NEWPORT & NEWPORT
[2016] FamCA 1066
•12 December 2016
FAMILY COURT OF AUSTRALIA
| NEWPORT & NEWPORT | [2016] FamCA 1066 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application to appoint an adversarial expert – Whether the single expert has delegated to a therapist deciding when the father is to commence spending unsupervised time with the children – Where orders have been made on the single expert’s recommendation that the parties and children’s therapy be confidential or non-reportable – Whether the single expert has provided non-responsive answers to questions asked by the father – Whether the single expert is biased – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the Independent Children’s Lawyer – Whether the ICL has been responsible for the delay in the appointment of a single expert and the progress of the proceedings – Whether it was inappropriate for the ICL to convey the views of the children to the Court when the ICL has not interviewed the children in over eight months – Whether it was inappropriate for the ICL to pursue the recommendations of the single expert – Whether the ICL is biased – Application dismissed. |
| Evidence Act 1995 (Cth) s 79 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| APPLICANT: | Mr Newport |
| RESPONDENT: | Ms Newport |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | SYC | 2571 | of | 2015 |
| DATE DELIVERED: | 12 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 14 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings SC |
| SOLICITOR FOR THE RESPONDENT: | Pearson Emerson Meyer Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
Orders
The father’s Application in a Case filed 14 October 2016 is dismissed.
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 Newport & Newport 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 SYDNEY |
FILE NUMBER: SYC 2571 of 2015
| Mr Newport |
Applicant
And
| Ms Newport |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by the father to discharge the Independent Children’s Lawyer (“the ICL”) and to appoint Dr B as an adversarial expert to enquire into and report on matters pertaining to the welfare of the children, C and D, who were both born in 2005 and are currently aged 11 (“the children”).
The application has been made in the context of the parties being engaged in quite intense and protracted litigation concerning both parenting and property issues.
Background
The father and the mother are both 40 years of age. They were married in 1999 and separated on 4 April 2015.
The application is brought by the father in the context of the substantive proceedings being commenced by the mother on 24 April 2015 in which she seeks orders for sole parental responsibility of the children and for the children to spend only supervised time with the father. The father’s application was supported by an affidavit sworn and filed on 14 October 2016.
The children are currently spending time with the father in accordance with orders made by consent on 17 August 2015. Those orders are as follows:
1. That order 5 and 7 of the orders made by consent on 15 May 2015 are discharged.
2. That pending further order, and on a without admissions basis as to the necessity of such an order, the father spend time with the children [C] born on … 2005 and [D] born … 2005, as follows:
a. From 1pm to 5pm each Saturday,
b. At such other times as agreed between the parties,
c. That the time the father spends with the children be supervised by [E Group] or other supervisor agreed between the parties (“the supervisor”), and the supervisor shall;
i. Collect the children from the mother’s residence at the commencement of the father’s time with the children and return the children to the mother’s residence at the conclusion of the father’s time with the children
ii. The father is restrained from attending the changeovers referred to in order 2 c) i).
d. The father is solely responsible for the costs of the supervision in accordance with this order, including but not limited to the costs of changeovers and provision of written reports from the supervisor.
e. That within 7 days of each visit in accordance with this order, the father’s solicitor is to cause a supervisor’s report of the father’s time with the children to be forwarded to the mother’s solicitor and the Independent Children’s Lawyer by email.
f. That the parties shall ask [E Group] to allocate a female supervisor if available.
On 29 March 2016 consent orders were made appointing Dr F as the Single Expert in the parenting proceedings. Following the release of Dr F’s report dated 20 June 2016 (“the Expert Report”), orders were made by Senior Registrar Campbell on 31 August 2016. There is no dispute that those orders were informed by the report of Dr F and were as follows:
PENDING FURTHER ORDER IT IS ORDERED
Family therapy
1.That the parties shall do all acts and things to arrange for the parents and [C], born … 2005, and [D], born … 2005 (“the children”) to attend on a family therapist, [Dr G] at [H Group], or other such family therapist at [H Group] as agreed between the parties, for the purpose of confidential family therapy for the parents to obtain guidance and direction as to the children spending unsupervised time with the father and for both parents to obtaining guidance and direction as to effective parenting strategies and to effect this order:
1.1That within 14 days of the date of these orders, the father shall;
1.1.1Contact the family therapist to book to attend an appointment with the family therapist within the next 2 weeks or on the next available date,
1.1.2Attend on that appointment, for the purposes of obtaining a referral from the family therapist for a counsellor recommended by the family therapist for the father attend individually (“The counsellor”).
1.1.3Notify in writing to the mother’s solicitor and the Independent Children’s Lawyer that he attended his first appointment with the family therapist and provide the name of the counsellor he has been referred to by the family therapist.
1.2The father shall book and attend his first appointment with the counsellor and notify in writing to the mother’s solicitor and the Independent Children’s Lawyer that he has attended that first appointment and provide the date of his next scheduled appointment.
2.That within 7 days of the on notification by the father in writing of his compliance with order 1.2, that the mother is to:
2.1Contact the family therapist to book to attend an appointment with the family therapist within the next 2 weeks or on the next available date,
2.2Attend on that appointment,
2.3Notify in writing to the father’s solicitor and the Independent Children’s Lawyer that she has attended her first appointment with the family therapist and provide the date of her next scheduled appointment.
3.That on attending the family therapy with the family therapist in accordance with order 1 and 2, the mother and the father shall ensure that:
3.1They and the children attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments any recommendation that either parent participate in any parenting or other course or program recommended by the family therapist.
3.2That the mother or her nominee be responsible for transporting the children to and from appointments with the family therapist.
3.3That both parties do all acts and things to provide the family therapist with an irrevocable authority for the family therapist to advise the Independent Children’s Lawyer in writing, on the request of the Independent Children’s lawyer or on the family therapists own determination, the date appointments have been scheduled with the family therapist for the children and the parties to attend, and whether the parties and children he attended those appointments.
4.That the parties are restrained from subpoenaing the records of the family therapist or requiring the family therapist for cross examination at any hearing of the matter.
5.That the mother be responsible for:
5.1Attending on her General Practitioner with the children to obtain a Mental health plan for herself and the children
5.2Any and all Costs associated with any individual appointments she is required to attend requested by the family therapist.
6.That the father be responsible for:
6.1Attending on his General Practitioner to obtain a Mental health plan for himself.
6.2Any and all Costs associated with any individual appointments he is required to attend requested by the family therapist
7.The parties are to share equally the costs of the children’s appointments with the family therapist.
8.That the family therapist be at liberty to communicate the father’s counsellor and the mother’s counsellor for the purposes off facilitating the family therapy.
9.That the Independent Children’s Lawyer have leave of the court to provide the family therapist with the Single Expert report prepared by [Dr F] and released on 20 June 2016 and a copy of these orders.
Father’s counselling
10.That the father attend on a counsellor as recommended by the family therapist in accordance with order 1.1, and comply with all requests, directions and requirements which arise in relation to her counselling, including but not limited to the frequency of appointments and any recommendation that the father participate in any parenting or other course or program recommended by the counsellor.
11.That the father’s counsellor be at liberty to communicate with the family therapist for the purposes of facilitating the father’s counselling.
12.That the father be responsible for the costs of his counselling.
13.That the parties are restrained from subpoenaing the records of the father’s counsellor or requiring the father’s counsellor for cross examination at any hearing of the matter.
14.That the Independent Children’s Lawyer have leave of the court to provide the father’s counsellor with the Single Expert report prepared by [Dr F] and released on 20 June 2016 and a copy of these orders.
15.That the father do all acts and things to provide his counsellor with an irrevocable authority for the fathers counsellor to advise the Independent Children’s Lawyer in writing, on the request of the Independent Children’s lawyer or on the counsellors own determination, the date appointments have been scheduled with the counsellor for the father to attend, and whether the father has attended those appointments.
Mother’s Counselling
16.That the mother continue to attend on her counsellor, [Ms I], and comply with all requests, directions and requirements which arise in relation to her counselling, including but not limited to the frequency of appointments and any recommendation that the mother participate in any parenting or other course or program recommended by her counsellor.
17.That the mother’s counsellor be at liberty to communicate with family therapist for the purposes of facilitating the mother’s counselling.
18.That the mother be responsible for the costs of her counselling.
19.That the Independent Children’s Lawyer have leave of the court to provide the mother’s counsellor with the Single Expert report prepared by [Dr F] and released on 20 June 2016 and a copy of these orders.
Updating report of [Dr F]
20.That prior to the final hearing of the matter, and Pursuant to Division 15.5.5 of the Family Court Rules 2004, that the parties will request forensic child Psychiatrist, [Dr F] (“[Dr F]”) to provide an updating single Expert report NOTING that the parties shall confer on further orders and a letter of instruction for [Dr F].
Additional orders
21.The mother and the father do all acts and things necessary to prevent any other person or persons from making any critical, disparaging or derogatory remarks about the other parent or any member of the other parent's family or household to the children or in the presence or hearing of the children, such order to include verbal, written or electronic means including email, text message and private and public social media.
22.That the father be restrained from bringing or causing the children to come into contact with Mr J when the children are spending time with the father.
23.The application filed by the father on 13 May 2016 otherwise be dismissed without prejudice to the father’s right to commence new proceedings upon completion of the counselling and therapy provided by these orders.
Submissions: Appointment of an Adversarial Expert
Submissions on behalf of the father
Senior counsel for the father contended that in the Expert Report, under the heading “Desirability and effect of parents’ proposal for spending time with the children”, Dr F expressed the view that the parties should entrust to an unidentified therapist the obligation of determining when unsupervised time between the children and the father would begin.
It was also contended that, prior to preparing the Expert Report, Dr F failed to advise the parties and the Court that he would be absent from the jurisdiction between 27 November 2016 and mid-March 2017.
It was further submitted that it is of relevance that, on 26 July 2016, the ICL advised senior counsel for the father and his instructing solicitor that Dr F had informed her that the counselling he had recommended for the parties and the children should be reportable. This, however, was disputed by the ICL.
It was noted that, on 31 August 2016, the Senior Registrar was advised by the ICL that Dr F’s Expert Report was intended as an interim report. It was asserted that this fact had not previously been disclosed to the parties.
It was contended that the fact that the counselling to be provided to the parties and the children is not to be reportable makes it impossible to determine the basis upon which a decision is to be made by the therapist as to whether the father spending time with the children should or should not be supervised. In that context, it was noted that the father has spent in excess of approximately $30 000 on professional supervision services.
It was also submitted that it is relevant that the parties have expended in excess of $35 000 to obtain the Expert Report against a background where:
a)Dr F does not reach any conclusion as to when supervision should conclude but, instead, has suggested that it be determined through the process of counselling for the parties and the children. As noted, the father complains that, as the counselling will be confidential in accordance with the recommendations of Dr F, it is not possible for the father to consider the reasons as to why supervision continues.
b)It was further submitted that Dr F provided non-responsive answers to questions asked of him by the legal representatives for the father. This “again leads the [father] to believe that Dr F is not bringing an open or unbiased view to the proceedings and to his task as the Court’s expert”.
Oral submissions
By way of summary, it was submitted by senior counsel for the father during oral submissions that:
a)Whilst the time the children have been spending with the father since May 2015 has been supervised, there have been in excess of 80 supervisor reports prepared and those reports have been positive. There have certainly been no reports of the children being in danger.
b)If Dr F were to prepare another report, it will be of no utility to the Court because he will be unable to confer with the therapist regarding the counselling provided to the children. In those circumstances, it was argued Dr F will be unable to ascertain why the therapist does or does not recommend that supervision of the father’s time with the children continue.
c)The Expert Report of Dr F was also criticised insofar as Dr F did not interview the extended paternal family.
d)It is the father’s assessment that the children’s attitude to him has changed significantly. Specifically, the father alleges that the children are becoming more belligerent and alienated from him. It was submitted that as a result of Dr F’s recommendations that the children’s counselling be non-reportable, the father is unable to obtain any information as to why that is occurring.
e)As a result, the father proposes that if the father’s time with the children is to be supervised, the time should be suspended. He proposed to advise the children of this when he next confers with the therapist.
f)Dr F’s response to the supplementary questions sent to Dr F by the solicitors for the father were non-responsive and essentially amounted to a revelation that he had a “gut feeling” that the parents and extended paternal family may involve the children in the parents’ dispute.
g)The father’s attitude is influenced by the history of his marriage to the mother. It was submitted that the mother has unilaterally changed supervisors and she denied the father time with the children during July and August 2015. Further, it took the mother nine months to agree to the appointment of Dr F.
h)The fact that Dr F’s recommendation has resulted in orders being made for the parties’ and the children’s therapy to be non-reportable has rendered the Expert Report nugatory in terms of providing assistance to the Court.
i)The father was also highly critical of Dr F for permitting the children to have their iPads with them whilst they were observed by Dr F with the father.
j)The objectivity of Dr B, who the father seeks to be appointed as an adversarial expert, has not been compromised by the fact that the solicitor for the father has engaged in correspondence with him.
While the totality of a “critique” prepared by Dr B on the instructions of the father was not provided to the Court, the father extracted those parts of the critique which he submits are critical of the Expert Report. Those extracts were set out in the father’s affidavit as follows:
38. I have read the critique of [Dr B]. [Dr B] makes the following observations with respect to [Dr F's] Report:
38.1. At paragraph 22, in relation to the children's attendance at a [C]hild Inclusive Conference on 16 July 2015, [Dr B] states:
"The key observation regarding this interview is that there are indicators that the children have been prepared for the interview by their mother. Their strong identification with her, as their primary attachment figure, is also evident. This is not addressed by [Dr F]."
38.2. At paragraph 25, in relation to [Dr F's] decision to not interview certain members of the extended family, [Dr B] states;
"[Dr F] notes that he made the decision to not interview other members of the extended family, including the Grandparents and relied upon the Affidavit material for all additional sources of information. In making this acknowledgement in his 3rd paragraph on page 3 of his report he acknowledges, that the Grandparents have played a significant part in the children's life both prior to and subsequent to the separation. Thus, his decision to not interview them for the purposes for this assessment was viewed as problematic, particularly given the competing narratives relation to black magic and contact."
38.3. At paragraph 30, in relation to the Local Court proceedings brought against me, [Dr B] states:
"[Ms Newport] reported that the charges of assault against [Mr Newport] had failed as she did not wish for [C] to have to give evidence. This was inconstant with my reading of the transcript. [Dr F] makes no comment with regard to this"
38.4. At paragraph 32, in relation to the time the children spend with me as understood by [the mother], [Dr B] states;
"[The mother] stated that the children had been consistently reluctant to attend visits and it was their preference not to go. This was inconsistent with their intermittent reluctance as detailed in the contact records. Her assertion that the children were bored during the visits was also inconsistent with these records."
38.5. At paragraph 46, [Dr B] states;
"Interestingly, [Dr F] fails to identify that, given as both children were aged 11, significant weight should be given to their wishes. This would be my view. I did however, form the opinion, based on the material perused, that both children had been influenced in their view of their father by their mother's expressed opinion. Although she had been actively encouraging on occasion, they had also been exposed to her mistrust and hostility towards their father."
38.6. At paragraph 48, [Dr B] states;
"[Dr F] had formed the view that [Ms Newport] has been "fairly supportive" of the children's relationship with their father". Superficially, this may be the case but it is probable that her expression of her experience to them conveys quite a different view; further her insistence on supervision and then the need for professional supervision."
38.7. At paragraph 50, [Dr B] states;
"I did form the view that the children's view of the father and paternal external family had been influenced by their mother and her stated experience. Further, [Dr F] fails to identify the impact of [Ms Newport's] acknowledged anxiety, stress and emotional vulnerability and the impact of this on her parenting capacity. Nor does [Dr F] address the alleged controlling nature of [Mr Newport]. The fact that this was not particularly evident during the extensive observed interactions between the children and the father is also not mentioned."
38.8. At paragraph 51, [Dr B] states;
"[Dr F] clearly identifies Ms Newport' tendency to speak without thinking in the context of melodramatic personality traits, more commonly referred to Histrionic personality traits. I agree that this was evident in her use of superlatives in her narrative and inconsistency when making statements in the Local Court. It is thus surprising that he [Dr F] fails to identify this as impacting upon her parenting capacity and the impact that this would have on the children and their views."
38.9. At paragraph 52, [Dr B] states;
"[Dr F's] conclusion that [Mr Newport] was likely to be capable of being dominating, controlling and aggressive and exaggerate or fabricate aspects of [Ms Newport's] history of emotional stability, was consistent with [Ms Newport's] allegations. His conclusion that [Mr Newport] demonstrates "traits of mendacity, manipulative-ness, self-absorptions, volatility and lack of remorse", should be regarded as dependant of the findings of the court as to whether [Ms Newport's] allegations have substance."
Submissions on behalf of the mother
Senior counsel for the mother noted that the application by the father for the appointment of another expert witness is made pursuant to r 15.49(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”), which, as noted above, includes the provision for such an appointment to be made when there is “another special reason for adducing evidence from another expert witness”.[1]
[1] Emphasis added.
It was submitted that the test for determining whether there is a “special reason” is analogous to the criteria applied by the Full Court in In the marriage of Gyselman and Gyselman (1992) FLC 92-279 where the Court considered the term “special circumstances”. Specifically, it was submitted that the father has not established the existence of such special circumstances to justify the appointment of another expert witness pursuant to r 15.49.
In that respect it was submitted that the father has misconstrued the report of Dr F. Specifically, the view expressed by Dr F at paragraph 37 of his report was referred to wherein Dr F said:
I sense that there is a strong indignation within his family about the allegations which have been made about him, and that if unsupervised visits start not only will [Mr Newport] try very hard to “set the record straight” with the children, but key members of his family will try to do the same thing in the many opportunities which they will have. Were this to occur, in my view the almost immediate result would be the collapse of the visits because the children would not put up with this, as they have shown that they do not want to put up with much less coercive behaviour occurring the supervised visits. In my view this is an importance reason for [Mr Newport’s] participation in any family therapy such as at the [H Group], which should receive a copy of my report.
It was submitted that, in his affidavit, the father has selectively quoted from views expressed by Dr B in the written critique which he has prepared concerning the Expert Report. In particular, it was submitted that Dr B substantially supports the recommendation of Dr F that the parties and the children attend counselling.
It was further submitted that contrary to the contentions of the father, the orders made by Senior Registrar Campbell on 31 August 2016 do not result in the decision as to whether the children spend unsupervised time with the father being delegated to the therapist. In that respect reference was made to Order 23 which states that the orders are “without prejudice to the father’s right to commence new proceedings upon completion of the counselling and therapy provided by these orders”.
It was also noted that Dr F had been appointed as the single expert by consent, he is respected by the Court as an expert and arrangements have been put in place for him to interview the parties and the children in April 2017. It was also submitted that insofar as the father has concerns regarding the contents of the Expert Report and/or Dr F’s reasoning, Dr F can be cross examined in respect to those matters at final hearing.
Senior counsel for the mother disputed the father’s assertion that the supplementary answers provided by Dr F to the questions asked by the solicitors for the father were non-responsive. The response, it was submitted, effectively said that Dr F was concerned that the situation may “[spiral] out of control” and that the parties’ extended families need to be involved to prevent that occurring.
It was submitted that in considering whether to appoint an adversarial expert the Court should have regard to the fact that the children have been interviewed by a number of professionals since the commencement of the proceedings and there is no reason for the children to be required to talk to another expert, at least not at this point in time.
It was submitted that the Court should not draw any inferences from the fact that Dr F did not speak to the children’s grandparents. It was submitted that it was appropriate for Dr F to endeavour to exclude the grandparents out of the parties’ dispute as it would be less likely to impact upon the children’s relationship with them.
It was submitted that the children have been living in an atmosphere where the parties are engaged in intense litigation and they are entitled to therapeutic space without the shadow of litigation intruding into the therapy that they receive. It was submitted that the fact that the father does not have faith in Dr F is not a “special reason” for the purpose of r 15.49. More generally, it was submitted that the father’s complaints concerning the report of Dr F are unreasonable.
Finally, it was submitted that, insofar as there is an order in respect to the children’s therapy being non-reportable, Dr B would be in the same position as Dr F if the Court considers that such confidentiality should remain.
Submissions of the ICL
The ICL submitted that the fact that the father has commissioned Dr B to provide a critique of Dr F’s report would, for that reason alone, render Dr B as a partisan witness on the behalf of the father and not a suitable person to be appointed as a single expert.
It was submitted that the Court would not be satisfied that the critique prepared by Dr B discloses any basis for the appointment of another expert witness as required by r 15.49. It was submitted that there was no basis for the assertion that Dr F is biased and, in any event, that issue would best be determined through the process of cross examination at final hearing.
The ICL also was concerned regarding the number of interviews that the children have attended in respect to the proceedings and, in that context, referred to concerns about “systems abuse” impacting upon children.
Finally, it was submitted that in circumstances where Dr B is an inappropriate appointment, the Court would be required to give consideration to appointing another expert and that has the potential to cause delay in these proceedings. That delay, it was submitted, would be contrary to the best interests of the children in circumstances where they have already been embroiled in extensive litigation.
Discussion: Appointment of Adversarial Expert
The background to the Rules, which provide for the appointment of single experts, was referred to in the Explanatory Statement to Statutory Rules 2003 No 375.[2] There it was noted:
[2] Family Law Rules 2004, Explanatory Statement Statutory Rules 2003 No. 375.
One of the strategies employed in these new rules to overcome the identified problems of partisanship, lack of clarity of evidence and excessive cost is to encourage parties to consider at an early stage whether expert evidence is necessary and if so whether that evidence can be given by a single expert witness.
…
Experience in the UK is that since the introduction of similar rules in the Uniform Civil Procedure Rules 1999, parties, in most cases, instruct a single expert witness and that:
* single experts are more impartial;
* single experts see their duty as being to the Court;
* the process saves time and money;
* single experts assist in levelling the playing field between parties with unequal resources;
* single experts increase the prospect of settlement.
Rule 15.44 provides for the single expert witness to be appointed by agreement between the parties. Rule 15.59 sets out the expert’s duties to the Court which relevantly include, under sub-rule (3), the duty to:
(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability;
….
(d)consider all material facts, including those that may detract from the expert witness's opinion;
(e)tell the court:
(i)if a particular question or issue falls outside the expert witness's expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness:
(A) is based on incomplete research or inaccurate or incomplete information; or
(B) is incomplete or may be inaccurate, for any reason; and
(f)produce a written report that complies with rules 15.62 and15.63.
Sub-rule 15.62(2) relevantly requires the expert to certify by an affidavit that:
I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.
I believe that the facts within my knowledge that have been stated in this report are true.
The opinions I have expressed in this report are independent and impartial.
I have read and understand Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my best endeavours to comply with them.
I have complied with the requirements of the following professional codes of conduct or protocol, being [state the name of the code or protocol].
I understand my duty to the court and I have complied with it and will continue to do so.
Rule 15.63 sets out important obligations of the expert in preparing their report. These obligations are expressed in mandatory terms as follows:
Contents of expert’s report
An expert’s report must:
(a)state the reasons for the expert witness's conclusions;
(b)include a statement about the methodology used in the production of the report; and
(c)include the following in support of the expert witness's conclusions:
(i)the expert witness's qualifications;
(ii)the literature or other material used in making the report;
(iii)the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv)a statement about the facts in the report that are within the expert witness's knowledge;
(v)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(vi)if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(vii)a summary of the conclusions reached;
(viii)if necessary, a disclosure that:
(A) a particular question or issue falls outside the expert witness's expertise;
(B) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(C) the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
In the event of a party taking issue with a single expert’s report, the Rules enable the parties to seek clarification by asking questions of that expert (per r 15.65). That rule has been utilised by both the father and the ICL in this matter.
Further, r 15.64B enables the parties to agree to convene a conference with the expert for the purpose of clarifying aspects of a report and, in the absence of agreement, apply to the Court for an order to that effect pursuant to r 15.64B(7). No party has made such an application in these proceedings.
The third opportunity for a party to take issue with a single expert’s report is that which has been utilised by the father in these proceedings, namely, to apply pursuant to r 15.49 for the appointment of another expert witness. In that context r 15.49 relevantly provides:
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
(Emphasis added)
The requirement for a party to establish a “special reason” for adducing evidence form another expert needs to be considered in the context of the purpose and intent of the Rules providing for the appointment of expert witnesses to which I have referred.
In In the marriage of Gyselman and Gyselman (supra), the Full Court considered the phrase “in the special circumstances of the case” as referred to in s 117(2) of the Child Support (Assessment) Act 1989 (Cth). The Full Court said, in that respect, that “special circumstances” were “facts peculiar to the particular case which set it out from other cases”.[3]
[3] at 79,065 referring to Kay J in In the marriage of Savery and Savery (1990) FLC 92-131 at 77,897.
As will be discussed, the father has not established a special reason for the appointment of another expert witness.
I do not agree with the submission by senior counsel for the father that, in acting upon the recommendations of Dr F, the Court has delegated to the children’s therapist the decision as to whether the children spend unsupervised time with the father. In the Expert Report, Dr F is actually supportive of the father spending unsupervised time with the children and the controversy relates rather to his recommendations as to how that is to be achieved.
In that respect, Dr F believes that the parties and the children attending counselling is a means of facilitating the children having unsupervised time with the children without being embroiled in the broader dynamics affecting the family in the context of his sensing that the father and other family members feel strong indignation about the allegations of family violence which have been made about the father. Specifically, Dr F wants to avoid a situation where the father, or other family members, might use the children as an audience to “set the record straight”.
The fact that Dr F has recommended that the counselling provided to the children and the parties remain confidential or non-reportable is, in my view, unremarkable. I agree with respect to the submission of senior counsel for the mother that, in the context of the intense litigation between the parties, the children are entitled to some therapeutic space where they can freely and openly discuss issues of concern to them and, in turn, receive appropriate therapy.
Despite the criticisms of the Expert Report by Dr F as contained in the extracts of the critique that has been prepared by Dr B, a submission has not been made that the opinions expressed by Dr F in his report are inconsistent with s 79 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provides as follows:
Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
In discussing the operation of s 79 of the Evidence Act, the Full Court said in McGregor & McGregor (2012) FLC 93-507 at 86,475:
80. The following mandatory requirements must be established before evidence of the opinion may be admitted under this provision:
a) The person has specialised knowledge.
b) The specialised knowledge is based upon the person’s training, study or experience.
c) The opinion is “wholly or substantially” based on the person’s specialised knowledge.
81. Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R (1999) 197 CLR 414, 427.
82. In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey (2005) FLC 93-230).
Further, in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549, it was confirmed that it is unnecessary for the expert to precisely join all the dots in arriving at their conclusions. It is sufficient for admissibility:
…that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. [4]
[4] at 554[16].
The principles considered in these cases are substantially reflected in r 15.63 of the Rules which provides:
15.63 Contents of expert's report
An expert's report must:
(a) state the reasons for the expert witness's conclusions;
(b) include a statement about the methodology used in the production of the report; and
(c) include the following in support of the expert witness's conclusions:
(i) the expert witness's qualifications;
(ii) the literature or other material used in making the report;
(iii) the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv) a statement about the facts in the report that are within the expert witness's knowledge;
(v) details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person's qualifications and experience;
(vi) if there is a range of opinion on the matters dealt with in the report--a summary of the range of opinion and the basis for the expert witness's opinion;
(vii) a summary of the conclusions reached;
(viii) if necessary, a disclosure that:
(A) a particular question or issue falls outside the expert witness's expertise;
(B) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(C) the expert witness's opinion is not a concluded opinion because further research or data is required or because of any other reason.
Insofar as there have been criticisms of the Expert Report of Dr F’s, those criticisms, if established at final hearing as being valid, can be taken into account in giving weight to Dr F’s views. In that respect r 15.64(c) specifically provides that if an expert witness does not comply with the Rules (including r 15.63), the Court may:
allow the report to be relied upon on but take the non-compliance into account in considering the weight to be given to the expert witnesses’ evidence.
Is there a “special reason” for appointing another expert?
As noted, by way of summary, the criticisms of the Expert Report of Dr F are that:
a)Dr F failed to interview the paternal grandparents;
b)Dr F permitted the children to take iPads into the session he had with them and the father;
c)In recommending that the therapy provided to the parties and the children be non-reportable, Dr F has been the engineer of a situation whereby the Court will be unable to ascertain why the children’s therapist does or does not recommend the children spending unsupervised time with the father; and
d)The Expert Report is deficient for those reasons extracted from the critique prepared by Dr B.
Even if established, these criticisms do not in my view constitute a “special reason” for adducing evidence from another expert witness.
Bias
Finally, it was contended on behalf of the father that Dr F is perceived by the father as being biased. For the purpose of considering that submission, I will assume that the same considerations that apply in respect to apprehended bias of a judicial officer apply to a court appointed single expert. In identifying bias, as stated by the High Court in Michael Wilson & Partners Ltd v Nicholls and Ors (2011) 244 CLR 427 at 437[31]-[33]:
[T]he test to be applied in Australia… is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
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”.
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.
As noted by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng :[5]
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. … Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
(Emphasis added)
[5] Ibid at 531 [71].
It is the case that Dr F has expressed a tentative opinion that is more supportive of the mother’s contentions regarding her being the subject of an assault perpetrated by the father. The expression of that tentative opinion does not justify an apprehension, on the part of a reasonable observer, that Dr F is not open to persuasion to a contrary view if additional information is presented to him. This will occur in the form of the parties’ updated consolidated trial affidavits and also during the course of the final hearing itself. Moreover, Dr F notes that, ultimately, it is for the Court to make findings in that respect.
In Ebner,[6] the High Court stated that:
The bare assertion that a [decision-maker] 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.
[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345[8].
Further in Minister for Immigration and Multicultural Affairs v Jia Legeng,[7] Hayne J set out a three-step process that is required to establish bias as follows:
Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
[7] (2001) 208 CLR 507 at 564 [185].
Applying the three part test proposed by Hayne J f, I have noted, in the context of the first part of the test, that Dr F has expressed a tentative opinion that favours the contention of the mother that she has been the victim of family violence.
However, in terms of the second part of the test, Dr F has not applied that preliminary opinion “to the matter in issue”. Dr F has in fact recommended that the children spend unsupervised time with the father despite forming his preliminary opinion.
Finally, in terms of the third part of the test, it cannot reasonably be contended at this stage of the proceedings, that Dr F will not give the matter fresh consideration either when the parties are re-interviewed by him for an updated report in 2017 or when additional information is presented to him in light of the evidence presented by the parties at final hearing.
For these reasons, the father has failed to satisfy me that Dr F is biased or that a reasonable observer might apprehend that he is biased
Therefore, for all the reasons above, I will dismiss the father’s application for Dr B to be appointed as an adversarial expert in the parenting proceedings.
Submissions: Application to Discharge the ICL
The father submitted that the ICL should be discharged for the following reasons:
a)The ICL has taken no steps to interview the parties’ extended families, or to explore that occurring with Dr F.
b)The ICL was responsible for the delay of some nine months in the appointment of a single expert.
c)On 31 August 2016 the ICL purported to advise the Court of the views of the children in circumstances where the ICL had not interviewed the children since December 2015.
d)The ICL has been responsible for advocating the situation where the decision as to whether the children spend unsupervised time with the father is delegated to the children’s therapist in circumstances where it is not possible to ascertain, from that therapist, their reasons for recommending a particular position because their interactions with the children are non-reportable.
e)The ICL has failed to have regard to the 80 contact reports that have been prepared in respect to the children spending time with the father and has failed to meet with the supervisor.
f)The ICL’s conduct in purporting to communicate the wishes of the children to the Court in August 2016, in circumstances where she had not interviewed the children since December 2015, amounted to unprofessional conduct “on behalf of her clients”.
g)In adopting a position that therapy should be non-reportable, the ICL has taken a position that favours the mother and which has resulted in a reasonable apprehension of bias against the father.
h)The ICL has failed to pursue Dr F in circumstances where it was submitted that Dr F’s response to questions asked by the ICL failed to address the issues raised by the ICL.
i)More generally, it was submitted that the ICL had failed to progress her “client’s case” resulting in a situation of significant delay in the matter proceeding to final hearing. This includes failing to act expeditiously and diligently in appointing an expert.
j)Most significantly, it was submitted that the ICL has expressed an opinion that supervision should continue despite Dr F expressing a contrary view. In that respect, it was submitted that the ICL has precluded herself from being of assistance to the Court because neither the ICL or Dr F or the Court will be in a position to find out the basis upon which the children’s therapist recommends that the children’s time with the father be supervised.
k)These matters have created a perception on the part of the father that the ICL is biased towards him and he does not have any faith in her.
Senior counsel for the mother deferred to counsel for the ICL to address the contentions of the father in respect to the application for the ICL to be discharged.
Counsel for the ICL submitted that Dr F has consistently maintained that the children’s therapy should remain non-reportable and, in that context, provided correspondence from Dr F dated 19 August 2016. The ICL disputes that she advised senior counsel for the father and/or the solicitors for the father that Dr F was of the view that counselling should not be confidential.
The ICL submitted that she was not responsible for the delay in the appointment of the single expert. The reasons for the delay included a number of factors relevant to the mother and the father, including the fact that the father wished to await the outcome of criminal proceedings in relation to the assault allegedly perpetrated by him against the mother.
It was submitted that the ICL has acted professionally and within the National Guidelines for the Independent Children’s Lawyer.
It was further submitted that the father’s submission to the effect that the children are the clients of the ICL is misguided. The ICL has an obligation to the Court to represent the best interests of the children, not the children themselves.
Discussion: Application to Discharge the ICL
Section 68L(2) of the Family Law Act 1975 (Cth) (“the Act”) provides:
(2) If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
The role and duties of the ICL have been succinctly summarised by the Victorian Law Reform Commission in their 2010 report entitled “Protection Applications in Children’s Court: Final Report”. At paragraph 4.244, drawing largely upon s 68LA of the Act, the report notes that:
If an ICL is appointed, he or she must:
·form an independent view of what is in the child’s best interests based on the evidence available
·act in relation to the proceedings in what he or she believes to be the child’s best interests
·make a submission to the court suggesting a particular course of action if satisfied that that particular course of action is in the child’s best interests
·act impartially in dealings with parties to the proceedings
·ensure that any views expressed by the child in relation to the proceedings are put fully before the court
·analyse any report or document relating to the child that is to be used in proceedings to identify matters significant to determining what is in the child’s best interests and ensure that those matters are brought to the court’s attention
·endeavour to minimise the trauma to the child associated with the proceedings
·facilitate an agreed resolution of matters at issue in the proceedings to the extent that doing so is in the child’s best interests
·collate expert evidence and ensure that all relevant is before the court
·test, by cross-examination, the evidence of the parties and their witnesses.
(Footnotes omitted)
Section 68LA(4) provides that the ICL “is not the child’s legal representative” and “is not obliged to act on the child’s instructions in relation to the proceedings”.
The purpose and intention of the current legislative provisions applying to ICLs is referred to in the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) which states:
855. Subsection 68L(2) states that a lawyer should represent a child’s ‘interests’ rather than represent the child. In its report the [Law] Council recommended that child representatives should act as independent advocates for the best interests of the child, rather than act on the instructions of the child. The Council considered that the feature of assisting the court while simultaneously allowing the child’s voice to be heard I best fulfilled in this way. The Government considered that this is appropriate given the legislative requirement of the court to make decisions that are in the bests interests of the child.
Further, paragraph 867 of the Revised Explanatory Memorandum states that:
In accordance with the recommendation of the [Law] Council, the intention of such a provision is to clarify that the independent children’s lawyer should act as an independent advocate for the best interests of the child, rather than act on the instructions of the child. The Government considers that this is appropriate, given the legislative requirement for a court to make a decision in the best interests of the child.
This position is consistent with the views expressed by the Full Court in In the marriage of Bennett and Bennett (1991) FLC 92-191 at 78,259 where the Full Court said:
The separate representative must of necessity, form a view as to the child’s welfare based on 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 a Royal Commission in the sense that his or her duty is 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…
Whilst we consider it appropriate for the separate representative at trial to inform the Court by proper means… we do not consider that the separate representative is bound to make submissions on the instructions of a child as to its wishes or otherwise. Nevertheless, the separate representative would be bound to inform the Court of such wishes…
The Revised Explanatory Memorandum also noted the importance of the ICL having flexibility in how the views of children are presented to the Court. In that respect paragraph 874 of the Revised Explanatory Memorandum states that:
It is appropriate that the independent children’s lawyer has flexibility to sensitively manage the views of children and presentation of evidence. In the circumstances of a particular case, it may be most appropriate for the independent children’s lawyer to work with court mediators and experts to get evidence about the best arrangements for the child before the court, rather than inform the court directly of the views of the child. In other cases, particularly those involving older children, it may be more appropriate for the child to present his or her views directly to the court.
In that context, it is noted that, at the time the matter was before Senior Registrar Campbell in August 2016, the ICL was in a position where she was able to refer to the children’s views as communicated to Dr F when he interviewed them for the purpose of the preparation of the Expert Report. That approach was one which was reasonably open to the ICL in the circumstances.
Section 68LA makes it clear that the ICL is, just that, independent. The ICL is independent from the Court, from the child, and, certainly, independent from the parties. Indeed, consistent with the views expressed by the Full Court in Bennett (supra), s 68LA(3) imposes a duty on an ICL to make a submission to the Court suggesting the adoption of a particular course of action if the ICL is satisfied that course of action is in the best interests of the child. It goes without saying that that particular course of action may result in a child spending less time, supervised time or even no time with a particular parent.
The fact that an ICL may recommend the adoption of the course of action does not challenge the ICL’s impartiality. This is entirely consistent with the view of the Full Court in P & P (1995) FLC 92-615 that the ICL should “act in an independent and unfettered way in the interests of the child”.
In fact, contrary to the assertion by senior counsel for the father that the ICL had adopted a course of action that would prevent Dr F from being of assistance to the Court because the therapy being provided to the children and to the parties was non-reportable, the ICL actually proposed to Senior Registrar Campbell at proposed Order 21 (Exhibit 3), the following:
That in preparing the updating single expert report referred to in the previous order, the parties authorise [Dr F] to speak with the family therapist and the father’s counsellor.
Again, that position was an entirely reasonable one to advance in the context of the ICL determining what was, in her view, in the best interests of the children.
In summary, the ICL is not the legal representative for the children but rather a representative who is obliged by virtue of s 68LA of the Act to represent the best interests of the children. On the evidence currently before the Court I am satisfied that the ICL has acted professionally and within the National Guidelines for the Independent Children’s Lawyer.
On the evidence before me, it is, with respect, unfair to suggest that the ICL has been responsible for the delay in appointing Dr F as the single expert. Clearly there were many issues at play that resulted in some delay in the appointment of Dr F, including the father’s involvement in criminal proceedings.
Without judging the merit of the position taken by the ICL in these proceedings, and specifically in the proceedings before Senior Registrar Campbell, it is my view that the proposals of the ICL were entirely consistent with the ICL’s role in proposing what she regarded as being in the best interests of the children.
The fact that the ICL purported to represent the views of the children in circumstances where she had not spoken to the children in the period between December 2015 and August 2016 does not justify the Court discharging the ICL. The ICL is entitled to refer the Court to the views of the children as expressed to Dr F rather than to her personally interviewing the children.
In that context, s 68LA(5)(d) of the Act relevantly provides that the ICL must “endeavour to minimise the traumato the child associated with the proceedings”. It is, therefore, entirely reasonable that the ICL would have formed the view that the children’s views could be communicated through the relatively recent report of Dr F rather than the ICL submitting the children to yet a further interview with herself.
Finally, the submission of the father that the ICL should be discharged on the basis of apprehended bias is without foundation. I have earlier referred to relevant authorities in respect to that concept. The concept of ostensible bias in respect to an ICL must be considered in the context of the role of the ICL as provided for in the Act and specifically s 68LA(3).
As stated by Holden CJ in Lloyd & Lloyd and Child Representative (2000) FLC 93-045 at 87,689, there are “a number of very good reasons” why the Court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints on one of the parties”. In that context his Honour said:
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 that 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.
Further, in that same context, in W & M and Anor [2006] FamCA 512 at [34], the Full Court summarising the view of Chisholm J in T & L (2000) 27 FamLR 40 said:
…[A]n 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 positon or, from that litigant’s point of view, contrary to the child’s best interest.
As I have discussed, without necessarily agreeing with the propositions advanced by counsel for the ICL, I am satisfied that the ICL has acted entirely reasonably in the steps she has taken to arrange for the appointment of Dr F as the single expert consistent with the consent orders entered into by the parties. The ICL has also acted entirely properly in the questions she has asked of Dr F. The failure on the part of the ICL to further pursue Dr F cannot sensibly be regarded as a lack of professionalism or demonstration of incompetence. Without necessarily agreeing with the proposal submitted by the ICL to Senior Registrar Campbell in August 2016, those proposals were reasonably advanced on the basis of Dr F’s recommendations.
Finally, the fact that the ICL recommended a particular course of action based on the Expert Report is certainly not an indication that she is biased or there can be a suggestion of reasonable apprehension of bias.
In summary, there is no evidence before the Court that satisfies me that the ICL has acted other than entirely appropriately and consistent with the views she has reasonably formed as to what is in the best interests of the children. Further, there is no indication that the ICL is biased or that a reasonable by-stander would apprehend that she is biased. Accordingly, I dismiss the father’s application to discharge the ICL.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 12 December 2016.
Associate:
Date: 12 December 2016
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