Sawer and Hugh (No. 3) - [2010] FamCA 388

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (NO. 3)

[2010] FamCA 388

FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – Striking out of father’s application to remove the Independent Children’s Lawyer – best interests of children the paramount consideration – procedure and venue to be adopted for security reasons

Family Law Act 1975 (Cth) ss11F, 67ZA, 70NBA.

Sawer & Hugh [2009] FamCA 496
Buljubasic and Buljubasic (1999) FLC 92-865

APPLICANT:

Mr Sawer

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

David Walker & Co

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

21 May 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

18 - 19 May 2010

REPRESENTATION

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Temple-Smith Partners

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

David Walker & Co

Orders

IT IS ORDERED:

That the father’s application filed 5 May 2010 for the removal of Mr Walker as independent children’s lawyer for the children of the marriage J born … June 1996, E born … January 1999 and H born … January 1999 be struck out with a right of reinstatement for determination by me on not less than 28 days notice in writing to each other party to the proceedings or further order of the Court.
That Exhibits “C1” to “C4” inclusive be copied and sent to the independent children’s lawyer and the practitioners for the mother and then remain on the Court file.
That subject to any further order of the Court, the further hearings in these proceedings be conducted in the Hobart Registry of the Court.
That I permit the independent children’s lawyer to make an oral application for costs of and incidental to today and the father’s application for his removal in the sum of $1861.75 and I reserve my decision in relation to those costs.
That I give leave to the wife to make an oral application for her costs of and incidental to this day in the sum of $1753.00 and reserve my decision in relation to those costs.
That the hearing on 24 March 2010 be confined to the final determination of the application for variation of parenting orders (including injunctions) referred to in paragraph 12 of the Order made on 17 March 2010 and brought pursuant to Section 70NBA.
That the persons to whom the therein injunctions are directed, being Mr Sawer and Ms B, file and serve any affidavit material upon which he/she relies by not later than 12.00 noon on 21 May 2010 and the mother and the independent children’s lawyer do likewise.
That the application of the paternal grandparents against the mother to spend time with the girls E born … January 1999 and H born … January 1999 recommence on 25 May 2010 at 10.00 am and each party be at liberty to file and serve any affidavit material upon which they rely or absent doing so, to apply to give evidence orally and, in either event, be available for cross-examination.

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.

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Details

Case: [2010] FamCA 388
Decision Date: 21 May 2010

CaseChat Overview and Summary

This matter came before Bennett J concerning an application by the father to remove the Independent Children's Lawyer (ICL) for the children of the marriage. The father alleged bias and "systems abuse" by the ICL, citing statements made by the ICL and a perceived focus on negative aspects of the father without comparable scrutiny of the mother or maternal grandmother. The father also claimed the ICL had misled the court by taking information out of context and pressuring teachers to sign affidavits.

The court was required to determine whether the father had established sufficient grounds to remove the ICL. This involved considering the allegations of bias, the concept of "systems abuse" as defined in the relevant guidelines, and the father's claims regarding the ICL's interactions with school personnel and the evidence presented. The court also had to assess the weight to be given to the father's assertions, particularly in light of the lack of supporting affidavits from certain individuals he referenced.

Bennett J struck out the father's application for the removal of the ICL, with a right of reinstatement upon 28 days' notice. The court also made various directions regarding the copying and distribution of exhibits, the location of further hearings, and the conduct of oral applications for costs by the ICL and the wife, with decisions on these costs reserved. Further directions were given concerning the final determination of an application for variation of parenting orders, the filing of affidavit material by parties directed to comply with injunctions, and the recommencement of an application by the paternal grandparents for time with the children. The court also abridged times for the issuance of subpoenas and directed that audio or visual recordings of certain incidents be made available at the Hobart Registry.

Orders

Orders of the court

IT IS ORDERED:

That the father’s application filed 5 May 2010 for the removal of Mr Walker as independent children’s lawyer for the children of the marriage J born … June 1996, E born … January 1999 and H born … January 1999 be struck out with a right of reinstatement for determination by me on not less than 28 days notice in writing to each other party to the proceedings or further order of the Court.

That Exhibits “C1” to “C4” inclusive be copied and sent to the independent children’s lawyer and the practitioners for the mother and then remain on the Court file.

That subject to any further order of the Court, the further hearings in these proceedings be conducted in the Hobart Registry of the Court.

That I permit the independent children’s lawyer to make an oral application for costs of and incidental to today and the father’s application for his removal in the sum of $1861.75 and I reserve my decision in relation to those costs.

That I give leave to the wife to make an oral application for her costs of and incidental to this day in the sum of $1753.00 and reserve my decision in relation to those costs.

That the hearing on 24 March 2010 be confined to the final determination of the application for variation of parenting orders (including injunctions) referred to in paragraph 12 of the Order made on 17 March 2010 and brought pursuant to Section 70NBA.

That the persons to whom the therein injunctions are directed, being Mr Sawer and Ms B, file and serve any affidavit material upon which he/she relies by not later than 12.00 noon on 21 May 2010 and the mother and the independent children’s lawyer do likewise.

That the application of the paternal grandparents against the mother to spend time with the girls E born … January 1999 and H born … January 1999 recommence on 25 May 2010 at 10.00 am and each party be at liberty to file and serve any affidavit material upon which they rely or absent doing so, to apply to give evidence orally and, in either event, be available for cross-examination.

That I abridge all necessary times to permit any party who has filed an application in these proceedings to cause subpoenae to issue for the production of documents or to give evidence in the week commencing 24 May 2010.

IT IS DIRECTED:

10.

That any audio or visual recording of the alleged security incident on 12 May 2010 at the Launceston Registry and of the hearing yesterday, 18 May 2010, be delivered to the Hobart Registry and be made available for viewing at that Registry by any party to the proceeding and/or his or her lawyer by arrangement with the Registry Manager or Registry Services Team Leader.

11.

That a sealed copy of this Order be sent by facsimile or email as is available by the Registrar to the following persons:-

a) Ms B, Solicitor, …, facsimile (03) …, email …;

b) The father, Mr Sawer, Care of 110 …, email …; and

c) The solicitor for the paternal grandparents, Ms Charmaine Gibson, of Zeeman Kable & Page, …, facsimile 03 …, email ….

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The father further alleges bias of the ICL as against him. He refers to the ICL repeatedly stating on 12 May 2010 that the father “is not a fair-minded person”, and that this is evidence of such bias. In his affidavit filed 5 May 2010, he also alleges that the ICL has repeatedly focussed “on any negative aspects of the father, however he has provided no evidence with regard to the fitness of the mother or maternal grandmother”. The father also alleges that the ICL has engaged in what he describes as “systems abuse”, as described in the Glossary of Terms, item 12, of the Guidelines. Systems abuse is described in the Guidelines as being:“…when a child is further traumatised by the systems (courts, child protection or other State Welfare Authority), which he/she encounters or which are appointed to make decisions about the child.”The father alleges that such systems abuse has been directed by the ICL towards the children and other parties, although he does not specify which parties. The father further particularised that the ICL demonstrated systems abuse and bias in that:“…the only material filed in response to this application, was a list of bad qualities of the father, some of which are nothing more than unsubstantiated allegations from Mr. Walker.”The father criticises the ICL in that he did not provide any “documentary evidence” as to what he perceives to be the list of unsubstantiated bad qualities. In referring again to the Glossary of Terms in the Guidelines, the father alleges that the Independent Children’s Lawyer cannot be described as an “Honest Broker” because the father, the paternal grandparents and J question the ICL’s impartiality. The father provides no further evidence in support of this claim. The father claims that on 14 May 2010, he had a meeting with the deputy principal of J’s school, S School, Mr MC. The father claims that Mr MC “confirmed” to the father that the Independent Children’s Lawyer has “failed in almost all areas”. The father further alleges that Mr MC confirmed to the father that he had been “present during a telephone and contact meetings with [J]”. It is unclear as to whether such meetings referred to were meetings between J and the ICL. Mr MC has not filed an affidavit in support of this application. The father alleges that the ICL has “attempted to mislead” the Court by:“…taking out of content out of context by information provided by teachers at [L] School…and by pressuring the teachers to sign affidavits written by Mr Walker.”He claims that in a meeting with the L School principal in March 2010 the principal told him “he was disappointed by Mr Walker’s representations”. The father claimed he provided court documentation to the principal. He further makes reference to the affidavit of Ms VN, Annexure “G” to his previous affidavit filed 5 May 2010. The affidavit of Ms VN appears to have been sworn before a Justice of the Peace, however has not been filed separately in these proceedings and is instead an annexure, as discussed above. The affidavit details that Ms VN is a teacher employed at L School, however she deposes that she is “not actually [H] and [E’s] class teacher”. The brief affidavit outlines her attendance in a meeting between the Independent Children’s Lawyer and the twins on 31 March 2010 as she had taught the twins in 2007 and in 2009 and she has “a good relationship with them”. Ms VN annexes a record of that meeting to her affidavit, apparently prepared by her on 1 April 2010.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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