Myron & Milson (No. 2)

[2018] FamCA 1040

FAMILY COURT OF AUSTRALIA

MYRON & MILSON (NO. 2) [2018] FamCA 1040

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks to discharge the independent children’s lawyer – Where the father also applies for an injunction restraining the mother’s lawyer from continuing to act for her in the proceedings – Where the father has failed to establish a proper basis for the independent children lawyer’s removal and such an injunction and his applications are dismissed.

Family Law Act 1975 (Cth)

Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd& Child Representative (2000) FLC 93-045

APPLICANT: Mr Myron

RESPONDENT: Ms Milson

INDEPENDENT CHILDREN’S LAWYER: Ms Tracey Geysen

FILE NUMBER: BRC 3628 of 2018

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 November 2018

REPRESENTATION

THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr George (pro bono)

SOLICITOR FOR THE RESPONDENT: KLM Solicitors (pro bono)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CNG Law

Order

it is ordered

1. The application in a case filed 25 October 2018 seeking the removal of the independent children’s lawyer and an injunction restraining KLM Solicitors from acting for the mother be dismissed.

2. Costs of an incidental to the application be reserved to the trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myron & Milson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3628 of 2018

Ms Milson

Applicant

And

Mr Myron

Respondent

REASONS FOR JUDGMENT

1. Ms Milson and Mr Myron are the divorced parents of four children, B aged 15, Z aged 13, X nine and Y aged seven.

2. The parents are in dispute about what parenting order should be made in relation to their children. Their competing applications have been set down for a final hearing over five days commencing 11 February 2019.

3. On 27 November 2018 there were two applications before me for hearing.[1] The first, an Application - Contravention filed 24 October 2018, was dismissed because the father failed to establish a prima facie case that the mother had contravened an Order. In the remaining application the father seeks the removal of the independent children’s lawyer (“ICL”) and an injunction restraining the mother’s lawyers from continuing to act for the mother. The latter application was filed on 25 October 2018.

   [1] I note the father elected to discontinue an application for litigation funding by filing a Notice of Discontinuance on 25 November 2018.

background

1. Before turning to consider the application I note by way of background that the parents were married for fifteen years before separating in 2015 and divorcing in 2018. As noted above the parents have four children.

2. After separation the child B lived with his father. B has lived with a number of people since March 2018. He has expressed suicidal thoughts and is consulting a psychologist. He has not spent any time with his father since 3 April 2018 and, according to his mother, has expressed a wish not to see his father. While cavilling with the reasons for same, it seems the father accepts that B does not currently want to see him. B also made and recanted allegations that he was sexually abused by his mother when he was aged ten or eleven. On 16 April 2018 B allegedly told his mother that his father put him up to making the allegations.

3. Z remained living with her mother after separation. She has not spent time with her father since March 2018. She is also consulting a psychologist and has at various times been an in-patient at the K Hospital as a result of concerns for her mental health.

4. X and Y remained living with their mother after separation but spent weekly time with the father until the mother unilaterally stopped that arrangement in March 2018. Their time with the father was resumed pursuant to an Order made by me on 8 June 2018.

5. When this matter was before me on 4 June 2018 I noted that an incident of a sexual nature between B and Z in March 2018 had sent this family spiralling into crisis. Criminal proceedings were commenced against B as a result of the incident. Those proceedings were recently finalised through the Queensland criminal restorative justice program.

6. To compound an already fraught situation the father and B were charged with stalking offences against the mother arising out of an incident that occurred on 1 April 2018. A temporary protection order was made in favour of the mother and the other children. That order was varied on 10 May 2018. It does not prevent the children spending time with their father pursuant to order or written agreement.

7. In April 2018 the parents agreed for the father’s time to recommence with X and Y supervised by third parties and an Order was made to that effect on 9 April 2018. The mother sought to suspend the children’s time with the father but her application to do so was dismissed by me on 8 June 2018.

8. X and Y spent time with the father from June 2018 supervised at a contact centre. In October 2018 the contact centre charged with the supervision of that time withdrew their services. The parents are in dispute about the reasons for that, each blaming the other.

9. The mother has made very serious allegations of family violence against the father including ‘holding her by the throat’. While her evidence at the interim hearing in June 2018 on this issue generally lacked particularity, protection of a party or child from family violence is a matter that will no doubt be considered at the trial of this matter in February 2019.

the application to remove the independent children’s lawyer

1. Section 68LA of the Family Law Act 1975 (Cth) (“the Act”) sets out in some detail the obligations imposed on a person appointed to act as an ICL. As the father’s submissions repeatedly referred to particular subsections of the section I set it out in its entirety for ease of reference.

   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.

issues

1. The father argues that the ICL should be removed for the following reasons:

   a)Failing to act in the best interests of the children;

   b)Failing to act impartially in her interactions with the parents;

   c)Failing to bring to the Court’s attention matters of significance relating to the children’s safety;

   d)Failing to take steps to minimise the trauma to the children, in particular, B;

   e)Failing to facilitate a resolution of the matter; and

   f)The ICL is likely to be a material witness in the proceedings.

evidence relied upon to support the father’s contentions

1. The father contends that on 25 May 2018 his lawyer wrote to the ICL and stated, among other things:

   It is contended that a reading of the ICL’s correspondence by the objective person would reveal that the ICL is failing to show insight and appears to lack impartiality. We assume it is understood that the ICL’s correspondence demonstrates a clear partially (sic) towards the mother’s case.

2. This contention can be disposed of readily because the letter about which complaint is made is not in evidence before me.

3. On 5 October 2018 the father’s lawyer informed the ICL of concerns arising out of what were described as ‘disclosures’ made by the father’s young sons during supervised time, namely that they and their sister had been permitted to watch inappropriate movies while in their mother’s care. It is alleged that no response to the letter was received.

4. On 15 October 2018 another letter was sent to the ICL[2] contending that the mother had failed to comply with an order requiring the mother to keep the father and the ICL informed about changes in B’s circumstances. The letter stated that the father had been informed by a third party that B had been “re- committed” to the O Mental Health Ward and had thereafter been returned to live with the mother.  

   [2] (This letter is not in evidence before me either but the father’s affidavit purports to quote from it without objection from counsel for the ICL).

5. The father’s affidavit (seemingly still quoting from the 15 October 2018 letter)  then sets out what are said to be some uncontroversial facts and then the following:

   I am quite concerned that as my (sic) be expected, our daughter [Z] has aligned herself strongly with her mothers (sic) emotional well-being and is too young to realise that she is excluding herself from a healthy relationship with her father.

   I think it ought to be very clear [B] has gone through a terribly traumatic period of time of separation from his entire family and has come to blame his father for his circumstances.

   …

   In those circumstances I would ask for a clear indication from the ICL that a change of direction is needed in the management of the children’s issues to expand therapy to include the entire family unit and for expanded contact between all the children with their father …” 

   (his emphasis included).

6. On 19 October 2018 the father demanded the withdrawal of the ICL.[3] It is a 10 page document purporting to identify risks of harm to the children arising from the following:

   a)A failure by the ICL to investigate the mother’s claims that the young boys had been knocked unconscious during ‘play fight’ while in her care;[4]

   b)Failure by the ICL to identify “refusal dynamics” and failure to facilitate contact visitations at places suggested by the father;

   c)Failure by the ICL to identify and prevent systems abuse relating to B’s involvement in criminal proceedings (the father submitted during the hearing before me on 27 November 2018 that the ICL should have engaged a criminal lawyer to provide advice and agitate for charges to be dropped against B);

   d)Failure by the ICL to enforce the alleged unilateral breach of the 9 April 2018 order;

   e)Failure by the ICL to investigate “evidence” of child abuse of B by the mother and failure to investigate allegations of family violence made against the father (the evidence is said to be found in the written communication sent to the father by B which is set out below);

   f)Failure by the ICL to investigate or evaluate risk of harm to the other children in placement of B in the mother’s care;

   g)Failure by the ICL to investigate allegations of child abuse in the mother’s care e.g. making the children watch inappropriate movies;

   h)Failure by the ICL to obtain further psychiatric assessment of the mother.[5]

   [3]See pages 6 – 15 annexure A to the affidavit of the ICL filed 22 November 2018.

   [4]The source of this allegation appears to be from something the mother said to the contact supervisor.

   [5] It is not in contention that a psychiatrist Dr Q has assessed the parties and a social worker Mr R has undertaken a family report.

7. The communication referred to by the father as having been sent to him by B (referred to above) is as follows[6]:

   You f****d my entire life. I want you to know right now that I have been in hospital on suicide watch, [Z] was living in hospital cause she was so close to suicide. I am basically only still here because I’m on some f*****g shitty pill that’s meant to make me happy. But it just f***s me up and makes me numb, I will never forgive you for f*****g me and my sisters childhoods and making mums life hell by trying to turn me against her with your F*****G BULLSHIT. YOU F*****G GAY C**T. Look at your life mate you made mum want to kill herself the whole time you were together, you f*****g over sexualise everything and exposed your children to violence and sexual themes from a young f*****g age cunt. Who the fuck hits their kids and tells them they are dumb and stupid all the time huh? F**k is wrong with you c**t. I’m never gonna forgive you for the f*****g scares on my arm and leg, or the way you carelessly tried to turn me into some womanising gay c**t, or how you f*****g turned me against all my fucking relatives, you called my sister a bitch constantly which isn’t AT f*****g ALL helpful especially considering she used to look up to you and has severe anxiety you dumb c***t. F**k you to hell you f*****g pig. I hope you f*****g get up tomorrow morning and break your f*****g back you gay c**t (rude finger emoji). Look in the f*****g mirror, and think about your f*****g life. All the f*****g thinks you managed to do to me and my family. ‘Looking after the family’ F**K OFF C**T. But in the end you’re still my f*****g dad and deep fcking deep down I still love you but I will never ever forgive you. I hope you are happy dad

   (errors included)

   [6] It is unclear on the evidence whether the father has censored the document or whether the account is as per the original.

8. The father informed the ICL that he intended to hold her firm “unequivocally accountable for the intractable damage you have occasioned my children through any negligence.”

9. In a further letter from the father to the ICL dated 1 November 2018 the father, alleges, among other things, that the ICL has engaged in unprofessional conduct.

ICL response to application

1. The ICL resists the father’s application for her dismissal. She describes what she says were “numerous, prolix emails” from the father and that she has responded to the father “only where I have felt it is necessary and relevant whilst keeping in mind that I am required to assist the court to make an order that is in the best interests of the children.” At page 19 of annexure A to her affidavit the ICL identifies 14 separate pieces of correspondence received from the father during the period 19 to 26 October 2018 including numerous communications on the same day. Her communication to the father on 26 October 2018 responds to the father’s numerous communications and says, among other things:

   Notwithstanding the various and numerous assertions, the ICL further notes –

   ·The ICL is appointed by the court;

   ·Hence the father’s “demands” are both intemperate and ill-informed;

   ·The assertions are denied;

   ·The main issue is the contact centre the mother and father intend to utilise to enable the father to spend time with the children.

   With respect to the contact centre the ICL has made her views known.

   …

   The parties should be aware that the decision is not the ICL’s.

   If the parties cannot agree then the court must decide.

Discussion

1. His Honour Justice Murphy in Knibbs & Knibbs[7] observed what he described as a trite proposition but nevertheless worthy of repetition in this case, namely, the ICL may make and indeed is encouraged to make recommendations but it is the judge who decides the case.[8]

   [7][2009] FamCA 840.

   [8]Knibbs & Knibbs [2009] FamCA 840, [54].

2. An ICL is charged with the responsibility of gathering evidence, including expert evidence that they consider to be relevant to discharging their responsibility to represent the best interests of a child. However, that does not require them to necessarily agree with nor comply with requests made by a party. While demonstrating actual bias is in my view not a requirement to the successful removal of an ICL[9] the Court should be cautious about removing an ICL[10] in circumstances where, such as here, there is a complex factual history between the parents with competing serious allegations. These competing allegations will no doubt be the subject of scrutiny at the final hearing in February 2019.

   [9]I respectfully adopt the comments of Murphy J in Knibbs, [40].

   [10]Knibbs (supra); Lloyd & Lloyd & Child Representative (2000) FLC 93-045.

3. The ICL has obtained expert reports and is actively preparing the matter for the imminent final hearing. The fact that the ICL has not responded to every piece of correspondence from the father is not a proper basis, on its own, for her removal. The ICL has been attempting to assist the parties to resolve disagreements about how the interim orders can be given effect e.g. suggesting alternative supervisors, but is not under an obligation to do so nor to organise family therapy or mediation. These are matters for professional judgment and given the competing allegations and the history of the matter to date it is understandable why the ICL has not requested the parties undergo either.  

4. While it may be understandable for the father to perceive actions taken or not taken by the ICL not to be in his children’s best interests, the evidence upon which he relies does not persuade me that the ICL has failed in her obligations and duties or that she has failed to act impartially.

5. The father also submits that the ICL should be removed because she will be a material witness in the proceedings. In support of that contention the father mentioned two matters in submissions. Firstly, that the father had issued a subpoena to the ICL and she had objected to same. [11] Secondly, he had made a complaint to the Legal Services Commission about her. I am unclear why either circumstance would make the ICL a material witness in the parenting proceedings and I reject the submission.

   [11] The subpoena was not in evidence nor was the objection.

application to restrain the mother’s lawyer from representing the mother

1. The father argues that the mother’s lawyer should be restrained from continuing to act for the mother in the proceedings because they are likely to be a material witness in the proceedings.

2. The same two matters just referred to were submitted by the father as founding a proper basis for the injunction.[12] I repeat that I am unclear why either circumstance would make the lawyer for the mother a material witness in the proceedings.

   [12] Neither the subpoena nor the objection were in evidence.

conclusion

1. The father applies for the removal of the ICL for failing to comply with her statutory obligations as set out in s 69LA of the Act and being biased against him. he also contends that she will be a material witness in the proceedings. The father has failed to establish a proper basis for the ICL’s removal and his application will be dismissed.

2. The father also applies for an injunction restraining the mother’s lawyer from continuing to act for her in the proceedings. Likewise the father has failed to establish a proper basis for the issue of such an injunction and his application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 December 2018.

Associate: 

Date: 7 December 2018