SANDEX & BONDIR (No.2) - [2017] FCCA 2142

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDEX & BONDIR (No.2)

[2017] FCCA 2142

Catchwords:
FAMILY LAW – Mother’s Application that the Independent Children’s Lawyer be dismissed – the Mother alleges collusion and collaboration between the Father, the Father’s legal representatives, the Family Report Writer and the Independent Children’s Lawyer – the Mother alleges inappropriate conduct by the Independent Children’s Lawyer.

HELD – Application dismissed – determination that the Independent Children’s Lawyer acted properly, professionally and appropriately discharged her obligations as Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, s.68L

Cases cited:

Dickens & Dickens [2016] FamCA 115

Knibbs & Knibbs [2009] FamCA 840

Applicant:

MS SANDEX

First Respondent:

MR BONDIR

File Number:

MLC 1139 of 2008

Judgment of:

Judge Bender

Hearing date:

4 August 2017

Date of Last Submission:

4 August 2017

Delivered at:

Melbourne

Delivered on:

7 September 2017

REPRESENTATION

Counsel for the Applicant:

Not Applicable

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondents:

Ms Macgregor

Solicitors for the Respondents:	Macgregor Barristers & Solicitors
Counsel for the Independent Children's Lawyer:	Ms Brennan
Solicitors for the Independent Children's Lawyer:	Ms Smith

ORDERS

The Mother’s Application in a Case filed 15 May 2017 seeking orders dismissing the Independent Children’s Lawyer Caroline Smith be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sandex & Bondir (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1139 of 2008

MS SANDIX

Applicant

And

MR BONDIR

First Respondent

REASONS FOR JUDGMENT

Introduction

This is the Mother’s Application in a Case filed 15 May 2017 seeking orders that the Independent Children’s Lawyer, Caroline Smith, be dismissed and all recommendations made by her be completely disregarded.
This application is opposed by Ms Smith and the Father.

Background

On 19 November 2015 the Mother filed an Initiating Application seeking orders that Judge Baker’s parenting orders of 15 March 2015 be discharged, that she have sole parental responsibility for the parties’ two children [X] born 2002 (“[X]”) and [Y] born 2004 (“[Y]”), that they live with her and spend time and communicate with the Father as determined by the Court.
On 20 July 2016 an order was made requesting Victoria Legal Aid appoint an Independent Children’s Lawyer. Victoria Legal Aid appointed Ms Smith, who is an Independent Children’s Lawyer in the employ of Victoria Legal Aid.
On 24 January 2017 after a 3 day hearing in September 2016, I handed down my judgment in relation to the Mother’s Initiating Application. In that judgment at paragraphs [1] to [27] I set out the Background to the proceedings. I will not repeat the Background in this judgment.
The orders of 24 January 2017 provide for all previous parenting orders to be discharged, for the Father to have sole parental responsibility for [X] and [Y], for [X] and [Y] to live with the Father, for [X] to spend time with the Mother in accordance with her wishes and for [Y] to spend time with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SANDEX & BONDIR (No.2)

Details

AGLC: Sandex and Bondir (No.2) [2017] FCCA 2142
Case: [2017] FCCA 2142
Decision Date: 7 September 2017

CaseChat Overview and Summary

In the matter of SANDEX & BONDIR (No.2), the Mother applied to the court seeking the dismissal of the Independent Children’s Lawyer (ICL), Caroline Smith. The Mother alleged collusion and collaboration between the Father, his legal representatives, the Family Report Writer, and the ICL, as well as inappropriate conduct by the ICL.

The central legal issue before Judge Bender was whether the ICL had acted improperly, unprofessionally, or failed to discharge her obligations appropriately, thereby warranting her dismissal from the proceedings. This involved assessing the Mother's specific allegations of collusion and inappropriate communication.

The court dismissed the Mother's application. Judge Bender found that the ICL had acted properly, professionally, and had appropriately discharged her obligations. The allegations of collusion, particularly the assertion that the ICL and the Father's solicitor were colluding due to both undertaking work for Legal Aid recipients, were found to be unfounded and outrageous. Furthermore, the court accepted the ICL's explanation regarding her communications with the Family Report Writer, finding them to be necessary, appropriate, and consistent with the role of an ICL. The evidence did not support the Mother's claims of inappropriate conduct or collusion.

Orders

Orders of the court

The Mother’s Application in a Case filed 15 May 2017 seeking orders dismissing the Independent Children’s Lawyer Caroline Smith be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I can confirm that Ms Smith did not instruct her Counsel from the bar table and that when she was present in court she sat in the last row where she was taking notes and intently listening to the evidence being given. At no time did I observe any looks passing between Ms Smith and any of the Father’s legal representatives. iv)The Father’s solicitors do a lot of legal aid work and as Ms Smith is also employed by Victoria Legal Aid this is further evidence of their collusion. In paragraph [21] of the Mother’s affidavit sworn 29 January 2017 she deposes as follows:“There is apparent collaboration and collusion between the father’s legal team, the fathers lawyers are known to predominantly work on behalf of Legal Aid and Ms Smith.” The Father’s solicitor is a very experienced private practitioner of many years standing. As part of her practice she represents people who qualify for a grant of Legal Aid. She does not work for, nor is employed by, Victoria Legal Aid. It was strongly submitted by Ms Smith’s Counsel that to allege, as the Mother does, there was collusion between the Father’s lawyer and the Independent Children’s Lawyer on the basis that one undertakes work for people who receive grants of Legal Aid and the other is employed by Victoria Legal Aid beggars belief and is not only unfounded, but is outrageous. In paragraph [24] of the Mother’s affidavit sworn 29 January 2017 she deposes that she believes there should have been no telephone communication between the Family Report Writer and Ms Smith as it is her understanding all communications should include all parties and she was never invited to be part of that telephone communication. The Mother further expresses the belief that all communication between the Family Report Writer and Ms Smith should have been in writing and all parties should have been copied into all communication. She makes complaint that she does not believe that either her lawyers or herself were copied into all communications between the Independent Children’s Lawyer and the Family Report Writer. In Ms Smith’s affidavit sworn 7 June 2017 at paragraph [12] and [13] she denies there was any unnecessary communication between herself and Ms L. She notes that as Independent Children’s Lawyer she is expected to communicate with the Family Report Writer. At paragraph [12] she sets out in detail the totality of her communication as follows:“12. …I contacted her once prior to the July interim hearing date to clarify a part of her report. I contacted her on or about 28 July to discuss the outcome of the interim hearing. I contacted Ms L in order to arrange to meet the children at her offices. I communicated with Ms L to put her on notice to attend for the final hearing to give evidence. I spoke briefly with Ms L on the day of meeting the children to ascertain whether there was any change in her report recommendations arising from meeting the children with me.” It was submitted by Ms Smith’s Counsel that all communications between Ms Smith and Ms L were appropriate, necessary and were not numerous. It was submitted the communication was that which usually passes between an Independent Children’s Lawyer and the Family Report Writer.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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