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

1. 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

1. 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.

2. This application is opposed by Ms Smith and the Father.

Background

1. 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.

2. 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.

3. 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.

4. 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 the Mother once a month, on one weekend in the school term holidays and alternate weekends in the long summer vacation. They also provide for both [X] and [Y] to spend time with the Mother at Christmas, on Mother’s Day, on their and the Mother’s birthday and by telephone each Tuesday.

5. The orders of 24 January 2017 also provide as follows:

   (12)

   The Father ensure [X] and [Y] attend an appointment to meet with Ms L, at his expense, at least once

   
   

   every four months or as otherwise directed by Ms L

   
   

   for a period of twelve months from the date of these orders

   
   

   (to monitor how [X] and [Y] are and make any recommendations).

   (13)

   The appointment of the Independent Children’s Lawyer be extended for twelve months from the date of the final orders or seven days from the conclusion of the last appointment with

   
   

   Ms L pursuant to paragraph 12, whichever is the latter and the Independent Children’s Lawyer is requested to liaise with Ms L to receive her feedback on how [X] and [Y] are and Ms L’s recommendations.

   (14)The Independent Children’s Lawyer have liberty to apply on short notice.

6. The Mother appealed the orders of 24 January 2017. On 14 July 2017 the Full Court dismissed the Mother’s appeal.

7. The hearing of this Application in a Case was adjourned until a date after the hearing of the Mother’s appeal given the Independent Children’s Lawyer was a party to the appeal.

The Law

1. An Independent Children’s Lawyer is appointed pursuant to section 68L of the Family Law Act 1975 (Cth) (“the Act”). Section 68LA of the Act sets out the role of the Independent Children’s Lawyer as follows:

   “Role of independent children's lawyer

When section applies

(1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.

General nature of role of independent children's lawyer

(2) The independent children's lawyer must:

(a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and

(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.

(3) The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4) The independent children's lawyer:

(a) is not the child's legal representative; and

(b) is not obliged to act on the child's instructions in relation to the proceedings.

Specific duties of independent children's lawyer

(5) The independent children's lawyer must:

(a) act impartially in dealings with the parties to the proceedings; and

(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(c) if a report or other document that relates to the child is to be used in the proceedings:

(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court's attention; and

(d) endeavour to minimise the trauma to the child associated with the proceedings; and

(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Disclosure of information

(6) Subject to subsection (7), the independent children's lawyer:

(a) is not under an obligation to disclose to the court; and

(b) cannot be required to disclose to the court;

any information that the child communicates to the independent children's lawyer.

(7) The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.

(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.”

1. In 2013 the Chief Justices of the Family Court of Australia, the Family Court of Western Australia and the Chief Judge of the Federal Circuit Court of Australia issued guidelines for Independent Children’s Lawyers. The guidelines of relevance to the specific issues raised by the Mother are as follows:

   “(4) The role of the Independent Children’s Lawyer

   …

   The Independent Children’s Lawyer is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.

   The Independent Children’s Lawyer should seek to work together with any Family Consultant or other relevant expert involved in the case to promote the best interests of the child.

   The Independent Children’s Lawyer does not take instructions from the child but is required to ensure the Court is fully informed of the child’s views, in an admissible form where possible.

   …

   (5.1)   Information which should be explained to the child

   When the Independent Children’s Lawyer meets the child, s/he should explain to the extent that is appropriate for the child:

   the role of the Independent Children’s Lawyer including the limitations of the role;

   the court process (including any anticipated interlocutory stages); and

   the other agencies that may be involved and the reasons for their involvement.

   The Independent Children’s Lawyer is to ensure that the child is aware that information provided by the child to the ICL in some circumstances may have to be communicated to the court, the child's parents or other persons or agencies. A strategy should be developed in consultation with any Family Consultant involved in the case and with the child as to the manner in which this is done. The aim is to minimise the potential for any adverse reaction towards the child.

   …

   (5.3)   Children’s Views

   In preparing to make submissions on the evidence as to the weight to be placed on the views of the child, the ICL may consult with the single expert, Family Conusltant or other relevant expert in relation to:

   the content of the child’s views;

   the contexts in which those views both arise and are expressed;

   the willingness of the child to express views; and

   any relevant factors associated with the child’s capacity to communicate.

   …

   (6.3)   Consultation between the ICL and Family Consultant

   …

   The ICL should liaise with any Family Consultant or other expert appointed to provide a report in the case.

   …

   (6.4) Relationship with the parties and their legal representatives

   …

   Where parties are legally represented, communication between the ICL and the parties should normally be through the legal representatives.

   …

   If one or more parties are unrepresented, the ICL is to communicate directly with the party and should advise the other parties of the fact of any meeting with an unrepresented party.

   …

   Once the ICL has formed a preliminary view as to the outcomes which will best promote the child's best interests, the ICL will consult with the child and take into consideration any expressed views of the child, as may be appropriate in all the circumstances. The ICL will then communicate his/her views and details of proposed orders to the parties where possible.

   (6.9)   Final hearing (the trial)

   …

   Where the ICL has formed a preliminary view as to the outcomes which will best promote the child's best interests, it may be appropriate to inform the court at the commencement of the first day of hearing of those views and where appropriate, provide details of draft orders.

   …

   The ICL is to make submissions evaluating the evidence and the proposals of each party and in doing so it is expected that the ICL will consider any practical problems associated with, and possible solutions for, such proposals. In appropriate cases the ICL will also make submissions as to the proposed terms of orders.

   …

   (7)   Family violence and abuse

   Like all practitioners, the ICL is expected to be familiar with the relevant provisions of the Family Law Act 1975, the Family Law Rules, the Family Violence Best Practice Principles of the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia. The ICL must also be familiar with other relevant best practice guidelines and where relevant, the protocols between the court and state and territory departments responsible for the investigation of child abuse.

   Family violence and abuse are serious issues whenever they have occurred and should always be presented as being so. They are considerations pursuant to section 60CC of the Act of which a court must take account. Their degree of relevance in a particular case should be considered with the assistance of a counsellor or other mental health professional who has knowledge of family violence and abuse issues. In appropriate cases a full assessment should be conducted by such a counsellor or other mental health professional prior to the matter being settled or heard by a court.”

1. In the matter of Dickens & Dickens [2016] FamCA 115 Justice Watts considered an Application that the Independent Children’s Lawyer be discharged. In paragraphs [46] to [53] His Honour summarised the relevant legal principals to be applied to such an application as follows:

   “Legal principles in respect of the removal of an Independent Children’s Lawyer

   46. The Legal principles in respect of the removal of an Independent Children’s Lawyer In Lloyd & Lloyd and Child Representative(2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:

   [11]  Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:

   (i) if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;

   (ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;

   (iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or

   (iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.

   47. At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:

   30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. 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. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.

   48. In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:

   [40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.

   49. Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children’s Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.

   50. If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?

   51. In T & L(2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:

   The critical question … is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father …

   52. The test that I shall apply is that the father needs to establish that the Independent Children’s Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children’s Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41]–[61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children’s Lawyer to argue firmly and fearlessly for what the Independent Children’s Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children’s Lawyer is in when fulfilling that role because it may be that the Independent Children’s Lawyer is required to challenge the position of one or other of the parents.

   53. It is usually the case that the Independent Children’s Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children’s Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children’s Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time...”

The Evidence

1. The Mother relies on her affidavit sworn 29 January 2017. She also made submissions at the hearing of the matter.

2. The Father relies on his affidavit sworn 7 June 2017. Brief submissions were made on his behalf at the hearing of the matter.

3. The Independent Children’s Lawyer, Ms Smith, relies on her affidavit sworn 7 June 2017. Submissions were made on her behalf at the hearing of the matter.

4. The Mother makes eight allegations against Ms Smith which she asserts support her application that Ms Smith be discharged as Independent Children’s Lawyer. I intend to deal with each allegation in turn.

Ms Smith is unlikely to be impartial and to consider the best interests of the children as a consequence of a complaint made by the Mother to Victoria Legal Aid

1. In paragraphs [12] to [14] of the Mother’s affidavit sworn 29 January 2017 the Mother deposes to making a complaint to Victoria Legal Aid about how Ms Smith had failed to properly discharge her role as Independent Children’s Lawyer. She alleges Victoria Legal Aid investigated her complaint and they were substantiated in part. It is her evidence that as the complaint was discussed with Ms Smith by Victoria Legal Aid as part of their investigations, Ms Smith was aware of her complaint. It is the Mother’s evidence that she believes

   
   

   Ms Smith would therefore be unable to continue to be impartial and consider the best interests of the children.

2. In paragraph [4] of Ms Smith’s affidavit sworn 7 June 2017 she deposes that she was required to provide a response to her manager Ms B regarding the complaint made by the Mother but “this does not change my commitment to act as independent children’s lawyer for [X] and [Y]”.

3. Ms Smith deposes that Ms B conducted the review of her file for the purposes of responding to the Mother’s complaint. Annexed to her affidavit is a copy of the response sent to the Mother by Ms B in relation to the Mother’s complaint.

4. Perusal of Ms B’ response show that the complaints the Mother makes of Ms Smith’s conduct as Independent Children’s Lawyer to Victoria Legal Aid are identical to those raised by the Mother in support of her Application that Ms Smith be dismissed as Independent Children’s Lawyer.

1. Having considered each of the concerns raised by the Mother,

   
   

   Ms B concludes her response to the Mother as follows:

   “Having reviewed the file, it is my view that there is no basis to the complaint except in relation to the late filing of the Outline of Case. I have spoken with Ms Smith in relation to this issue and put in place processes such as diarising and time management techniques to ensure that this does not occur in the future.”

2. In paragraph [13] of the Mother’s affidavit filed 29 January 2017 she deposes that Victoria Legal Aid recommended she should also complain to the Legal Services Commission.

3. In Ms B’s response, she writes that if the Mother is not satisfied with Ms B’ response, she can request that the complaint be reviewed by the Complaints and Statutory Compliance team at Victoria Legal Aid. There is no suggestion in Ms B’ correspondence that the Mother should take her complaint to the Legal Services Commission.

Ms Smith disregarded the Mother’s concerns that [X] and [Y] would be traumatised by meeting Ms Smith with the Family Report Writer Ms L as they have an extremely low opinion of her.

1. As part of her role as Independent Children’s Lawyer, Ms Smith arranged to meet with [X] and [Y] prior to the final hearing of this matter. Ms Smith made the decision to meet [X] and [Y] in the presence of Ms L in Ms L’s rooms.

2. On 24 August 2016 the Mother’s then solicitors wrote to Ms Smith as follows:

   “We refer to the above matter and have been instructed by our client that she does not believe it is in the children’s best interests to attend upon Ms L, even in the presence of the ICL for a further conversation/interview. Our client has concerns in relation to the preparation of the Family Report and believes further exposure to Ms L or any other counsellor would be emotionally traumatic for the children.

   Our client would prefer that the children not speak to any further counsellors, however if the ICL believes absolutely necessary would not object to the children speaking to the ICL.”

3. At 4.17pm on 31 August 2016 Ms Smith forwarded an email to the Mother’s then solicitor and the solicitors for the Father. The email read as follows:

   “Dear Practitioners,

   I refer to recent correspondence in this matter.

   I note Ms Sandix’s response to my proposal to meet the children with Ms L. I have considered the situation carefully, and I am of the view that arranging to meet the children with

   
   

   Ms L is appropriate in the circumstances of this case.

   I have arranged to meet with the children this Friday.

4. The Mother, who by this time was self-represented, responded to

   
   

   Ms Smith’s email at 8.15pm on 31 August 2016 in the following terms.

   “Dear Ms Smith, thank you for the notification .

   As previously mentioned i dont think that it is at all appropriate considering the number of professionals the children have been forced to see and their views that they are unable to speak freely or be themselves due to their fear of retribution from their father .

   The children had a particularly disturbing opinion of Ms L.

   [X] has previously commented on numerous occasions, “i dont want to talk to any more people or counsellors, i will just say whatever they expect me to say, you need to sort it out mum so we can come home.

   Please reconsider the detrimental effect this sort of situation and atmosphere has on the mental and emotional welfare of the children.

   Considering their level of schooling, hopefully this will not cause them to miss any more school time.”

5. Ms Smith deposes in paragraphs [6] and [7] of her affidavit sworn

   
   

   7 June 2017 that she did not disregard the concerns expressed by the Mother and that she took those views into account when deciding whether or not to meet the children in the presence of Ms L. She deposes that she was aware of Ms Sandix’s allegation that meeting with Ms L would cause [X] and [Y] distress and trauma and that they had an extremely low and distressing opinion of her. Ms Smith deposes that it is within her role to consider how to best meet with children, that she was mindful of the children’s ages, that there was a final hearing taking place and that their experiences and views were important in the case. She decided the best way to obtain [X] and [Y]’s views was to meet them with Ms L.

6. It was submitted on behalf of the Independent Children’s Lawyer by her Counsel that having considered the matter very carefully,

   
   

   Ms Smith’s view remained that it was appropriate for her to see [X] and [Y] and that the best way for her to do this was in the company of Ms L, with whom the children were familiar.

7. Further, it was submitted on behalf of Ms Smith that given the nature of the allegations that the Mother made about the very low opinion and supposed distress experienced by [X] and [Y] with

   
   

   Ms L, it was more than appropriate for the Independent Children’s Lawyer to see them with Ms L in order to assess the veracity of the Mother’s allegations.

Ms Smith breached the Court orders by filing her Outline of Case at 10.00pm the night before the final hearing.

1. Ms Smith filed her Outline of Case at approximately 10.00pm the night prior to the final hearing. In paragraph [20] of the Mother’s affidavit she deposes that this was in breach of Court orders and “…I believe was done to limit any time I would have for review before the case started.”

2. The Mother further deposes that as a self-represented litigant she may have theoretically needed more time to review and understand the document and that she may have directed her case differently if the Outline of Case had been filed on time and she had had time to review it.

3. Ms Smith concedes that she filed her Outline of Case late the night before the final hearing. In paragraph [8] of her affidavit sworn 7 June 2017 Ms Smith deposes that her Outline of Case was a detailed 18 page document that took her far longer than she anticipated to complete. She explains the late filing was due in part to her desire to be thorough. She deposes that she did not deliberately file the document late to limit either party’s ability to review the document and that it was filed as soon as she had completed it.

There was collusion and collaboration between the Father, the Father’s lawyers and Ms Smith illustrated by:

i)The Father, who failed to file an Outline of Case, immediately adopting that of the Independent Children’s Lawyer;

1. In paragraph [21] of the affidavit filed by the Mother she deposes that the Outline of Case filed by Ms Smith was extremely biased towards the Father and this, combined with the Father not filing an Outline of Case and the Father’s immediate adoption of Ms Smith’s Outline of Case without discussion between he and his barrister is proof of collusion.

2. In paragraph [10] of Ms Smith’s affidavit sworn 7 June 2017 she deposes that the Father did not immediately adopt the Outline of Case of the Independent Children’s Lawyer. She deposes that the relevant part of the transcript from the first day of the trial, which is annexed to her affidavit, indicates that the matter was stood down for the Father’s Counsel to have the opportunity to discuss her Outline of Case with the Father.

3. The Mother, after perusal of the transcript annexed to Ms Smith’s affidavit, conceded that Counsel for the Father advised the Court that his client had not seen the Independent Children’s Lawyer’s Outline of Case document and that the matter was stood down for well over 30 minutes to enable the Father to discuss that document with his Counsel.

4. Upon the matter resuming, the Court was advised by his Counsel that the Father was in agreement with the recommendations of the Independent Children’s Lawyer but reserved the right “to tweak” some of the Independent Children’s Lawyer’s proposals once the evidence in the matter had been heard.

5. Given the matter was listed before me I am able to confirm that this is how the matter unfolded on the first morning of the hearing.

6. I also note that at the commencement of the hearing Counsel for the Independent Children’s Lawyer apologised on behalf of Ms Smith for the late filing of her Outline of Case. Counsel for the Father apologised for not filing an Outline of Case document on behalf of the Father. He explained that he had been swamped by the extensive documents in the matter and had run out of time and had therefore not been able to prepare the document as requested by his instructing solicitor.

   ii)Ms Smith’s Outline of Case was written on behalf of the Father because of the collusion and scheming between Ms Smith, the Father and his lawyers;

7. In paragraph [21] of the Mother’s affidavit sworn 29 January 2017 she deposes that:

   “…the Father’s lawyers and the Father had schemed and colluded together to make sure the ICL outline of case was basically written on behalf of the father and this was just another attempt on their behalf to further manipulate the legal system to intimidate me as I was self-represented.”

8. In paragraph [9] of Ms Smith’s affidavit sworn 7 June 2017 she denies any collaboration or collusion with the Father’s legal team. She deposes that the Outline of Case was drafted and completed by her based on her consideration of the evidence in the matter. It is

   
   

   Ms Smith’s evidence that she did not discuss the Outline of Case with the Father’s solicitors or his Counsel and that it was disclosed to them at the same time as it was to the Mother. Ms Smith indicates that the only person with whom she discussed the Outline of Case before it being filed and served was her Counsel briefed for the trial.

9. It is submitted on behalf of Ms Smith that if the Court applied the test for whether the Independent Children’s Lawyer lacked impartiality as set out in Dickens (supra) a reasonable person sitting at the back of the courtroom would not perceive Ms Smith to lack impartiality simply because she had prepared an Outline of Case which favoured one party over the other. It is submitted that this is particularly so given the duty of the Independent Children’s Lawyer is to argue firmly and fearlessly for what they believe to be in the best interests of the children based on the evidence before them.

10. Ms Smith’s Counsel submitted that the Outline of Case document prepared by Ms Smith was prepared wholly by her after a thorough assessment of the evidence before the Court and, in accordance with her obligations as an Independent Children’s Lawyer, expressed clearly to the Court her views and recommendations on the basis of what she believed to be in the best interests of [X] and [Y].

11. It is submitted on behalf of Ms Smith that because Ms Smith’s views and recommendations did not accord with those of the Mother it does not mean that she had any bias against the Mother or bias for the Father.

    iii)Multiple “looks” passed between Ms Smith, the Father’s lawyer and barrister which is a further example of their collusion;

12. In paragraph [22] of the Mother’s affidavit sworn 29 January 2017 she deposes to the multiple looks passing between Ms Smith, the Father’s solicitor and barrister being an obvious means of communication between them and, whilst noting for most of the hearing the Father’s solicitor was not present, on the few occasions that she was those looks were exacerbated.

13. In paragraph [11] of Ms Smith’s affidavit sworn 7 June 2017 she denies there were multiple looks passing between herself and the Father’s solicitor and/or barrister. Ms Smith deposes that she was not present during the whole of the hearing, but when she was present she was seated in the last row of the court taking notes and listening to the evidence. She notes that at no time did she formally instruct and sit at the bar table opposite her Counsel. She notes that from her position in the court room it was not possible for her to exchange any looks with the Father’s Counsel. She denies that on the few occasions

    
    

    Ms Macgregor was present in court there were looks or communication between them save for on one occasion she spoke to Ms Macgregor to confirm she would contact Ms L when it was time for

    
    

    Ms L to give evidence.

14. 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.

15. 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.”

16. 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.

17. 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.

There is apparent collaboration and unnecessary or unrecorded communication between Ms Smith and the report writer.

1. 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.

2. 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.

3. 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.”

4. 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.

There was collaboration between the Father, the Family Report Writer and Ms Smith which is apparent from the Family Report to which

Ms Smith was a party and because of the “in depth discussion between

Ms Smith, the Family Report Writer and the Father when [X] and [Y] were brought in to meet Ms Smith.”

1. In paragraph [25] of the Mother’s affidavit sworn 29 January 2017, she deposes to the collaboration between the Family Report Writer and the Father as being obvious from her report, from the Family Report Writer’s failure to review affidavits and documents provided by her and her failure to include pertinent points in her report that would have been detrimental to the Father such as the children physically fighting and being abusive to each other in the Family Report Writer’s presence.

2. The Mother alleges that “Ms Smith is obviously included in the collaboration with the father and report writer” because of the in depth discussions that took place when the Father brought [X] and [Y] in to meet Ms Smith at Ms L’s rooms.

3. During the final hearing it was the Mother’s evidence that [X] told her that she and [Y] had a physical altercation in front of

   
   

   Ms L during the course of their interviews with her.

   
   

   Ms L was cross-examined about this alleged incident and it was her clear evidence that it did not occur.

4. In paragraph [16] of her affidavit sworn 7 June 2017 Ms Smith denies there was any collaboration between herself, the Father and the Family Report Writer. She deposes that there were no in depth discussions between herself, Ms L and the Father when she met [X] and [Y]. She deposes as follows:

   “I met the Father because he brought the children to Ms L’s rooms. The interaction was brief essentially a greeting and introducing the children. Otherwise I met with the children on their own and with Ms L present. The father was not present when I was speaking with the children except initially at the introduction.”

Ms Smith intervened and interfered in communication between the Father’s solicitors and the Mother and her communication with the Mother was unprofessional, threatening and intimidating.

1. On 12 October 2016 the Mother forwarded an email to the Father’s solicitors, which she copied to Ms Smith. In that email she advised that she was intending to attend [X]’s Enquiry Project presentation on 26 October 2016 and 2 November 2016. She wrote that if the Father’s solicitors failed to respond, she would take that as the Father consenting to her attending those events.

2. On 20 October 2016 Ms Smith responded to the Mother’s email in the following terms:

   “Dear Ms Sandix, current orders do not provide for you to attend these events, and therefore unless there is express consent, you should not be in attendance.

   I wish to make further enquiries and I will write to the parties on Monday.

   If you have already received an invitation from [X] to attend, please provide details of this.”

3. The Mother responded almost immediately to Ms Smith’s email in a lengthy email that advised that [X] had verbally discussed attending the presentation with her. She also expressed her ongoing concern that the Court and the legal system lack any understanding of family violence and repeated her allegations that the Father continues to use [X] and [Y]’s as weapons against her.

4. On 25 October 2016 Ms Smith forwarded a further email to the Mother, copied to the Father’s solicitors in the following terms:

   “Dear Ms Sandix, I understand that you would like to attend the presentation by [X] of her enquiry project. I acknowledge that the Judge is still considering the orders to be made in this matter and that we are all awaiting the decision.

   The current orders do not provide for your attendance at this event. After considering the current orders and the evidence at trial and [X]’s expressed views and the family situation, I confirm that there is not consent or authorisation for you to attend this event.

   That does not mean that you will not be permitted to attend further events. An invitation from the school does not override court orders.

   I understand that you may feel aggrieved by this situation.”

5. The Mother responded to Ms Smith’s email, copied into the Father’s lawyers, with a very lengthy email sent 7.07am on 26 October 2016. The Mother’s email was most demeaning of Ms Smith and contained such comments as:

   “…I’m not aggrieved but actually disgusted at your atrocious attitude and lack of concern for the children…”; and

   “…It is common knowledge, that those lawyers who have limited abilities and cannot obtain a position in a reputable law firm

   
   

   are the lawyers that work for legal aid (basically the worst

   
   

   of the worst). Your lack of ethics, insight, consideration and understanding would all be contributing factors to you apparently being in this category It appears your aim is to progress your career with complete disregard for the seriousness of the situation and the unimaginable situation the legal system has forced the children to endure, I doubt the detrimental media attention will be beneficial to your legal career progression. It may be interesting to let the media, the Legal Services Commissioner and Legal Aid deal with your appalling, self-centred attitude and desire to progress your career with complete disregard and disrespect for the children you are paid to represent…”

1. Ms Smith responded to the Mother’s email, copied to the Father’s solicitor, at 5.56pm on 26 October 2016. Having set out paragraphs [9] to [11] of the Orders of 28 July 2016, Ms Smith stated as follows:

   “I refer to your email sent to me at 7.07am this morning.

   I confirm that in the absence of consent between the parties or a specific court order. You are not authorised or permitted to attend [X]’s presentation of her Extended Enquiry project.

   If you attend in contravention of orders, then this matter may form the basis of a further interim application before the Federal Circuit Court. In my view that would not be in the children’s best interest.

   I advise you to seek independent legal advice.”

2. On 28 October 2016 the Mother responded to Ms Smith’s email, copying in the Father’s solicitor in which she writes inter alia that it is not up to Ms Smith to make the decision, that she does not have the authority and that if she is acting for the other party then this is further evidence of collusion and collaboration with them. The Mother also wrote that Ms Smith was not to attempt to intimidate her with threats of legal action and again challenged Ms Smith’s professional capabilities.

3. The Mother sets out her allegations of Ms Smith’s interference in her communication with the Father’s solicitors in paragraphs [26] to [29] of her affidavit sworn 29 January 2017. She deposes that Ms Smith was only included in her initial correspondence out of professional courtesy and that she was not asked for advice and did not have the authority to intervene and respond as “it had nothing to do with her”.

4. The Mother also deposes that Ms Smith’s responding to her initial email to the Father’s solicitors is further proof of collaboration between Ms Smith and the Father’s lawyers given her communication requested a response from the Father only and put him on notice a failure to respond would be taken by her to be consent.

5. The Mother alleges that Ms Smith would not have “threatened legal action” if she had been legally represented nor would she have attempted to intimidate and manipulate her.

6. In paragraph [17] of Ms Smith’s affidavit sworn 7 June 2017 she refutes the Mother’s allegation that her communication was unprofessional or a breach of legal guidelines. She argues that her correspondence was neither threatening nor intimidating but rather an attempt to communicate to the Mother that as the event she was wishing to attend was not specified in the Interim Orders of 28 July 2016 then absent the consent of the Father or a specific order of the Court she was not permitted to attend.

7. Ms Smith also deposes that she is a party to the proceedings and as such it is appropriate she responded to the Mother’s correspondence.

8. Counsel for the Independent Children’s Lawyer submitted that a perusal of the correspondence by Ms Smith to the Mother cannot be seen to be derogatory or in any way threatening. It was submitted that Ms Smith’s correspondence was nothing more than professional, appropriately worded correspondence that was sent by the Independent Children’s Lawyer in response to communication from the Mother that indicated she was going to attend at [X]’s school in circumstances where the existing court orders did not permit her to do so.

Ms Smith has no insight into the behaviour and care of children who are victims of family violence.

1. In paragraph [30] of her affidavit sworn 29 January 2017 the Mother deposes that Ms Smith has no knowledge or understanding of the impact of family violence on children. She deposes that both [X] and [Y] are terrified of the Father, that he threatens them, threatens her and they live with the concept “if that’s what he does to my mum, what will he do to me.”

2. In paragraph [14] of her affidavit sworn 7 June 2017 Ms Smith refutes the Mother’s allegations that she has no insight into the behaviour and fear of children who are victims of family violence. She deposes that she has practised as an Independent Children’s Lawyer for over 10 years during which period she has had training into the impact of family violence on children as well as heeding the advice of experts regarding the presentation of children who are the victims of family violence.

3. Ms Smith notes the Mother’s allegation that [X] and [Y] are afraid of their father and highlights that in the judgment of

   
   

   24 January 2017 the Court formed the view that [X] and [Y] are not fearful of their father and that they have a loving relationship with him.

4. Ms Smith notes the Mother’s ongoing refusal to accept the findings of the Court or that [X] and [Y]’s statement to the four experts they have spoken to over the last 3 years that they have a loving and close relationship with the Father are a true reflection of their feelings.

5. It is submitted on behalf of the Independent Children’s Lawyer that the Mother’s belief that [X] and [Y] are fearful of the Father has not altered since the matter was first before the Court in 2014 and that sadly, it would appear nothing will ever convince the Mother otherwise.

The Father

1. In the Father’s brief affidavit sworn 7 June 2017 he deposes that a great deal of the concerns raised by the Mother in her affidavit sworn 29 January 2017 are unknown to him.

2. The Father deposes that in his very limited dealings with the Independent Children’s Lawyer, he found her to have always been professional and appropriate and that he never found her to be either threatening or intimidating. He makes the observation that he finds her quite a humble person.

3. The Father deposes in paragraph [5] of his affidavit sworn 7 June 2017 that he believes that it would be detrimental to [X] and [Y] to have a new Independent Children’s Lawyer appointed. The Father deposes that whilst he has not questioned [X] and [Y] about their dealings with Ms Smith, they have never indicated that they are unhappy with her. He is concerned that given the large number of professionals that [X] and [Y] have been required to be involved with as a result of the Mother’s ongoing litigation, it would not be in their best interests if they were required to meet yet another professional in the event that there were a further Independent Children’s Lawyer appointed in this matter.

4. In relation to the Mother’s allegation that there was a direct collaboration between himself, Ms L and Ms Smith when he took [X] and [Y] to Ms L’s office to meet

   
   

   Ms Smith, the Father denies that this occurred. It is his evidence that when he brought [X] and [Y] to meet Ms Smith at

   
   

   Ms L’s office, other than introducing [X] and [Y] to Ms Smith he had no other interaction with her or Ms L during the course of their meeting.

Conclusion

1. Having considered the Mother’s evidence in support of her application to have Ms Smith discharged as Independent Children’s Lawyer  and Ms Smith’s response to those allegations, I have formed the very strong view there is nothing in the Mother’s evidence that supports an order being made for Ms Smith’s dismissal as Independent Children’s Lawyer.

2. Ms Smith is an experienced Independent Children’s Lawyer who in the proper performance of her duties has to fearlessly express her views and opinion as to what is in the best interests of children. Because those views have not found favour with one of the children’s parents because those views are not favourable to them, she has been subject to criticism and complaint by that parent. This is part of the burden of being an Independent Children’s Lawyer.

3. I do not accept that Ms Smith cannot continue to remain impartial, and more importantly, represent the best interests of [X] and [Y] because of the complaints made by the Mother about her to Victoria Legal Aid.

4. There is an expectation that the Independent Children’s Lawyer will meet with the children that they are representing, particularly when they are children of [X] and [Y]’s age. It is not at all uncommon for an Independent Children’s Lawyer to meet the children in company with the Family Report Writer, particularly when the Family Report Writer is already known to the children.

5. The Mother raised her concerns with Ms Smith about the appropriateness of her decision to meet [X] and [Y] with Ms L. I am satisfied that Ms Smith properly and seriously considered the concerns raised by the Mother before she satisfied herself that it was in [X] and [Y]’s best interests that she meet them with Ms L.

6. It was Ms L’s evidence at the final hearing that [X] and [Y] were not traumatised by Ms Smith meeting them with her. I accepted Ms L’s evidence of that meeting.

7. Ms Smith filed her Outline of Case document later than was ordered

   
   

   by the Court. The Outline of Case document filed by her was comprehensive, detailed and insightful. Her explanation that the late filing was caused by its preparation being more complicated and taking her longer than anticipated is reflected in the quality of the document that was filed.

8. Whilst the late filing by Ms Smith of her Outline of Case is in no way condoned, I am not of the view that either party was disadvantaged by that late filing.

9. As set out earlier in this judgment, the guidelines for Independent Children’s Lawyers require the Independent Children’s Lawyer to work together with any relevant expert involved in the case to promote the best interest of the children. Communicating with Ms L to arrange appointments, clarify aspects of her report, make arrangements for her to give evidence, advise her of the outcome of the interim hearing and to arrange for Ms L to be with her when meeting [X] and [Y] were all appropriate communications between the Independent Children’s Lawyer and the expert, in this case

   
   

   Ms L. There is nothing in that communication that was inappropriate, unnecessary or conducted in any inappropriate or unethical way.

10. There is no evidence whatsoever of any collusion or collaboration between the Father, the Family Report Writer and Ms Smith. It is apparent from the evidence that the only occasion that Ms Smith met the Father absent his legal representatives was on the occasion when he, at the request of Ms Smith, brought [X] and [Y] to meet her at Ms L’s rooms. I accept Ms Smith and the Father’s evidence that on that occasion they did nothing more than exchange pleasantries and the Father introduced [X] and [Y] to her. These communications were appropriate and in no way support any allegation of collusion.

11. The communication between the Mother and Ms Smith relating to the Mother’s request/statement of intent to attend [X]’s Enquiry Project presentation has been set out in paragraphs [59] to [71] of this judgment.

12. As Independent Children’s Lawyer, Ms Smith is charged with acting at all times in the best interests of [X] and [Y]. The Mother’s proposed attendance at [X]’s presentation would have been in breach of the existing orders for the time that the Mother was to spend with [X] and [Y]. Having heard all the evidence at the final hearing, Ms Smith held a genuine concern that the Mother’s attendance would not be in best interests of [X].

13. It was incumbent upon Ms Smith to respond to the Mother’s correspondence and to bring to her attention that it was not appropriate for her to attend the presentation unless there was clear consent to do so from the Father. Further, it was appropriate that Ms Smith advise the Mother that if she were to attend the presentation she would be at risk of being in breach of the orders and facing possible applications arising from that breach.

14. There is nothing in the tenor of Ms Smith’s communications that is unprofessional, threatening or intimidating. The correspondence and responses by Ms Smith to the Mother are in the same terms as I would anticipate and expect her to respond to any party’s legal practitioners.

    
    

    I reject the Mother’s allegation that Ms Smith would have communicated in any way differently to the manner in which she did if the Mother had been legally represented.

15. Ms Smith is an Independent Children’s Lawyer of in excess of 10 years’ experience. As an Independent Children’s Lawyer she is required to undergo extensive and regular training including training in relation to the impact on children and parties who are the victims of family violence.

16. As discussed with the Mother during the hearing of her Application, I am familiar with the training undertaken by Independent Children’s Lawyers as I have both been a presenter of and participated in that training. I am more than satisfied that the Mother’s assertions that

    
    

    Ms Smith lacks expertise and understanding of the impact of family violence on children and the victims of violence are without foundation.

17. Finally, I will deal with the Mother’s allegation that Ms Smith was in collusion with the Father and the Father’s lawyers.

18. Neither the Father nor the Father’s Counsel saw Ms Smith’s Outline of Case until the morning of the hearing.

19. I accept unreservedly Ms Smith’s evidence that her Outline of Case document was prepared entirely by her and that it reflects her assessment of the evidence of the parties and of the experts. The views and recommendations formed by her are a result of her assessment of that evidence.

20. On the morning of the first day of the final hearing the matter was stood down to allow the Father the opportunity to read Ms Smith’s Outline of Case as until then he had not had the opportunity to do so. Having perused the document and discussed it with his Counsel, the Father adopted the recommendations of the Independent Children’s Lawyer as he was entitled to do.

21. The Mother, who was self-represented, was not in a position to see what was happening behind her in the courtroom. Ms Smith, when present, sat in the last row of seats in the body of the courtroom, where she took notes and listened intently to the evidence that was being given. There were no looks that passed between her and the Father’s Counsel or on the very few and short occasions that the Father’s solicitor was in court, between Ms Smith and the Father’s solicitor that I observed.

22. The main thrust of the Mother’s allegation that the Independent Children’s Lawyer colluded with the Father and the Father’s lawyers would appear to be that her recommendations favoured the Father rather than her and that the Independent Children’s Lawyer did not agree with the Mother’s belief that [X] and [Y] are fearful of the Father and their statements to Ms L that they wanted to live with the Father were as a result of that fear.

23. In the matter of Knibbs & Knibbs [2009] FamCA 840 Justice Murphy determined an application that an Independent Children’s Lawyer be dismissed. At paragraphs [41] to [45] of His Honour’s judgment His Honour held as follows:

    41. It is important to understand that, although an ICL is in a unique position vis-à-vis their client by reason of that client being a child, and a child who is the subject of competing contentions by his or her parents, the ICL nevertheless has each and all of the same professional obligations owed to the court that any legal practitioner has.

    42. Further those obligations might be seen to be particularly clear given that their professional judgment should not, unlike a legal practitioner acting for a party, be potentially influenced by, or potentially clouded by, any competing requirement to act only in accordance with a client's instructions.

    43. Once it is understood that the ICL's primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances — provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.

    44. Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.

    45. In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).

24. Further in his judgment, Justice Murphy made the following observations at paragraphs [49] to [51]:

    49. The obligation upon an ICL to act objectively and impartially should not be seen as meaning that he or she should act as a benign or ambivalent mouthpiece for competing evidence. Frequently, doing so can involve an abdication of their proper professional responsibilities.

    50. The ICL (and counsel appearing for the ICL) should be no less courageous, and no less firm, and no less cogent, in advocating for a result or findings — based on a careful analysis of evidence properly before the court — than any other advocate or legal practitioner.

    51. Of course, as earlier observed, the ICL's obligations differ from those of a legal practitioner representing a party; the former is not constrained by instructions; the latter is. The ICL's clear obligations are likely to bring them into conflict with a party whose views or case run contrary to that which is asserted by the ICL. But, this is not a circumstance disqualifying an ICL from pursuing, and pursuing strongly, what he or she considers to be an outcome in the children's best interests. In fact, frequently, the opposite is the case: the views or attitudes held by a parent can be the very reason why an ICL argues directly contrary to them.

25. In this matter I am satisfied that Ms Smith, having carefully analysed the evidence before the Court, put before the Court her views and recommendations that she considered to be in [X] and [Y]’s best interests.

26. That Ms Smith’s views and recommendations favoured the Father and not the Mother does not in any way mean that she was biased against the Mother or that she had somehow colluded with the Father.

    
    

    Ms Smith was properly, professionally and appropriately discharging her obligations as an Independent Children’s Lawyer in accordance with the requirements of the Act and of the guidelines for the conduct of Independent Children’s Lawyers.

27. Accordingly, the Mother’s application that Ms Smith be discharged as the Independent Children’s Lawyer for [X] and [Y] is dismissed.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 7 September 2017