SANDBERG & FAWKES

[2020] FamCA 306

FAMILY COURT OF AUSTRALIA

SANDBERG & FAWKES [2020] FamCA 306

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother filed an application to discharge the independent children’s lawyer – Allegation of apprehended bias – Where the independent children’s lawyer engagement of a private practitioner to prepare a family report is unremarkable – Where the mother does not object to the family report writer or her expertise, only the unilateral appointment of the family report writer by the independent children’s lawyer – Where the independent children’s lawyer was attempting to ensure the allocation of early trial dates by appointing a family report writer – Where the independent children’s lawyer acted in the best interests of the children – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Sandberg

RESPONDENT: Mr Fawkes

INDEPENDENT CHILDREN’S LAWYER: Ms Fairon, Life Law Solutions

FILE NUMBER: BRC 13139 of 2019

DATE DELIVERED: 30 April 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 22 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Borger

SOLICITOR FOR THE APPLICANT: DJ Hinton Lawyers

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dodd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fairon, Life Law Solutions

Order made on 22 April 2020

1. The Application in a Case filed by Ms Sandberg on 24 January 2020 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 Sandberg & Fawkes 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 13139 of 2019

Ms Sandberg

Applicant

And

Mr Fawkes

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Sandberg is the mother of two young children who wants to relocate with them to New Zealand. The progress of the substantive proceedings has been delayed by her application to discharge the independent children’s lawyer (“ICL”). When the matter came before me on 22 April 2020, I dismissed her application and indicated I would provide my reasons at a later date. The reasons for that decision are set out below.

Brief background

1. Ms Sandberg (“the mother”) and Mr Fawkes (“the father”) are the parents of two young children. The father commenced parenting proceedings in the Federal Circuit Court on 30 October 2019, specifically to prevent the mother relocating with the children to New Zealand.

2. On 12 November 2019, the parties were able to reach interim agreement about a number of matters regarding their children and an ICL was appointed. The matter returned to court on 13 December 2019. An application by the ICL for a court family consultant to undertake a family report was declined by the Judge and the matter was transferred to this Court in accordance with the protocol between the Federal Circuit Court and the Family Court relating to international relocation matters.

3. Prior to the first mention of the matter in this Court on 11 February 2020, the ICL arranged for the parties to attend upon Ms B, a private practitioner, for the purposes of the preparation of a family report and arranged interviews for 10 February 2020. The mother declined to attend the interviews suggesting, among other things, that the appointments were premature and that the issue be raised with the Registrar on 11 February 2020.

4. Prior to the directions hearing before the Registrar on 11 February 2020, the mother filed an application on 24 January 2020 seeking the discharge of the ICL. On 11 February 2020, the Registrar listed the mother’s application in the Judicial Duty List and adjourned the directions hearing to 28 May 2020.

5. Before turning to consider the arguments in detail, I note that the father neither consented to nor opposed the mother’s application although in his submission the ICL has appropriately carried out her role thus far.

The applicant’s case

1. Comprehensive written submissions were prepared by counsel for the mother who also spoke to them during the hearing on 22 April 2020. It was argued that the ICL “failed to act with professional objectivity and made written representations giving rise to apprehended bias”. The evidence said to support this submission is as follows:

   a)By her letter dated 19 December 2019, the ICL unilaterally appointed Ms B as an expert to prepare a family report;

   b)In so doing, the ICL acted without legal authority;

   c)In response to the mother’s written request on 15 January 2020 to cancel the interviews scheduled for 10 February 2020 and discuss the issue of the appropriate timing for the family report at the mention on 11 February 2020, the ICL issued “a veil[ed] threat” to the mother by stating – “We trust we will not be in a position to have to report to Registrar Coutts that the mother refused to attend at a report reasonably requested by the Independent Children’s Lawyer…”;

   d)The ICL failed to engage with the legitimate questions raised by the mother about the timing and usefulness of a family report at that time, resorting to statements such as the engagement of Ms B was “at the prerogative” of the ICL and “require[ing] the mother, the father and the children to attend upon Ms B” as scheduled;

   e)The ICL then wrote a further letter to the parties on 16 January 2020 noting the mother’s refusal to attend upon Ms B “as directed” by the ICL and addressing the father directly in the letter stating - “Mr Fawkes please note that the Family Report interviews will be cancelled in circumstances where the mother has refused to attend”; and

   f)The ICL indicated her intention to continue with her unilateral appointment of Ms B as the family report writer by stating she would advise of the new dates on 11 February 2020.

2. The mother submitted that a “fair-minded lay person cannot be left with anything other than a clear understanding that the ICL has taken an unjustified negative view of the mother”.

3. Ultimately, it was submitted that the mother “has lost confidence in [the ICL] as a result of the communications outlined … to undertake the role of ICL impartially in all the circumstances”.

The independent children’s lawyer’s response

1. The ICL submits that in making the arrangements for the parties to attend upon Ms B, she “did exactly what she was obliged to do in the discharge of her duty as the Independent Children’s Lawyer in the proceedings”. Particular reference is made to Part 6.7 of the Guidelines for Independent Children’s Lawyers in that the ICL:

   a)Ascertained the nature of the report i.e. being a family report for use in the substantive proceedings;

   b)Identified the family report writer, Ms B and by implication satisfied herself that she was an independent person who has relevant specialised knowledge, based on her training, study and experience;

   c)Noted the persons who should participate in the process, being the parties and the children, and the times they should attend the interviews with Ms B; and

   d)Identified at least some of the additional material to be provided to Ms B.

2. Further, the ICL was entitled to tender a report or adduce evidence at a final hearing from Ms B without the Court’s permission. That evidence could be tested by cross-examination at trial, as could Ms B’s expertise or qualifications.

3. The ICL was motivated to ensure the matter could be finalised at a trial as soon as possible, in the best interests of the children.

4. The proper course for the mother was to address the issue of the family report at the directions hearing on 11 February 2020.

5. Nothing in the ICL’s correspondence would cause the Court to make a finding of apprehended bias. In informing the mother that her refusal to attend the family report interviews would be brought to the attention of the Registrar, the ICL was doing no more than stating an uncontroversial fact, already asserted by the mother. In any event, the Registrar was not a person who had power to determine the substantive issues.

6. Nothing in the evidence relied upon by the mother could support the contention that the ICL would not carry out her role impartially or that it had “affected any view she may have in relation to the substantive issue before the Court i.e. the Mother’s proposed relocation to New Zealand.”

7. Finally, the fact that the mother has “lost confidence” in the ICL is irrelevant. The ICL’s duty is “to act impartially and in a manner which is unfettered by considerations other than the best interests of the child[ren].”

Discussion

1. It is not in contention that the Court has the power to discharge an ICL in appropriate circumstances.[1] Nor are the proper roles and responsibilities of the ICL contentious.[2] Rather, the question for determination is whether the circumstances of this case warrant the ICL’s discharge on the basis that she exceeded her role or failed to comply with her duties and responsibilities and/or acted in such a way as to create a reasonable apprehension of bias.

   [1] Family Law Rules 2004 (Cth) r 8.02; for a helpful discussion of the relevant authorities see T, AA and L, C (2000) FLC 93-056 per Chisholm J.

   [2]Family Law Act 1975 (Cth) s 68L.

2. Before turning to consider the arguments, I observe that the current dispute could have been dealt with by the Registrar[3] when the matter was before her on 11 February 2020. It is apparent from the notation to the Order made by the Registrar on that date that she was prepared to hear and determine the issue, but referred the matter to a Judge at the apparent insistence of the mother.

   [3]Family Law Act 1975 (Cth) s 37A; Family Law Rules 2004 (Cth) rr.18.01(1), 18.06(2) item 9, 8.02.

3. It is also important to acknowledge the concession made by the mother during submissions on 22 April 2020, namely, that there is no objection to Ms B’s appointment as the family report writer per se and her expertise is accepted. If the mother had a genuine issue with Ms B or could point to any prejudice with the means by which Ms B was appointed I could better understand her position. The mother raises no issue of prejudice and, as already noted, does not cavil with Ms B as an appropriate expert.

4. The role and duties of an ICL are elucidated in the Guidelines for Independent Children’s Lawyer (2013) (“the Guidelines”). In particular, Part 6.7 of the Guidelines contemplate an ICL obtaining a report from an expert without an order being made by a court. In such circumstances the ICL, according to the Guidelines, should:

   ·liaise as appropriate with the other parties concerning the nature of the report, the identity of the report writer, the terms of reference, the persons who should participate in the assessment, and the material to be provided to the report writer;

   ·satisfy him/herself that the report writer has the appropriate qualifications and experience to conduct the assessment, prepare the report and give evidence for the particular case;

   ·facilitate the participation of the child and other relevant persons in the assessment as appropriate;

   ·ensure that the report writer is provided with the information and documentation necessary to complete the assessment, including any order concerning the parameters of the report;

   ·liaise with the report writer and facilitate the timely release of the report; and

   ·convene a conference of experts where appropriate and seek an agreed statement as to the outcomes of that conference.

5. Rule 15.51(2) of the Family Law Rules 2004 (Cth) permits an ICL to tender a report from one expert on an issue without the Court’s permission.

6. The ICL’s retention of Ms B was unremarkable in my view. I take judicial notice of the fact that we are fortunate in Queensland that ICLs appointed by Legal Aid Queensland routinely retain experts to prepare family reports, thus providing significant relief from the burden that would otherwise be placed on the resources of the Court.

7. While it might be observed that the communications from the ICL were perhaps infelicitous, by not indicating an intention to “liaise”, the reaction by or on behalf of the mother seems to be somewhat out of proportion and has had the unfortunate consequence of stalling the progress of the substantive proceedings in circumstances where it is common ground that this Court affords priority to matters involving international relocation. Inexplicably, rather than trial directions being made on 11 February 2020 and the matter referred to a Judge’s docket for listing of a trial date, this matter has now been significantly delayed by the mother, who is the one seeking to relocate with the children.

8. It seems the real issue in this matter is that umbrage has been taken by or on behalf of the mother at what is regarded as highhandedness by the ICL in the manner in which she purported to appoint Ms B and respond to the mother’s perceived reasonable requests.

9. The turn of events is regrettable.

10. I am not persuaded that the ICL has been deficient in carrying out her role. To the contrary, the ICL has focussed, quite properly, in my view, on the best interests of the children in attempting to ready this matter for trial as soon as possible.

11. Curiously, the mother did not respond to the ICL’s letter of 19 December 2019 until 14 January 2020 and while the matters raised by her were not unreasonable, I do not regard the response by the ICL as in any way raising any apprehension of bias. A fair minded observer, in my view, would recognise that the ICL was attempting to ensure the allocation of early trial dates by being ready for trial. In particular, I reject the submission that the ICL’s intention to report the mother’s refusal to attend the interview with Ms B to the Registrar was a threat. It was no more than stating the obvious.

12. I can only urge the parties to now focus on progressing to a final hearing at the earliest opportunity.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 30 April 2020.

Associate:

Date:  30.04.2020