen to exercise it in the way that she has, namely not to meet with either parent. In the highly conflictual circumstances here, in my view the ICL chose the better and safer course to meet with neither parent.
The ICL’s second modest tranche of correspondence related to an attempt to set up a meeting between herself and X. The correspondence bridged a time period between 27th May 2021 and 1st July 2021. There appears to be various, unexplained gaps in the correspondence, which led the Father to make further inquiry of the ICL. She replied, according to this small collection of emails, on 1st July 2021, confirming that the meeting with X did not go ahead. The ICL explained that the delay was occasioned because of the ongoing difficulty in the appointment of the expert, which is discussed below. The ICL stated in her last correspondence on this aspect as per her Exhibit 2 that she delayed any meeting with X until she had certainty regarding the expert who would do a report. She confirmed that she would contact everyone to arrange the meeting with X once she could provide him with more definite information.
In this regard, it is perhaps sufficient to note the following.
By way of Orders made on 10th February 2021, the Court directed the parties to advise the Court whether there was agreement to obtaining an expert report or a report pursuant to s. 62G of the Family Law Act 1975 (Cth) (“the Act”). In correspondence copied to the Court, the Father expressed concern about being contacted by the Mother’s lawyer to propose a range of experts (and their respective costs). In an early email, dated 8th March 2021, the Father stated, among other things:
It is obvious by these actions [of listing some possible experts and their fees] that this was pre-planned with the clear aim of obtaining a biased report from someone who will write what they are being paid to write by Ms Pinner [the Mother]. Ms G [the Mother’s lawyer] failed to do what was required in relation to finding a report writer.
Presumably such a fearful and jaundiced view of experts arises for the Father because of his lack of experience and understanding (in no way critically) of how the legal process for such procedural matters operates. It is sufficient (one hopes) simply to record that all experts are required to abide by Practice Direction regarding the preparation of Reports, and that the expert must comply with long-standing rules regarding reports as prescribed by, among others, the High Court. Experts are not usually bought or paid off, as the Father, regrettably, seems to think.
By email dated 10th March 2021, the Court cautioned both parties about their “needlessly fractious and resource-draining conduct of the matter” and the potential risk in the future of an adverse costs Order. The needlessly fractious and often mis-guided conduct by one or other of the parties continued. That said, from an early time, relatively speaking, the Mother confirmed that she would fund completely the cost of the expert Report.
Part of the needlessly fractious, and ill-informed, responses came vividly to light with the Father’s email dated 25th March 2021. Relevantly, in this email the Father confirmed that he had contacted the psychology practice in Sydney at which three nominated psychologists work. The Father objected to these experts coming from the same practice on the grounds, among other things, of diversity, and on the further grounds of both cost and locale (Sydney). He averred that the usual range of cost for the report required would be (in Canberra) between $3000 - $5000. From day to day experience with such matters, the Court may take judicial notice of the general range of the costs of family reports, which must lead to an observation to the effect that the Father’s assessment of costs is quite wide of the mark, even in Canberra.
Most immediately relevant he confirmed that he had attempted to contact each of the experts nominated. Each had “actively refused to answer questions” that the Father had which, he said, would have enabled him to assess their “suitability.” All of this is in circumstances where, apart from his long experience in family law litigation, the Father holds no qualifications or experience in any relevant discipline such as psychology. How or why he would presume to examine experts in disciplines in which he is not relevantly qualified, not to mention the risks he ran for himself and the proceedings, was remarkable and concerning.
By email dated 8th April 2021, the Father confirmed that he had undertaken the same or similar “assessment” process to determine the suitability of three such experts. The results, he confirmed, (in my words) were unsatisfactory because he was not able to ascertain the suitability of each expert.
Giving the Father the benefit of the doubt, his conduct was alarmingly ill-advised. Among other things, in the event that he had been able to speak with any of the nominated experts, he risked immediately having them disqualified because of apprehended bias. No party speaks to an independent expert, and certainly, never alone without the other party. But no such preliminary discussion is either warranted or appropriate in any event. No family law practitioner (or in almost all other areas of law) would ever nominate, and no Court would ever appoint, a person as an independent expert, unless satisfied that such person was both suitably qualified and relevantly experienced. Both of these criteria are – again – standard operating procedures regarding experts. This is in accordance with High Court authority and Court Rules.[2]
[2] Among many cases regarding experts and the requirements for same, see the High Court’s observations and outline of principle in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588. Further, Chapter 7 of the Federal Circuit and Family Court of Australia (family Law) Rules 2021 provides in significant detail the processes regarding appointment of experts, as well as their formal duties as set out in Division 7.1.5 “Expert witness’s duties and rights.”
In addition to all of the above, section 79 of the Evidence Act 1995 (Cth), of which the Father would most unlikely be aware, governs the requirements of expert reports. Thus, not for the first time, so much time and resources were expended, needlessly, on matters that are clearly and uncontroversially governed by case law, statute, and practice directions. Moreover, experts invariably provide the report by annexing it to an Affidavit, which therefore must be sworn or affirmed to be true and correct. No expert worth their salt, so to speak, is ever going to risk her or his professional reputation and standing by providing a report that is not going to “pass muster.” And there is always the rigour of cross examination during the hearing to test further any evidence put before the Court, by parties and expert.
In view of the intractable (and otiose) contest between the parties, by email dated 9th April 2021, the Court directed the ICL to choose an expert. But this was, unsurprisingly and regrettably, not the end of this petty and needless saga.
By email dated 9th April 2021, the ICL advised that, in her view, Dr H should be appointed the relevant expert. By email dated 5th May 2021, the ICL advised the Court, and the parties, that there was a problem with the appointment of Dr H. The ICL indicated that the issue at hand warranted the matter being re-listed and discussed in open Court. This was attempted at a reasonably early date but due to the Father being called for jury duty, the date had to be amended to a later time. Of course, this is no criticism of the Father.
At times there were suggestions by the Father that the ICL had inappropriately communicated with the Mother’s lawyer regarding the appointment of an expert. In this regard I need only note how completely inappropriate were the Father’s actions in attempting to consult and effectively to interview experts to determine their “suitability.” Among many other things, taking this course potentially threatened not only the work of any expert, but thereby he was, in certain respects, usurping the role of the Court in making significant decisions regarding the conduct of the litigation. He was also potentially compromising the work of an expert, and in turn the whole trial because of a flawed or otherwise compromised report. All of this could have caused immediate risk to X (in the long term) and to the Father in the course of the trial had it not been exposed much earlier. As already noted, it came to light precisely because of the Father’s correspondence with the Court regarding his pursuit of the experts. Potentially he also risked being injuncted by the Court for his actions in relation to his dealings with the potential experts.
Ultimately, but not until 26th August 2021 was there agreement that an expert from a nominated psychology practice in Sydney (J Psychology) would be appointed. Terms of reference for that expert were also agreed and made on that occasion together with an Order (Order 6) confirming that the Mother would be responsible for the fees of the expert. It certainly and plainly was a long and winding road that led to the expert’s door. It is not intended to be trite or anything else to observe that some legal advice to the Father would almost surely have obviated so many wrong turns and blind alleys that were pursued by him that quite clearly delayed this relatively straight-forward process of securing and appointing an expert. But pursue doggedly those byways and highways he did.
Put another way, had the Father been advised, or otherwise had he consulted any or all of the following, he should have learnt and/or otherwise been advised that there are in place multiple barriers and processes regarding both the appointment of an expert, and the production and use of an expert report, thus: s.79 Evidence Act 1995 (Cth); Dasreef Pty Ltd v Hawchar; and Chapter 7 of this Court’s Rules. The terms of s.68LA of the Act were also relevant. Had any of these statutory, regulatory and High Court authority been consulted, (hopefully) there must have been a very good chance that so much time, energy and needless consumption of resources (financial and other) would not have been wasted on ill-conceived [attempted] interviews.
Independent Children’s Lawyer Submissions
The ICLs submissions, filed on 28th October 2021, were as follows:
SUBMISSIONS OF THE INDEPENDENT CHILDREN’S LAWYER
Authorities Relied Upon
Bondai & Bretton (No. 2) [2010] FamCA 1237
Charisteas & Charisteas and Ors [2021] HCA 29
Dean & Susskind [2012] FamCA 897
Knibbs & Knibbs [2009] FamCA 840
Leroux & Leroux [2015] FamCA 1128
Lim & Zong [2021] FamCAFC165
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Lorde & Chu (ICL Discharge) [2016] FCCA 1156
Naparus & Frankham (No. 3) [2021]
Nulty & Kendricks [2019] FCCA 2720
Paco & Racina [2014] FamCAFC 195 at [52]
Sawyer & Sawyer [2015] FamCA 982 [79]
The Application Before the Court
1.These submissions accord with the Orders of his Honour Judge Neville of 5 October 2021 for the filing of written submissions concerning an application for the discharge of the Independent Children’s Lawyer brought by the father.
2.The father has not complied with the Orders of his Honour to provide written submissions. The father has instead filed and seeks to rely on an additional affidavit filed on 19 October 2021. The father is in breach of Orders but is also non-compliant with rule 5.08 and has made no application for relief as required by rule 1.34. It is therefore open to the Court to simply dismiss his application pursuant to rule 1.33 if it so chooses.
The Assertions of the Father
3.The father’s case is contained across an affidavit filed on 1 October 2021 and an affidavit filed on 19 October 2021. Because of the confused nature of the father's case counsel has attempted to distil its elements.
4.As far as counsel can determine the father’s case is that the Independent Children’s Lawyer should be removed for apprehended bias because:-
a. She has not been ‘professional’; and
b. She has not been independent or ‘unbiased’.
5.The father’s complaint concerning professionalism seems to be: -
a. A suggestion that the ICL arranged an appointment to meet with the child and subsequently cancelled that appointment when the scheduled interim hearing was delayed;
b. He received no correspondence informing him of that cancellation until he made two requests for an update; and
c. What he asserts are breaches of the Independent Children’s Lawyer Guidelines.
6.The father’s complaint about the apprehension of bias appears to rest on:-
a. A perceived difference in response times to communication between responses to him and responses to the mother’s solicitors;
b. That the Independent Children’s Lawyer selected one of the expert’s proposed by the mother;
c. What he says is a delay in attendance to correspondence and taking a position that absent any pressing of an application about the High School the child will attend that is a matter to be determined at a Final Hearing; and
d. The father’s assertion that the Independent Children’s Lawyer has “lied to the Court”.
The Authorities
7.The Court has helpfully provided the father with a summary of the relevant parts of Ebner which would have assisted the father in his application. The Independent Children’s Lawyer relies on the outline of relevant leading cases provided by Judge Neville in Lorde & Chu (ICL Discharge) [2016] FCCA 1156, most specifically the extracts from Knibbs & Knibbs [2009] FamCA 840, and, in a similar vein, [43-46] inclusive of Nulty & Kendricks [2019] FCCA 2720. In addition, the Independent Children’s Lawyer relies on Johnson v Johnson (2000) 201 CLR 488 at 492‑493, and Charisteas & Charisteas and Ors [2021] HCA 29.
Submissions Concerning Professionalism Complaint
8.The suggestion that a breach of Independent Children’s Lawyer Guidelines is cause for the removal of an Independent Children’s Lawyer is flawed. The guidelines are just that, guidelines. The nature of the guidelines is that they are inherently adapted to the situation in each case and must be tailored by the professional judgment of the individual Independent Children’s Lawyer. The compliance with the Independent Children’s Lawyer Guidelines is not a matter for the Court to monitor or to be invited to monitor, such is a matter for the relevant Legal Aid Commission who has appointed the Independent Children’s Lawyer.
9.Even if the Court were to apply the guidelines strictly, the father’s second affidavit makes it clear he has not understood the guidelines (most notably in his constant reference to his child as the Independent Children’s Lawyer’s client when the guidelines make it clear the child is not a client) and has sought to tailor them to what he perceives as shortfalls in conduct. Any independent assessment of what the father considers shortfalls in conduct could not come to the same conclusion as the father. That is so particularly where the father descends into pure speculation as to how matters would have resolved if the Independent Children’s Lawyer had done unspecified things.
10.In a similar vein, the father’s complaint that the Independent Children’s Lawyer refused to meet with him is in breach of the guidelines is flawed. The guidelines use the phrase ‘direct contact’ which as a matter of law has always included contact via email. That is before one turns to the father’s somewhat bizarre evidence that he would not be meeting with the Independent Children’s Lawyer as a party but as a “legal representative” which at best was sophistry and at worse might well constitute a criminal offence. This can be seen at ICL Exhibit 1, which also disproves the father’s assertions that his communications are always without prompt response. Indeed, the father’s assertion that the outcome of a meeting with the Independent Children’s lawyer would have resulted ‘in more context than is in court documents’ demonstrates a misunderstanding of the role of the Independent Children’s Lawyer which must inherently be based on the evidence that is available to the Court rather than secret backdoor ‘context’ provided by one party.
11.Concerning the complaint about the cancelled appointment, one needs only observe ICL Exhibit 2. The Independent Children’s Lawyer made clear the cogent reason for a delay in that appointment. That correspondence also demonstrates that the father has either completely misread or deliberately misconstrued the Independent Children’s Lawyer’s correspondence by suggesting she indicated that the appointment was cancelled due to a hearing. That was not even close to what the Independent Children’s Lawyer communicated. There was no need for the father to be made promptly aware of the cancellation of any appointment for the child. Similarly, a complaint that he did not receive correspondence to indicate a cancellation does not properly found a lack of professionalism nor could it found an apprehension of bias. It is unclear whether any appointment was ever made and in any event, as the Independent Children’s Lawyer outlined in ICL2, circumstances changed. The father’s conclusions about what the Independent Children’s Lawyer should have done and speculations about what she did do are things he is entitled to have but do not found the basis for a rational complaint.
Submissions Concerning Apprehended Bias
12.No case can be properly made concerning an apprehension of bias. Sadly, the father appears to have somewhat of an obsession with the concept of ‘bias’ and an opinion of his ability to assess when it has occurred given his extraordinary contact with the offices of various experts to interview experts so he could determine whether they were biased. That is unfortunate and must be difficult to live with, however, his perception is not what can found the basis of an application in law.
13.The father’s complaints about his perceptions concerning differences in response times cannot be made out considering ICL1 and in any event, it would be difficult to understand how such matters could lead a reasonable person to perceive bias.
14.The suggestion that the Independent Children’s Lawyer is biased because she selected an expert suggested by the mother having suggested her own is simply ridiculous. The mother suggested well known, experienced and acceptable experts who were available at the time she made enquiries. The fact that an Independent Children’s Lawyer selects an expert in those circumstances cannot lead to any apprehension of bias. Experts are governed by a code of conduct and are independent. The implied suggestion by the father is that somehow the experts suggested by the mother are not independent and in selecting one of them the Independent Children’s Lawyer is somehow biased.
15.The father submits that the Independent Children’s Lawyer should have pressed the issue of determination of an application made concerning the child attending High School. He suggests that she did not demonstrates that she is biased. The application is the father’s application, it is not for the Independent Children’s Lawyer to press. One notes the Independent Children’s Lawyer would be entitled to assume such could be determined at a Final Hearing which would have the benefit of expert evidence and the testing of the evidence. It would be difficult to see how this proper position could be framed as one of apprehended bias.
16.The father’s assertion that the Independent Children’s Lawyer has “lied to the Court” is contained in paragraphs 5.f.i. and 7.b. of his affidavit of 19 October 2021. The exact nature of this assertion is not ever made out. At best, the father’s first affidavit attempts to engage in some form of deductive reasoning to try to impute that there was correspondence he did not know about and having deduced that he then asserts that the Independent Children's Lawyer lied. Such allegations of serious misconduct require proper evidence to allow the Court to understand and evaluate them. Evidence is not to be inferred from speculations, deduction and a lack of transcript, where such serious matters are alleged. The father has not made out the requisite evidentiary burden nor properly explained his plain assertion in a way that allows it to be adjudicated by the Court. At best his complaint remains that there may have been some correspondence about the cancellation of an appointment he was not given and one would expect the response of the reasonable person concerned in assessing bias to be a rather blunt “so what?”. Such a matter could not form any reasonable apprehension of bias and at its highest would fall within the very ready acknowledgement in the authorities that Independent Children’s Lawyers are subject to human frailty and not to be discharged without proper cause.
Outline of Principle
There are three points of reference for this Application: (a) s.68LA of the Act, (b) a number of High Court decisions regarding apprehended bias, and (c) various Full Court decisions that deal specifically with recusal Applications in relation to ICLs.
The terms of s.68LA are as follows:
Role of independent children's lawyer
When section applies
(1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children's lawyer
(2) 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 in what the independent children's lawyer believes to be the best interests of the child.
(3) 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.
(4) The independent children's lawyer:
(a) is not the child's legal representative; and
(b) is not obliged to act on the child's instructions in relation to the proceedings.
Specific duties of independent children's lawyer
(5) 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 relate 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.
Disclosure of information
(6) Subject to subsection (7), the independent children's lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children's lawyer.
(7) The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
According to long-established practice and authority, in the hierarchy of considerations, courts will always look, in the first instance, to the words of the statute in question. This will always occur before any court descends to look at and consider “extrinsic materials. The various Guidelines regarding best practice principles for family lawyers and for ICLs around the country is a somewhat lower order example of extrinsic materials. This is not to say that such Guidelines are not important; they clearly are. However, the primary point of reference will first and foremost be the terms of s.68LA of the Act. In this regard, it is sufficient to note the following from the Full Federal Court in Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd, at [75]:[3]
Often, the relationship between context (including pre-enactment history), purpose and text will be illuminated by the subject matter of the statute, as well as by the approach to expression by the drafter. Statutes drafted in broad simple language that set a principled framework for a well-known body of law may well be approached with an eye to context, and especially pre-existing law. On the other hand, in legislation that is closely structured and finely worded, the importance of the text may be paramount: Joffe v The Queen; Stromer v The Queen (2012) 82 NSWLR 510 at 518 [36]. Nevertheless, even in closely structured and finely worded legislation such as the TPA and ASIC Act, context and purpose may be important. Nothing in Alcan or Consolidated Media Holdings requires a decision about the clarity of meaning of text without reference to context and purpose. What was said in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 … remains binding authority.
[3] Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13.
The next point of reference will always be the articulation of principle by superior courts on that section, and equally so in relation to relevant principle regarding apprehended bias.
All of this is also to confirm that the terms of the Act, and the principles articulated by superior courts (especially by the High Court of Australia), will always take precedence over any provision in any set of Guidelines.
Thus so here: the terms of s.68LA of the Act take precedence over the terms of the Guidelines referred to by the Applicant Father. It is best to consider later in these reasons the operation of s.68LA in the light of the principles set out below from various judicial authorities and obviously in the light of the various claims made by the Applicant.
High Court Authority
In Ebner, noted earlier in these reasons, at [6] – [8], the High Court said (internal citations omitted):
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Johnson v Johnson, at [12], the High Court confirmed the “qualifications”, so to speak, of the “fair-minded lay observer”:[4]
… At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
[4] Johnson v Johnson (2000) 201 CLR 488.
While these statements of principle apply directly to the conduct of judicial officers, they are also generally applied to other decision-makers and office-holders, usually with some slight adjustment so that proper regard is taken of the nature of the body or person making the decision.[5] The basal principle, however, remains the same.[6] This is to say that the essential and objective test to be applied is, for example, as stated by Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection at [56] (internal citations omitted):
The test for apprehended bias is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide". A finding of apprehended bias is not to be reached lightly.
[5] See Ebner at [4]; and Edelman J in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (“CNY17”) at [136].
[6] See, for example, the High Court’s comments in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, regarding alleged bias against a Minister making a decision under a particular statute; Isbester v Knox City Council (2015) 255 CLR 135, regarding alleged bias against a decision by a council officer; and CNY17, regarding a decision by the Immigration Assessment Authority and then by the Minister.
At [58] in the same judgment, their Honours went on to say (internal citations omitted; emphasis added):
In applying the test, "it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made". It is also necessary to consider "what is involved in making the decision and the identity of the decision-maker". This draws attention to the fact that the test must recognise "differences between court proceedings and other kinds of decision-making". The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]".
It is sufficient and important here simply to note that the ICL is not, in any material respect, a relevant “decision-maker” regarding any specific issue that is to be determined by the Court. And as noted below, long-standing statements of principle confirm that (a) it is inevitable that a decision by an ICL regarding a particular view is likely to disappoint one or other party, and (b) simply by taking a particular stance on a specific issue does not, without more, warrant recusal or discharge. Subject to what is considered later in these reasons, the ICL’s responsibilities, thus far, have been largely concerned with matters that are more administrative or facilitative, such as arranging appointments with a Court-appointed expert, and with the child who is the subject of these proceedings. The Father’s third area of complaint relates to the expedition of responses from the ICL to correspondence. None of these matters, as important as they generally are, go to any issue that is to be determined by the Court.
Plainly the Applicant Father has challenged, often-times very strongly, some of the ICL’s decisions in relation to these matters and the processes undertaken regarding them. Those matters are considered in more detail below. However, as preliminary observations, (i) usually, having regard to the context and nature of the so-called “decision-maker” here, administrative tasks of the kind outlined or under consideration here do not usually warrant judicial intervention, or relevantly indicate or establish bias, and (ii) as just stated, “context” is often, and usually is, of great significance. That is certainly the case here.
Other authorities
A helpful review of relevant authority was provided by Murphy J in Knibbs & Knibbs.[7] Beginning at [33], his Honour said (emphasis added):
[7] Knibbs & Knibbs [2009] FamCA 840 (“Knibbs”).
[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.[8] That “test” has not been satisfied here. Apart from the Father’s “complaints”, there is no evidence that would satisfy let alone warrant any adverse finding against the ICL.
[8] 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.[9]
[9] 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.”
As noted earlier, 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.[10]
[10] 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:[11]
[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.
[11] 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):[12]
[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.
[12] 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.[13] 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.
[13] Antoun v The Queen (2006) 80 ALJR 497; (2006) ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352.
Finally, it is important to note three things.
First, I simply recall the comment by the Full Court (recorded above) in Lloyd & Lloyd & Child Representative (“Lloyd”), cited with obvious approval by Murphy J in Knibbs, at [39], thus (emphasis added):[14]
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.
[14] Lloyd & Lloyd & Child Representative (2000) FLC 93-045.
Secondly, as an additional reason for the significant care, indeed extreme caution, a Court should exercise in any Application to discharge an ICL (the appointment of course not giving that person any carte blanche licence regarding, and certainly no absolution from, the proper discharge of the duties set out in s.68LA of the Act), in Lloyd at [30(ii)], Holden CJ said:
There is also a public policy consideration. To date … the fees of the children’s representative have been met by Legal Aid. … these parties have been arguing in this Court over their children for a period approaching 6½ years. C has been involved in the proceedings for about 4½ of those years and, no doubt by virtue of that fact, has a thorough knowledge of what has gone on between the parties.
Any new solicitor would have to wade through the four volumes of the Court file to acquire the necessary knowledge to adequately represent the children. That, of itself, would involve considerable expense to the Legal Aid Commission, the resources of which are not infinite. That is not to say that this consideration should prevail where obvious impartiality has been demonstrated to the satisfaction of the Court.
There are currently four, soon to be five, volumes of the Court file in this matter. And as noted at the outset of these reasons, these parties have been litigating over X, on an off, since October 2013. True it is that the ICL has been in the matter only since the beginning of 2021, but otherwise the comments of Holden CJ, in my view, clearly have particular resonance here.
Thirdly, the authorities to which I have referred, in particular those from the High Court and from the Full Court, have been repeated in very recent Full Court decisions, such as Naparus & Frankham (No.3) and Lim & Zong.[15] This is also to say that the principles concerning apprehended bias remain well-established and consistently applied with no relevant deviation or amendment. It is their application to the specific facts in each case (including here), and the context of the matter at hand, that are most immediately relevant.
[15] Naparus & Frankham (No.3) [2021] FamCAFC 150, and Lim & Zong [2001] FamCAFC 165.
All of this said, in a slightly different but still related context, in Johnson v Johnson (a family law matter), the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), at [13], noted that the “rules and conventions” regarding judicial (and I interpolate, some other relevant) practices are “not frozen in time”, and that they develop “to take account of the exigencies of modern litigation.”[16] These exigencies include, the Court noted by way of example, trial judges responding to “more active case management.”
[16] Johnson v Johnson (2000) 201 CLR 488.
Applying the same comments, mutatis mutandis, to the position of the ICL, and subject to the detail of principle already recorded earlier in these reasons, the duties and responsibilities of an ICL must relevantly change to the degree that the “exigencies of modern litigation” require, including “more active case management” as required by the Court.
Consideration & disposition
Given the material already canvassed and comments on it in the course of these reasons, I need only, and will deal here summarily, in order, with the issues previously identified regarding the Father’s recusal/discharge Application against the ICL. There is, of course, quite some overlap between, and conflation of, the issues as argued by the Father, namely:
(a)the attempts to appoint an expert to prepare a family report;
(b)attempts to set up a meeting with X;
(c)the ICL’s refusal to meet with the Father to discuss certain matters in circumstances where the Father stated that he would meet with the ICL in his capacity as “a legal representative” and not as a parent (as already noted, it is not in issue that the Father is not legally qualified); and
(d)general delay, in the Father’s view, in the ICL’s communication and correspondence with him.
For the following summary reasons, in the light of the outline of principle and the discussion of the facts of the matters noted above, the grounds for recusal/discharge of the ICL are not made out and must be dismissed. Indeed, for the reasons set out above, and those that follow, the Father’s Application was misconceived:
(a)Context is here even more important than usual. This is to say that, by his own actions in regularly trying to interview and assess experts for their suitability, the Father created extraordinarily difficult circumstances in which the ICL (and the Mother) had to operate. His actions in this respect were completely inappropriate and potentially dangerous. They necessarily delayed the appointment of an expert, which in turn delayed other procedures in the litigation. Giving appropriate allowance for the self-represented Father, his actions here displayed a complete lack of appreciation of proper process. The risks his conduct posed were set out earlier in these reasons. It seems that he never took advice about any of the matters earlier recorded. Had he done so, almost all matters in contention included in this Application, and likely some beyond, could have been readily avoided. Certainly, such advice would have informed the Father of the range of long-established procedures concerning, and the use of, expert reports. Information regarding these matters is part and parcel of every lawyer’s procedural kit-bag, so to speak, things like relevant sections of the Evidence Act 1995 (Cth), cases regarding the requirements for experts and their reports, and in turn, on the facts here, procedures for their appointment, and things to avoid, such as one party meeting them to assess their suitability;
(b)Viewed objectively, in my view, the fair-minded, reasonably well-informed lay observer would assess that the actions of the Father regarding the appointment of the expert (by trying to interview them to assess their suitability) potentially so compromised that process that it made almost all other actions by anyone else, including the ICL, regularly and almost utterly fraught. This is not to absolve everyone else from any delay in communication or the like. But it did make communication and all else so much more difficult and potentially problematic. While there can be contests from time to time in other matters regarding the appointment of experts, there has never been one in my reasonably extensive judicial experience where interventions by one party has so potentially compromised the process as has occurred here;
(c)Accepting that no one is perfect, and that frailty, fracture and error to varying degrees attends most human endeavour, the actions of the Father in very large measure framed and governed, to a very significant degree, the actions and responses of the ICL. Again giving him the benefit of the doubt as a self-represented litigant, primarily (likely) through ignorance about the role of the ICL, and some selective but, regrettably, ill- or uninformed and untutored understanding of principles of long-standing regarding the role and responsibilities of experts, on the one hand, and ICLs, on the other, as well as the well-known requirements and principles that attend expert reports, the Father’s actions coloured and necessarily dictated the responses of the ICL in relation to these matters;
(d)On the limited evidence before the Court, I accept that some communication between the parties and the ICL, on one or other side, or all sides, could have been better, both in relation to matters concerning experts, and regarding meetings (proposed or otherwise) with X. Timeliness in responses is important. Failure to respond in a timely manner is not, however, without significantly more, an indication of bias against the Father. It can be irritating; it can be (and seemingly was) considered by some to be a slight or insult of some sort. But on the facts here, it does not rise to such strong action as to execute, so to speak, the appointment of the ICL. This is also against the background of principle whereby superior courts have consistently cautioned against acceding to recusal or discharge applications too readily;
(e)Regarding the complaint in relation to the ICL declining to meet with the Father, in my view, such meetings, especially without the other party, are potentially, if not necessarily, fraught. Again given the Father’s need to assess the suitability of experts, there must at least be a concern that part of the Father seeking to meet with the ICL could relate to him assessing the suitability of the ICL for the case in hand. His statements that he would be meeting with the ICL, not as a parent but on behalf of his client, and that he would or could convey information and context that is not discernible on the papers filed, could only add to the heightened concern. For my part, the latter suggestion or indication regarding conveying information or views not available on the evidence filed is a matter of significant concern. The Court can only deal with matters on the basis of evidence filed. To suggest that there may be other evidence available or of relevance that is not before the Court is very troubling. No less troubling is the indication of the Father adopting a professional persona of a lawyer, which he is not, to act on behalf of “his client’ but who is clearly himself, raises too many questions here and warrants, perhaps, some attention by the expert. Presumably, hopefully, there is an innocent and untroubling answer. We shall see;
(f)Finally, the reason given by the ICL for not [yet] meeting with X, namely she was awaiting details regarding the expert appointed was another exercise of discretion regarding essentially administrative matters. To state the obvious: (a) making such appointments is essentially an administrative matter; and (b) details regarding such appointments should, as far as possible, be communicated in as timely a way as possible.
In my view, considered through the lens of the fair-minded, reasonably well-informed lay observer, the Father’s complaints set out in both of the Affidavits relied upon are insufficient to constitute any form of apprehended bias against the ICL. They are complaints, a number of them understandable, perhaps. Most of them arise from significant levels of lack of proper information and understanding of certain, standard processes. Hopefully, with the assistance of legal advice, courtesy of a recently made s.102NA Order that will result in legal representation for the Father at the forthcoming hearing, smoother sailing and fairer winds in the lead up to, and in the running of, the final hearing, will be the order of the day.
Otherwise, and in addition to these reasons, I accept and adopt the submissions filed on behalf of the ICL, which in turn were adopted by the Mother.
The Father’s recusal/discharge Application must be dismissed. For the reasons given, it was entirely misconceived. Much of it arose out of varying degrees of ignorance which almost any lawyer would have, and should have, been able to resolve and save the mis-guided actions of the Father. Those actions, in very large part, conditioned the actions and responses of the ICL. Her actions and responses do not relevantly constitute any ground for bias and in turn for her recusal.
In her Response, the Mother sought an Order for costs. There are outstanding costs Orders and Applications currently before the Court that are to be determined as part of the final hearing. I propose reserving the Mother’s and the ICL’s costs of the current Application and adding it to the other costs matters to be dealt with next May.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Dated: 2 December 2021
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