SARGENT & SELWYN - [2019] FamCAFC 232

FAMILY COURT OF AUSTRALIA

SARGENT & SELWYN

[2019] FamCAFC 232

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant father seeks to have the Independent Children’s Lawyer discharged – Best interests of a child – Where the Independent Children’s Lawyer had been discharged pursuant to orders made by the primary judge – Where the appellant father had numerous complaint concerning the Independent Children’s Lawyers conduct during the proceedings – Where the Independent Children’s Lawyer had met their obligation in regards to presenting evidence – Where the father’s claims of the Independent Children’s Lawyer being partisan towards the mother does not withstand scrutiny – Where the Full Court makes an order for the Independent Children’s Lawyer to be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth) – Application dismissed.

Family Law Act 1975 (Cth) ss 60CA, 64B(2), 68L, 68LA
Family Law Rules 2004 (Cth) rr 8.02, 22.04, 22.05
Federal Circuit Court Rules 2001 (Cth) r 16.05

Bennett and Bennett (No 2) (1994) FLC 92-463
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76
Magro & Magro (1989) FLC 92-005; [1989] FamCA 2
Re K (1994) FLC 92-461; [1994] FamCA 21

APPELLANT:

Mr Sargent

RESPONDENT:

Ms Selwyn

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

SYC

7405

2013

APPEAL NUMBER:

142

2018

DATE DELIVERED:

12 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Austin JJ

HEARING DATE:

12 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2018

LOWER COURT MNC:

[2018] FCCA 2836

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders made on 12 November 2019

The appellant’s Application in an Appeal filed 16 October 2019, seeking that the Independent Children’s Lawyer be discharged from the appeal, be dismissed.
Pursuant to s 68L(2) of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed on behalf of the child, X born … 2012, including in the appeal, and that this order operate from the date of filing the Notice of Appeal.
The appellant’s Application in an Appeal filed 16 October 2019, seeking to adduce further evidence in the appeal, be dismissed.
Judgment be reserved.

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 Sargent & Selwyn 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 142 of 2018
File Number: SYC 7405 of 2013

Mr Sargent

Appellant

And

Ms Selwyn

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

This is an appeal against final parenting orders made by a judge of the Federal Circuit Court of Australia in relation to the parties’ son, X, born in 2012 (“the child”). By an Application in an Appeal filed on 16 October 2019, the appellant, Mr Sargent (“the father”), seeks that the Independent Children’s Lawyer (“ICL”) be “discharged from the [a]ppeal” (Application in an Appeal filed by the father on 16 October 2019, p.3).
Section 68L(2) of the Family Law Act 1975 (Cth) (“the Act”) makes provision for the independent legal representation of a child’s interests in proceedings in which, relevantly, the child’s best interests are the paramount or a relevant consideration, as is the situation here. An order for the appointment of an ICL was made in the Federal Circuit Court of Australia on 22 February 2018 and, in due course, the Legal Aid Commission of New South Wales appointed Mr Samuels (“the ICL”). As the trial transcript and reasons demonstrate, the ICL was actively involved in the proceedings and, with counsel, appeared at trial.
The ICL and the respondent, Ms Selwyn (“the mother”), opposed the father’s application for the ICL’s discharge and proposed that the ICL continue to represent the child’s interests in the appeal.
In broad terms, the father complains that the ICL failed to meet Legal Aid Practice Standards for an ICL and the National Legal Aid Guidelines for Independent Children’s Lawyers. His complaints are numerous, but essentially assert that the ICL:
·failed to present evidence to the Court in relation to the child’s views;
·failed to critically examine the family report and evidence given by the family consultant;
·is partisan in his dealings with the parties, that is, the ICL favours the mother; and
·given that the order for the appointment of an ICL was discharged by Order 27 made on 4 October 2018, the ICL has acted beyond the scope of his authority.
It is well settled that this Court may control its own procedures by, inter alia, restraining a particular lawyer from continuing to represent a party in contested proceedings (Magro & Magro (1989) FLC 92-005). This includes an ICL appointed to represent a child’s interests (Bennett and Bennett (No.2) (1994) FLC 92-463).
An order appointing an ICL is not a parenting order within the terms of s 64B(2) of the Act and, therefore, does not directly invoke the application of the paramountcy principle contained in s 60CA of the Act. But, as the plurality (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 said:
87.… In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.
It follows that, although the order for the removal or discharge of an ICL is not a parenting order, the best interests of the child is a factor to be afforded great weight in deciding whether or not the ICL should be removed.
The role of the ICL is contained in s 68LA of the Act and has, as its focus, the obligation of an ICL to “act in relation to the proceedings in what the [ICL] believes to be the best interests of the child” (s 68LA(2)(b) of the Act). As Kirby J said in CDJ v VAJ(No 2) (1998) 197 CLR 172 at 246; [1998] HCA 76 at [11], this duty and, in my view, also the role of the ICL, “carries over to an appeal”.
However, the question to be answered is whether the role continues after the order for an ICL has been discharged. We have not had the benefit of detailed argument on the point, but my preliminary thought is that it does not. This is because the role is a creature of statute which requires an order pursuant to s 68L(2) of the Act to operate. Thus, in a strict sense, once the primary judge discharged the order for an ICL, the role and duty of this ICL was exhausted.
That said, where a trial has been undertaken with an ICL, the ICL should be treated as a person affected by the proceedings and is to be served with the Notice of Appeal in accordance with r 22.04 and r 22.05 of the Family Law Rules 2004 (Cth) (“the Rules”). Thereby once informed of the appeal, if the order for the ICL has been discharged, the ICL could seek a new order, for example, from the Appeals Registrar. Of course, none of these difficulties arise if an order discharging the order for an ICL is expressed as being subject to any appeal. If that is done, as it often is, then, as I mentioned earlier, the role and duty of the ICL continues for the appeal. As to proceedings undertaken in the Family Court of Australia see r 8.02 of the Rules.
It is apparent that in this case, this did not happen. This is an oversight that can be easily fixed and, subject to the father’s complaints about the ICL being made out, I would make an order for an ICL to be appointed and express it to operate from the date of filing of the Notice of Appeal. There can be no doubt that these proceedings readily fall within the guidelines for the appointment of an ICL laid down in Re K (1994) FLC 92-461.
Turning then to the complaints made by the father over and above that concerning the effect of Order 27. The first complaint concerns the failure of the ICL to present evidence to the Federal Circuit Court in relation to the child’s views. The child is young and a family consultant was appointed to investigate and report upon the child and his family. This included consideration of the child’s views and, in the circumstances of this case, nothing more needed to be done by the ICL to satisfy this obligation. It is plain that the ICL met with the child during the course of proceedings below and the father’s complaint is not made good.
The second complaint made by the father concerns the assertion that the ICL failed to critically examine the family report and evidence given by the family consultant. Reference to the trial transcript shows that this complaint is also lacking in foundation. Merely because the ICL took a position that at times was different to that taken by the father in relation to the evidence given by the family consultant, including in the family report, does not establish a failure to critically examine that witness’s evidence.
The suggestion that the ICL has been partisan towards the mother also does not withstand scrutiny. As was said this morning, in relation to important matters at trial, the ICL adopted a position different to that relevantly of the mother, including on the important question of the amount of time that the child would spend with his father. The fact that the ICL was ultimately supportive of the mother’s application for an order pursuant to the slip rule (r 16.05 of the Federal Circuit Court Rules 2001 (Cth)), does not establish the point of lack of impartiality.
Finally, the father submitted, in reference to the submissions contained at page 10 and 11 of his affidavit filed 16 October 2019 in support of this application that, at trial, counsel for the ICL misstated the evidence, in particular, in relation to an article relied on by the father authored by Mr Warshak. Similarly, that the ICL’s Summary of Argument filed 2 October 2019 in the appeal, focuses on findings made by the primary judge contra the father when there are findings contra the mother that might otherwise have established a similar point.
In my view, it is not at all surprising, if, indeed, it is the case, that counsel for the ICL in their closing address at trial may have misunderstood the gravamen of some of the evidence. I note that the appeal book is just shy of 2000 pages. The amount of material that was presented in a case of not obvious complexity is, in my view, frankly extraordinary and I would not join in the criticism made by the father about the submissions made by counsel for the ICL to the primary judge. Nor should counsel for the ICL be criticised for referencing at paragraph 20 of the Summary of Argument filed 2 October 2019 in the appeal, [4]-[9] of the primary judge’s reasons. It will be a matter for argument in the appeal whether the submission is made good, but it is not so fallacious on its face that it could properly be cloaked as partisanship or a deliberate attempt to misstate the evidence.
I would, therefore, dismiss the application for the discharge of the ICL and I would make an order pursuant to s 68L of the Act for an ICL to be appointed in the appeal. It is plainly in the child’s interests that his interests are represented in the appeal. They may, in some circumstances, coincide with those of either the child’s mother or his father, but the volume of the evidence, the familiarity of this ICL and his counsel with the case presented below and the importance that I place on a child in this child’s position of having his interests protected in the appeal justifies the orders.

Aldridge J

I agree with the reasons of and the orders proposed by the Presiding Judge.

Austin J

I agree with the orders proposed and the reasons given by the Presiding Judge.

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 12 November 2019.

Associate :

Date: 29 November 2019