Newett and Newett & Anor (No 2)

[2020] FamCA 745

FAMILY COURT OF AUSTRALIA

NEWETT & NEWETT AND ANOR (NO. 2) [2020] FamCA 745

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother seeks the Independent Children’s Lawyer (“ICL”) be discharged – where the mother has concerns about the actions of the ICL in facilitating a psychiatric assessment of her – where the mother considers the ICL does not intend to call sufficient witnesses at the final hearing – where the mother alleges the ICL has not taken her allegations of family violence seriously – where the mother alleges the ICL has colluded with the psychiatrist and considers that the ICL will be required to give evidence at the final hearing regarding “his behaviour” – where the Court is not satisfied that a fair minded independent observer would take the view that the ICL is not acting independently and is biased against the mother – application dismissed and costs reserved to the final hearing

Family Law Act 1975, s.102NA
Federal Circuit Court Rules 2001, r.15.09

Newett & Newett and Anor [2020] FamCA 470

APPLICANT: Mr Newett

FIRST RESPONDENT: Ms Newett

SECOND RESPONDENT: Ms Adlam

INDEPENDENT CHILDREN’S LAWYER: Mr D Carter
Carter Farquar Lawyers

FILE NUMBER: BRC 2179 of 2018

DATE DELIVERED: 11 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr S Richardson
Damien Greer Lawyers

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Mr D Carter
Carter Farquar Lawyers

Orders

1. The mother’s application to discharge the Independent Children’s Lawyer is dismissed.

2. The costs of the Independent Children’s Lawyer and the father of this application are reserved to the final hearing.

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 Newett & Newett 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 2179 of 2018

Mr Newett

Applicant

And

Ms Newett

First Respondent

And

Ms Adlam

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The application by the currently unrepresented mother, Ms Newett, that the Independent Children’s Lawyer (“ICL”) be discharged and a new ICL be appointed by Legal Aid Queensland, arises in the context of a difficult parenting/property case that has been before the Federal Circuit Court of Australia and this Court since March 2018.

2. The less than satisfactory journey the litigation has taken is more fully set out in my Reasons for Judgment delivered 12 June 2020 (see Newett & Newett and Anor [2020] FamCA 470) at paragraphs [10] and [11] and I see no need to restate that history.

3. Despite Orders made on 8 June 2020 applying the provisions of s 102NA of the Family Law Act 1975, the mother remains unrepresented. She informed the Court that two firms of solicitors appointed since the Order have withdrawn from representing her. The mother, conscious of the impediments to her ability personally to cross-examine at the final hearing of all matters now (having been adjourned from 28 September 2020) listed for five days commencing 30 November 2020, informed the Court that Legal Aid is hoping to identify a barrister prepared to accept a direct brief from the mother, so that she has representation at the hearing.

4. An earlier application by the mother seeking that the current ICL be discharged was dismissed, for reasons given orally at the time, on 12 May 2020 (Order 14).

5. The mother submits that her current application arises from issues that have taken place more recently, as briefly set out in these Reasons.

6. The ICL and the father oppose the mother’s application. The mother, on 1 September 2020, filed written submissions and relied upon her Affidavit filed 18 August 2020. The ICL, on 2 September 2020, filed written submissions and specifically, on this application, relies upon his Affidavit filed 31 August 2020. The father’s solicitor, Mr Richardson made brief oral submissions, opposing the mother’s application.

7. Although the context for the mother’s application more broadly seems to be a view that “[t]he ICL and Court has a duty of care to protect the children from abuse at all times” and has failed to do so, best identified by the initial and understandably distressing interim decision to the mother, made by a Federal Circuit Court of Australia Judge on 6 March 2019 to change residence of the three girls and reduce the children’s time with the mother to supervised time, other issues have arisen since 12 May 2020 which need now to be considered.

8. For completeness, I raised with the mother (before hearing oral submissions), that if the mother is successful in her application to have Mr Carter removed as the ICL, that will mean a new ICL will have to be appointed and the “practical reality”, is that it may not be possible for any new ICL to be prepared and available for the hearing scheduled for 30 November 2020.

9. Ms Newett indicated that although she wishes the final hearing to proceed on 30 November 2020, if that is a consequence of the application being successful, then it is still in the children’s best interests that “their” lawyer be replaced.

What arose after 12 May 2020

1. For context, it is appropriate to record that the mother challenges the opinions as to her mental health that were expressed by consultant Psychiatrist Dr A in his report dated 16 October 2018 and attached to his Affidavit prepared by the ICL and filed on 30 October 2018.

2. Although the Court has sought to explain to the mother that a number of the opinions/statements of Dr A could be tested in cross-examination at the final hearing (Mr Carter as ICL indicating it is his intention to rely upon the evidence of Dr A at the hearing), the mother is not satisfied that the evidence of Dr A should be before the Court at all.

3. As I acknowledged in my earlier published Reasons (at [10(e)]), the Federal Circuit Court of Australia Judge who made orders to change residence on an interim basis relied upon “a combination of the assessment by Dr A, the evidence of the father and his witnesses” for so ordering. Dr A, inter alia, at page 33 of his Affidavit under the heading “Conclusions” in his report, opined that the “mother may well have developed a psychotic illness”. I, of course, have made no such finding and the capacity of both the mother and father to parent will need to be included in an assessment by the Court of whether Dr A’s opinions (expressed now almost two years ago) should be accepted or not.

4. During exchanges on 3 September 2020, some of the mother’s concerns were identified as to how Dr A was retained and how he was briefed. I also identified some uncertainty as to whether Dr A was formally engaged as a Court expert under r 15.09 of the Federal Circuit Court Rules 2001. In this regard the Order of Judge Jarrett made 12 July 2018 did not order that Dr A be appointed a Court expert, but by Order 2 the father was required to meet the costs of “the report to be prepared by Dr A in the first instance”. It is obvious, whether by consent (which the mother now challenges) or otherwise, that Dr A had by 12 July 2018 been engaged – the ICL says with the concurrence of the parents – to conduct a psychiatric examination. In this respect, notation 1 to the Orders of 12 July 2018 says:

   “The parties have organised to attend upon Dr A in early September for the purpose of procuring a Family Report.”

   and attend the parents did – the mother on 16 August 2018 and the father separately on 17 August 2018. The reference to a “Family Report” is clearly an error. Dr A says in his report, at its commencement:

   “I thank Mr Damien Carter, Independent Children’s Lawyer, for referring the parents of the above [children] for psychiatric assessment.”

5. I indicated to the mother that to the extent, at this late junction, that she raises with me the concerns about whether the evidence of Dr A can be relied upon; is reliable; was founded on incorrect facts or for any other reason should be disregarded, is a matter that in my view is best left to the final hearing.

6. However, the submissions of the mother make it clear that apart from the issues with the conduct of the ICL in facilitating the assessments undertaken by Dr A, she has other substantial concerns which I summarise as follows:

   a)The ICL does not propose to call “sufficient” witnesses to establish the family violence the mother says the father has perpetrated against her and the children. The mother’s submissions assert a number of witnesses she believes the ICL should call. Of course, the mother is entitled to call witnesses in her case as she wishes – although she may choose, when she gains legal representation, not to do so;

   b)Although the mother supported the ICL’s application for the father to obtain an independent neuropsychiatric report, for reasons delivered orally, the Court dismissed the ICL’s application. The father has produced evidence from his treating health professionals, who will be made available for cross-examination at the final hearing;

   c)The mother alleges that the ICL has avoided or not taken seriously her allegations of the “long history of [f]amily [v]iolence”. She makes a similar criticism against the “[f]ather’s lawyers, Police and the Courts”. The issue of family violence is a significant trial issue and that is where it will be dealt with by the Court, by testing relevant evidence;

   d)The mother raises numerous concerns about the report of Dr A. She further says the ICL “has a distinct conflict of interest” as he has admitted “to collusion with Dr A … and has admitted his private and professional alignment is with the psychiatrist; who fabricated the Report against the [m]other with the assistance of the ICL”. The issues that concern the mother about “collusion” stem not only it seems from the manner in which Dr A was appointed, but more particularly in respect of the mother’s civil action against Dr A in the Supreme Court of Queensland. I deal specifically with that action below;

   e)The mother asserts it will be necessary for Mr Carter (the ICL) to be called in this case to “explain his behaviour”, and as such it would be prudent he be removed as ICL. I disagree. I see no evidence being required by Mr Carter at all in this parenting case;

   f)The mother says she has made “enquiries with Legal Aid based on the vicarious liability issues Mr Carter is presenting to them as an organisation; and [has] requested they find a new family violence specialist ICL who can take a fresh view and present all relevant evidence to His Honour at trial”; and

   g)The mother has appealed, to the District Court, a Protection Order made against her (and in favour of the father) by a State Magistrate. The appeal was heard on 22 June 2020 and judgment is reserved – with the mother expressing concerns that “given the behaviour of opposing solicitors in this case, that there may have been some form of interference in the delivery and publication of outcomes”. Furthermore, in submissions the mother asserts the ICL’s behaviour (not specifically particularised) has caused two different solicitors nominated under the s 102NA scheme, to withdraw from acting for the mother. Mr Carter contends a “much more plausible reason is that such lawyers have rejected her instructions to do certain things and their relationship has failed rather than the ICL interfered”. As all the circumstances of the retainer by the mother of her earlier solicitors are primarily privileged, and there is no evidence from those solicitors, this Court is not able to take the matter further. It is noted that the father’s solicitors have, in the past, alleged the mother has made unfounded criticisms of them to professional regulatory bodies – but again this is not a matter for this Court.

Mother’s actions against Dr A

1. As mentioned previously, the mother has serious concerns about the evidence of Dr A. So much so that she chose, as an unrepresented litigant to commence proceedings against Dr A in the Supreme Court of Queensland. This civil action (for which no Statement of Claim or particulars have been provided to this Court) was defended by Dr A. It is apparent from the limited material provided that Dr A was successful in arguing that the mother’s action against him be “struck out”. It seems that Justice Brown on 1 June 2020 ordered the mother pay the costs of Dr A which have been estimated to be $30,750 (see “Exhibit B” to the mother’s Affidavit filed 18 August 2020).

2. It is clear from “Exhibit B”, that the solicitors for Dr A communicated with the ICL, and he with them. Mr Carter in his Affidavit filed 31 August 2020 at “DDC2” provides copies of various items of correspondence passing between the ICL and solicitors for Dr A from 11 May 2020.

3. The mother deposes at paragraphs 26 and 27 of her Affidavit filed 18 August 2020 that:

   “26.It has come to my attention that the Independent Children’s Lawyer, the Federal Circuit Court and the Family Court all conferenced with the Solicitors of Dr A on my private civil matter before the Supreme Court without advising me nor involving me in the conversation.

   27.The Courts and ICL all provided information in relation to the Family Court proceedings to Dr A and his lawyers which aided and abetted him in winning his Strike Out Action against me in [the] Supreme Court … This was a clear case of Collusion and Corruption; and there is no other definition for such …”

4. However when the ICL seemed to become first aware of the civil action taken by the mother when contacted by Dr A’s lawyers on 11 May 2020, Mr Carter was suitably cautious about giving them any information. His email at 12.06pm on 11 May 2020 makes that clear, and the ICL sought advice urgently as to whether:

   a)Dr A was available to give evidence tomorrow “as proposed by the mother”; and

   b)Dr A was still prepared to assist with interviews on 14 and 21 May 2020.

5. By way of background, on 16 April 2020, Senior Registrar Spink made an Order for Dr A to be appointed as a single expert to effectively prepare updating written psychiatrist assessments. The mother had filed a Review of the Registrar’s decision, which was listed before me on 12 May 2020 (amongst other applications).

6. The solicitors for Dr A informed the ICL that because of the civil action taken by the mother, their view was he should be relieved of his obligations under the Order of 16 April 2020.

7. As it transpired, when this Court became aware of the actions in the Supreme Court, and hearing the matter de novo, the order of the Senior Registrar was discharged.

8. Although the mother was contacted by the ICL, by email at 11.26am on 11 May 2020 seeking particulars of her civil claim, the mother’s response at 11.44am that day was:

   “The private proceedings taken against Dr A are not any of your business.”

Conclusion

1. I am not satisfied on the current evidence before the Court that:

   a)a fair minded independent observor would take the view that the ICL is not acting independently and is biased against the mother;

   b)Mr Carter, in providing the information to the solicitors for the expert Dr A acted improperly as the mother asserts;

   c)I am unable to assess the basis for Dr A’s success in his “strike out” application in the absence of reasons from the Honourable Justice Brown, but am not satisfied that the ICL or the Courts aided and abetted Dr A in his interlocutory application; and

   d)It is not the practice of this Court, constituted by this Judge, to direct an ICL as to how to run their case. Mr Carter was given an opportunity to consider voluntarily withdrawing from the matter. He chose not to do so, believing he is best placed with his long history in the matter to represent the children’s interests.

2. I will dismiss the mother’s application. The mother may well be of the view that the ICL has a duty to the children to win “their” case.  He does not.  He has a duty to act as the “honest broker”. I accept the mother as a first year law student, has spent considerable time and effort in preparing numerous affidavits, applications and submissions.

3. However, with a trial looming, her energies are best directed to helping the “directly briefed” barrister Legal Aid is seeking to retain for her under s 102NA to be properly briefed.

4. The costs of the mother’s unsuccessful application to discharge the ICL shall be reserved to the final hearing.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 11 September 2020.

Associate: 

Date:  11 September 2020