Sawer and Hugh (No. 3)
[2010] FamCA 388
•21 May 2010
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 | of | 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.
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:
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.
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 ….
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MR SAWER |
Applicant
And
| MS HUGH |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
This matter came before me on 18 and 19 May 2010 for the hearing of the Application in a Case filed by the father, Mr Sawer, on 5 May 2010 in which he sought that the Independent Children’s Lawyer, David Walker, be removed from the proceedings and that a new Independent Children’s Lawyer be appointed. The father also seeks that the parties be ordered to partake in a conciliation conference prior to the next Court event which is now listed for 24 May 2010.
The substantive proceedings in this matter concern the children J, born in May 1996, and the twins, E and H, born in January 1999. By order of this Court the twins reside with their mother. J resides with his father, having run away from the mother’s residence in mid-2009. There are no orders of the Court as to the parental responsibility of J or with whom he should live.
There are parallel proceedings.
a)Pursuant to s.70NBA, the mother seeks a variation of parenting orders and injunctions. Amongst other things, previous injunctions were expanded to restrain the father and his partner, Ms B, from attending at the children’s school functions which are held outside school grounds and competitive basketball activities in circumstances where, by an orders made on 12 March 2009, the father was already enjoined for attending at or within 200 metres of the girls’ school or the mother’s home. These proceedings are set down for hearing on 24 May 2010.
b)The paternal grandparents seek orders against the mother that they spend time with the twin girls. Those proceedings are listed to recommence before me, in Hobart, on Tuesday 25 May 2010.
The father has participated in the latter proceedings but, to date, does not participate in proceedings between his parents and the mother.
Having regard to the hearings next week, I pronounced orders on 19 May 2010 and advised the parties that I would deliver my reasons subsequently. These are those reasons.
The father’s application, filed 5 May 2010, seeks the following orders:
1.That David Walker be immediately dismissed from all proceedings in a matter of [Sawer and Hugh] LNC 511/2008 as well as SA24/2010.
2.That a new ICL be appointed from the Launceston area.
3.That the parties partake in a conciliation conference prior to the next court proceedings.
The father appeared in person before me on 18 May 2010. In support of his application the father relies on his affidavit sworn and filed on 17 May 2010. He also relies on his affidavit sworn and filed on 5 May 2010, an affidavit of Ms B (his partner) sworn and filed on 15 April 2010 and an affidavit of Ms VN (school teacher), sworn 26 April 2010 and annexed to the affidavit of the father filed 5 May 2010. Because the father served material only on the morning of the hearing, the hearing was required to be adjourned to today. Because of the father’s uncontrolled and violent behaviour during the appearance on 18 May 2010, which I will discuss in greater detail below, I required the hearing to be reconvened in Hobart, as opposed to Launceston. The earliest possible opportunity was 2.00 p.m. on 19 May 2010. On that day there was no appearance by or on behalf of the father although there is some background to that which I will also discuss in detail below.
The paternal grandfather appeared in person before me on 18 May 2010. He filed a Notice of Address for Service nominating as his address for service the father’s address. The father’s address is also the practise address for the law firm of his partner, Ms B, who is a lawyer. The paternal grandfather made it clear that he supports the father’s case but makes no application of his own. No objection was taken to the paternal grandfather not filing documents which, in all the circumstances seemed sensible to me. He said that he only wanted to make submissions. We discussed that his submissions would be restricted to the application of the law and he confirmed that he does not seek to adduce or rely upon evidence. On 19 May 2010 the lawyers who previously acted for the paternal grandparents, Zeeman Kable & Page, advised that they were again acting, would file an address for service in due course and that their client did not seek to be heard on the father’s application[1].
[1] Exhibit “C3”
The ICL appeared by telephone link up to the Launceston and Melbourne Registries on 18 May 2010 and in Court, in Hobart, on 19 May 2010. The ICL’s Response to an Application in a Case was filed 11 May 2010 and seeks a dismissal of the father’s application and costs.
The mother opposes the father’s application and, like the paternal grandfather, does not seek to adduce evidence. Counsel for the mother appeared by telephone link up to the Launceston and Melbourne Registries on 18 May 2010 and in Court, in Hobart, on 19 May 2010.
In view of the non-appearance by the father at court on 19 May 2010, the ICL and the mother initially sought that the father’s application be dealt with in his absence but ultimately sought that it merely be struck out with a right of re-instatement, before me, on adequate notice.
In order to place the father’s application in context, it is necessary to provide a broad and general overview of the recent history of the litigation concerning the children, J (14 years) and H and E (11 years). Mr Walker has been the ICL and Mr Lewis has been counsel for the mother throughout the proceedings.
My first hearing of proceedings involving these children was on 12 March 2009. The father was seeking to establish a shared care parenting arrangement on a week about basis. The mother opposed that arrangement and relied upon a s.11F parent and child assessment which described the father’s pressure on the children as emotionally abusive and recommended consideration be given to some respite for the children. The family consultant’s evidence has not been tested in cross examination. By a previous order of Benjamin J the father was required to attend court, in person, but he failed to do so. He filed a request to attend by electronic means too late for the request to be dealt with. He and his lawyer, Charmaine Gibson (who is the current lawyer for the paternal grandparents) appeared by telephone. Part way through the hearing, Ms Gibson announced that the father had left the building and wished to abandon all applications before the Court.
Injunctions to which powers of arrest were attached were made precluding the father approaching the children or attending at or within 200 metres of their school or the mother’s home. Any time the father had with the children was suspended until further order. The injunctions were based, in part, on an apprehension that the father might try to take possession of the children contrary to orders of the Court. By operation of the orders, the father had no entitlement to spend time or speak with the children. He had liberty to apply to set aside the order or as he may be advised but has never made any such application. My reasons for decision are published at Sawer & Hugh [2009] FamCA 496.
On 30 March 2009 the paternal grandparents made application to spend time with the children for one weekend a month from after school Friday to the commencement of school on Monday, telephone communication each second day and that the mother pay the paternal grandparents’ costs of and incidental to the application. That is still the paternal grandparents’ application.
Orders providing for the children to spend time with the grandparents were made on 24 April 2009 and 7 May 2009. If the father was to be present during any time spent, as a guest of his parents, his interaction with the children was required to be supervised and he was not permitted to participate in the transport of the children back to their mother’s home.
On 4 June 2009 a recovery order was made against the paternal grandparents requiring that they return J to the mother. My reasons for decision are published at Sawer & Hugh (No. 3) [2009] FamCA 516.
On 13 June 2009 J ran away again and stayed with the father and his partner, Ms B. The matter was brought on for mention before me on 18 June 2009 on the application of the ICL for permission to publish earlier reasons to the proper officers of S School (attended by J) and L School (attended by the twins). It was noted that the ICL has stated that pursuant to s.67ZA he will make a notification to the Department of Health and Human Services (Tasmania) that the child J is exposed or subjected or is at risk of being exposed or subjected to behaviour which psychologically harms him.
No parenting orders have been made formalising J’s residence within the father’s home.
On 28 September 2009 Department of Health and Human Services (Tasmania) wrote a letter[2] confirming that they had assessed J, found his living conditions adequate and recommended that arrangements be made as soon as possible for J to spend time with his siblings. It was suggested that J would suffer emotional harm by being deprived of his sister’s company and visa versa. That evidence has not been tested.
[2] Annexure “B” to father’s affidavit sworn 15 April 2010.
The paternal grandparents left Tasmania, on extended holiday, over winter. Since there return no orders have been made implementing any regular time between them and the twin girls and the twins and their brother. A final hearing of their application was to take place, in Hobart, in the week commencing 15 March 2010, estimated to take four days.
On 20 January 2010 the mother filed an application alleging 16 counts of contravention of orders by the father. The father was represented by
Mr Dixon SC for the first two days of the hearing. The mother was cross-examined at some length. The father admitted 11 counts of the contravention and the rest were withdrawn. The father was not cross-examined. When I was ready to deliver judgment on 15 March 2010, it was discovered that the father had left court without leave of his counsel and, most particularly, without my leave. At that stage, the father was awaiting a decision on sentencing or, as known in the legislation as amended, consequential orders. The matter was adjourned to 9.00am the next day when it was estimated to take an hour. The paternal grandparents’ application remained listed at 10.00a.m and the evidence of a psychiatrist, Dr S, and a school teacher was to be interposed.
The father did not attend Court on 16 March 2010 either. Mr Dixon SC advised the Court that the father “had a bad night” and was recovering from injuries which he had sustained on Sunday 14 March 2010 when he participated … crashed his car head-on into a brick wall. It was indicated that the father would likely to able to get medical attention that day and to attend Court on 17 March 2010. I adjourned the hearing to 17 March 2010, ordered that the father provide evidence by an appropriately qualified person of his incapacity to attend court on 16 March 2010, issued a warrant for his arrest and stayed that warrant until 10 a.m. the following day. Senior Counsel for the father withdrew as counsel for the father.
The Court heard evidence in the paternal grandparents’ case for the balance of 16 March, 2010, principally from Dr S who had examined the father in 2005. Dr S was treated as a court witness and cross examined by counsel for the mother, grandparents and by the ICL. The evidence was directed to what problems the father’s behaviour presents to the mother, children and himself, to what extent (if any) the children could be protected from inappropriate behaviours and how the grandparents would be able to contain the father.
Very recently, the ICL has alleged that on 16 March 2010, when the father was allegedly too ill to attend court and requiring of medical treatment, the father attended a school swimming carnival held away from the school grounds at which one of the twins was competing. The father was observed sitting on the bank speaking to the child until a teacher directed the child to go elsewhere. The evidence in this respect has not been tested but I am informed that it can be tested during next week’s hearing.
On 17 March 2010 the father attended court. He had no medical evidence directed to his capacity to attend the previous day. He brought an x-ray and a receipt from a psychologist. I made the consequential orders and reasons for that decision appear as Hugh & Sawer [2010] FamCA 290. Orders were also made discharging the previous orders which provided that the mother have sole parental responsibility of J and that J reside with the mother. Injunctions were expanded to cover the father’s partner, Ms B, and the father and to preclude them from attending at the girls’ school functions held off school premises and sporting events. The attitude of the father and, through him, Ms B was that if such behaviour was not restrained it was permissible and the only opportunity for the girls to see either of them and their daughter, C. Ms B had been given little notice of the application against herself and asked for time to consider her position. I adjourned the hearing to this month and made holding orders in the meantime. My reasons for so doing are included in Hugh & Sawer (supra).
On 14 April 2010 the father filed a notice of appeal against the Orders of
17 March 2010. The proceeding number is SA24 of 2010. On 16 April 2010 the father filed an Application in a Case seeling various orders including a stay of the order under appeal. The hearing was conducted, over 22 and 23 April 2010, via video link between the Melbourne and Launceston registries. I stayed the enforcement of costs and the fine but otherwise dismissed the father’s application. Paragraph 39 of my reasons for decision describes information provided by the Appeals Registrar about the timelines for the father’s appeal. The reasons are published as Sawer & Hugh [2010] FamCA 362. I noted that at the hearing for the stay, the father did not indicate that he would participate in the proceedings set down for hearing next week. That would include, to oppose the continuation of the injunctions against himself and his partner, Ms B, or to make any application or be a witness in his parents’ application. The father was ordered to pay costs.
On 29 April 2010 the father filed an application seeking, inter alia, that I excuse myself from hearing the matter at first instance (“the disqualification application”). The father alleged bias.
On 5 May 2010 the father filed this application seeking, amongst other things, the removal of the ICL.
The disqualification application was heard on 12 May 2010 by video-link between the Melbourne and Launceston Registries. I dismissed the father’s application and ordered that he pay costs. After reserving my decision in relation to the disqualification application, I made directions for the hearing of this application. My reasons for decision on the father’s application filed 29 April 2010 were delivered on 17 May 2010 and are published at Sawer & Hugh (No. 2) [2010] FamCA 373. The parties had already been notified that the hearing of substantive matters about the children had been moved from the week of 17 May to the week of 24 May 2010. There were no court rooms available in Launceston on days convenient to the Court and to the parties but a conference room could be made available which, I was informed, could accommodate the video conferencing equipment. No party objected. That hearing was to take place at 9.00am on Tuesday 18 May 2010.
On Thursday 13 May 2010 the ICL filed a request to appear by electronic means. The father opposed the request. I heard the matter on 17 May 2010, by telephone, by which time counsel for the mother requested to be heard by telephone on 18 May 2010.
The basis of the requests was twofold. First, travelling to Launceston would involve additional costs of $450 for the ICL and $500 for the mother. Second, both practitioners said that the Launceston Registry was not a sufficiently secure venue and they each were concerned about being required to appear with the father within the confines of a conference room. The basis of the security concerns was, in part, an incident which had occurred between the father and the ICL after the Court rose on 12 May 2010. The ICL informs me that he was assaulted by the father and the father informs me that he was assaulted by the ICL. I did not require the father or the ICL to respond to the assault allegation without first having had an opportunity to consider self-incrimination. In the course of submissions, the father was abusive but I permitted his shouted insults to go unremarked in the interests of advancing the matter. I ordered that the ICL could appear by telephone. The father was required to serve any extra material upon which he proposed to rely by 5.30pm and reserved any objections of the other parties until after they had seen the material. I also permitted counsel for the mother to appear by telephone.
At the start of the hearing on 18 May 2010, father informed the Court that his compliance with my order of 17 May 2010, that the affidavit to be filed by him before 5.30pm on the same day, was not possible as the Court was still sitting at this time. I accept this reason for such non-compliance. However, Mr Walker did not receive the affidavit until immediately prior to the hearing. The late receipt of the father’s affidavit by the ICL and respondent in the Application in a Case, affects the readiness of the matter to proceed. This is due to allegations of fact made by the father in this affidavit to which Mr Walker must be afforded an opportunity to respond. I was minded to adjourn the hearing to today to allow for an affidavit in response to be filed by the ICL and for me to deliver judgment before next week.
One allegation deposed to by the father is that the ICL has prepared a list of all of the father’s faults and the father puts the ICL to proof of all the matters described therein. It is actually an aide memoire[3] which the father had forgotten to bring to Court. I told the father that I would take him through the document for the purpose of having him specify matters denied and agreed for the further purpose of limiting the matters for which the ICL would have to provide evidence within the short period available to him to prepare evidence in response. There was then an incident, witnessed by me by video transmission, which was touched off by nothing extra to the Court reading a portion of the aide memoire to the father which outlined in the briefest terms incidents from his past including, in 2004, when he self-harmed by shooting himself in the stomach and on another occasion took an overdose of medication in the foyer of the Family Court and was taken to hospital by ambulance.
[3] Exhibit “ICL2” on 12 May 2010
The father was unable to maintain his composure at the mere mention of these events. His behaviour descended from discomfiture to what appeared to be anguish to, finally, violence. When I looked up from reading, the father started to bellow and shake his fists near his head. He then became more violent. He used threatening gestures including simulating blows with a clear drinking glass in his hand and finally hurled the drinking glass to the floor. I apprehended risks to those in his proximity and adjourned temporarily for the father to compose himself. As I rose, I observed the father, on mute, to be pointing at the camera in the vicinity of the court officer.
The incident involved a risk to the physical safety and appropriate working conditions of the court officer and potentially to the other occupants in the room although the only other occupants were the paternal grandfather who did not intervene and the security guard remained seated in the background.
I am mindful that the incident occurred less than 24 hours after counsel for the mother and the ICL both asserted that a conference room was not a safe environment but the father nonetheless opposed (unsuccessfully) either appearing by telephone. I now consider the risk to Court personnel and to others as ongoing in the context of proceedings which involve the children J and the twins, E and H. This is regardless of whether the father seeks orders about the children. At the moment, the father seeks no parenting orders in relation to any child and seeks that the ICL be removed from the proceedings between the paternal grandparents and the mother (in which he has not otherwise participated) as well as injunctive relief relating to himself and his partner, Ms B, in respect of which the father has said he will only participate if heard by another judge.
I further consider that ongoing hearings concerning the children, or any of them, should be conducted at a location which offers the best facilities to cope with any contingencies which may arise from the father’s behaviour. As best I can ascertain from Court administration, that is the Hobart Registry. A conference room is not, in my view, an appropriate location vis-à-vis any appearance by the father.
Late yesterday afternoon the Court received a letter from the father’s partner, Ms B[4], which omitting formal and irrelevant parts read as follows:-
[4] Exhibit “C1”
Dear Mesdames,
RE: LNC 511 OF 2008 [SAWER] –V- [HUGH]
On behalf of [the father] I enclose herewith copy medical certificate indicating [the father] is unfit to attend court until June.
[The father] has indicated he will not be attending the court in Hobart tomorrow at 2.00pm.
He tells me he has been advised by the Launceston Registry that there is a conference room available in Launceston.
Contrary to the medical certificate, [the father] has indicated he will appear if the matter is listed at Launceston.
As a matter of urgency please confirm this is acceptable by sending an email to […]@[…]
I have forwarded a copy of this correspondence together with a copy of the medical certificate to the solicitors for the mother and the ICL.
The enclosed medical certificate read as follows:-
This is to certify that I have examined:
Mr. [Sawer] of C/- [address]
In my opinion, he was/will be unfit for any court appearance 18/5/2010 to 31/5/2010 inclusive.
Signed: Dr [I]
The father represents himself. He states repeatedly in Court that it is erroneous to assume that his partner, Ms B, who is a lawyer, assists him in any way in the proceedings concerning J and E and H. The address of her legal firm is the same as the father’s residence. It is his address for service. His email address is a sub-address of the firm. On 12 May 2010, the father took exception to my suggestion that he access a copy of the Family Law Rules either from Ms B’s library or on-line. The above letter was on her firm letterhead. However, the letter does not make clear in what capacity Ms B purports to correspond with the Court. That is, does she do so as the father’s de facto partner and mother of their child who she says should be able to spend time with the twins or in her capacity as his solicitor? My order of March 2010 contemplated an application being made for the appointment of a litigation guardian for the father. I am not aware of any such application having been made.
The lack of clarity which attends Ms B’s communication is unbecoming of a solicitor and confusing for all concerned. For instance, should the Court and the other parties proceed on the basis that she has authority to correspond for the father and make proposals on his behalf when the father has been at pains to say that she is not assisting him in any way? It is not a difficult task to go onto the Court record for a party by filing a notice of change of address for service electronically. Ms B is a member of a profession and is required to uphold certain standards. One such standard is to identify when she acts for someone in a professional capacity rather than as a life partner or the primary carer of the child, C. When I say that it is confusing for all concerned, I am mindful that the lack of clarity in her role could leave the father and, through him, J, most confused of all.
On balance, I was prepared to proceed on the basis that the communication from Ms B is, indeed, authorised by the father. I do so on the basis that it is on letterhead, that he resides at the address of the firm and that it contains a request for a reply to the father’s email address at her firm although this, in itself is equivocal because, if she acts for him or is assisting him, the reply should be directed to her.
At my direction, and bearing in mind the little time remaining for any determination of the father’s application to remove the ICL prior to the re-commencement of the matter next week, the Court responded to all parties in the following terms[5]:-
I acknowledge receipt of facsimile from Ms [B] in the above matter. I attach a copy for ease of reference.
The matter will proceed on 19 May in Hobart at 2.00 pm.
Launceston is not an appropriate premises due to security concerns arising out of Mr [Sawer’s] outburst today and the potential risk to Court staff in a confined space such as the conference room.
In the event that there is no appearance by or on behalf of Mr [Sawer] on 19 May in Hobart the matter may proceed in his absence.
If the father wishes to rely on evidence by a medical practitioner, the medical practitioner must be available for cross-examination.
[5] Exhibit “C2”
Correspondence from the Launceston registry was handed to me during the hearing on 19 May 2010[6]. There is an email, apparently sent at 8.51 a.m. from the father to Registry Services Team Leader in the Launceston Registry asking her “to explore the possibility of organising telephone link up formally for the hearing today at 2.PM” The father is fully aware of the correct procedure for a request to attend by electronic means. It was entirely inappropriate of him to try to contact the Court without notice to other parties to the proceedings. In Buljubasic and Buljubasic (1999) FLC ¶92-865, the Full Court observed that it is ordinarily improper for litigants to seek to communicate with a trial judge by sending a facsimile or other communication to a Court or a Registrar. Finn J commented:-
49.I would also want to endorse strongly the comments that have been made by the presiding Judge regarding the importance of adherence to the traditional practice that those who seek from the court an adjournment of their matter, should appear themselves, or by legal representative, to seek the adjournment. I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the court for the purpose of seeking an adjournment.
[6] Exhibit “C4”
I, with respect, agree with those comments. They are equally applicable to a request to be heard by telephone. Further the father’s message reads:-
“I also reject their concerns as, to security staff, I also reject there references to the Launceston premises, if it is not an appropriate premises if it is, it should be closed down. And I’m well aware that they have had three or four guards in the court room previously for other participants. Also it is my belief that on Thursday the main court room is available.
It appears that, at 10.44 a.m., the Court responded to the father that the arrangements notified previously would apply and that the proceedings would be conducted in Hobart by video-link to Melbourne. Further copies of the letters of previous day were attached.[7]
[7] Exhibit “C4”
By email apparently sent at 11.00 a.m. the father asked the same member of Court staff “exactly when were the other parties notified of the date and time in Hobart, and was the communication to ensure they are available.” To which the Registry Services Team Leader responded, apparently at 12.10 p.m. “My understanding is that all parties were sent the facsimile notification at the same time, approximately 2.00pm 18/5/2010.”
As there was no appearance by or on behalf of the father, I took submissions and considered whether to hear the father’s application in his absence or to strike it out which would, effectively be, to adjourn it until it is appropriate to bring it back on for hearing. I have regard in general terms to the basis of the father’s application, which is untested, and the prejudice to the parties. The overarching and paramount consideration is the best interests of J, H and E.
The father’s allegations
The father relies on his affidavit filed 5 May 2010 in which he makes various allegations as to the manner in which Mr Walker has conducted the proceedings as Independent Children’s Lawyer.
The father claims that the ICL has misled the Court in relation to costs he claimed on 24 April 2010. The father claims that the ICL could not explain why the brief fee to appear on 23 April 2010 was reduced from $1500.00 to $600.00, as demonstrated in an undated Costs Notice given to the father, Annexure “A” to the affidavit. The father claims that if the ICL had been instructed by the Legal Aid Commission to recover costs, “he would not be at liberty to change or halve that amount, without consulting the Legal Aid Commission”. The father further claims that the ICL did not deny his allegation when put to him. It is unclear as to when this occurred.
The father criticises the ICL’s conduct in the stay proceedings on 22 and 23 April 2010 in that the ICL did not file responding material and only made “substantial” submissions in his application for costs.
The father refers to two contraventions of court orders by Mr Walker, including:
a)Orders made on 22 February 2010; and
b)Orders made on 17 March 2010, namely Orders 15(b), 15(c) and 16.
As to the Orders made by me on 22 February 2010, the father alleges that Mr Walker contravened the orders by failing to “provide the father his chronology and preliminary views” until 20 April 2010. Order 7 made on 22 February 2010 provides:
7.That by 4.00 pm on Thursday 11 March 2010 the independent children’s lawyer prepare a chronology for the attention of all parties and transmit same to my Associate, Ms […], email […], together with a minute of orders which, in his preliminary view, ought be made in the parenting proceedings.
As to the Orders made by me on 17 March 2010, the father alleges that the ICL “remains in contravention” of the orders referred to in paragraph 53(b) above. Those orders are as follows:
15.That the independent children’s lawyer be responsible for service of this Order on the Proper Officer of:-
…
b) The V Basketball Club; and
c)Any contact centre in which the parents apply to participate.
16.That the independent children’s lawyer do all acts and things necessary to inform the father and Ms B of the roster for the girls participation in V Basketball Club activities.
The father provides no evidence to support the alleged contravention.
The father further claims that the ICL:
“has not responded to at least 3 verbal requests by my son [J] (all made with the assistance of his deputy principal at school or his house head.) and written requests by email”.
In support of this allegation, the father provides three documents, one being an email from Ms Z to the ICL dated 23 April 2009, marked as Annexure “C”. He also provided two letters from J to the ICL dated 29 April 2010 and 23 April 2010, marked as Annexures “D” and “E” respectively.
In respect of the ICL’s conduct in his role, the father alleges that Mr Walker “acts directly against [J’s] wishes”. He also alleges that the ICL has “blatantly lied to the children” and has “acted against the professional advice and recommendations provided to him”. On this issue, the father refers to the Family Report dated 18 February 2010 and, in addition, refers to a report by the Department of Health and Human Services dated 28 September 2009 prepared by Ms GE of the Response Team at Child Protection Services.
The father makes further unsubstantiated allegations in his affidavit as to the manner in which the ICL has participated in the proceedings. He alleges that the ICL “acts against the weight of the evidence” and has misled the Court by “selectively supplying evidence”.
The father also claims that the “incompetence” of the ICL is “epitomised by the fact that he continually tells me that I’m not a party to the proceedings”. In support of the father’s claim, he attaches a letter marked as Annexure “G” dated 28 April 2010 in which the ICL indicates that he attaches Ms VN’s affidavit as a matter of courtesy as the father is not a party to the proceedings.
The father further deposes in his affidavit that the ICL is not acting in the children’s best interests, claiming that the ICL has never “suggested what steps would be needed to be able to reinstate contact” between the father and the twins.
The father also relies on his affidavit sworn 17 May 2010 and served on the parties late on that day for the reasons provided in paragraph 33 above. Within this affidavit the father makes fresh allegations as to the conduct of the ICL in the proceedings and has highlighted to the Court the areas in which this has occurred having reference to the Guidelines for Independent Children’s Lawyers, dated 6 December 2007 issued by National Legal Aid, published by CCH, marked as Annexure “A” (“the Guidelines”). In overview, the affidavit makes repeated reference to Mr Walker’s failure to consider the best interests of the children as the paramount consideration and a general failure of the ICL to execute his role in the proceedings.
The father alleges that the ICL “has failed to follow almost every basic guideline” and has marked on Annexure A where he believes the ICL has “failed”. I do not wish to address each instance where the father has underlined a particular guideline in that publication. However, the father makes specific reference in the affidavit to guidelines 6.6 and 5.2, to which I will refer.
Guideline 6.6 provides for the “Changing, Reviewing or Terminating the Appointment of the ICL”. Relevantly, that guideline provides that the ICL may be discharged if the ICL is of the opinion that their “relationship with the child has broken down irretrievably to the extent that it is not possible to represent his or her best interests”. The father alleges that J’s written requests to the ICL requesting “him to discharge himself”, is evidence of such a breakdown in their relationship.
Guideline 5.2 provides for the “Limitations of the Role of the ICL” and for the father’s purposes relevantly provides that the ICL is not to “become a witness in the proceedings”. The father alleges that the ICL has “filed at least three affidavits”, evidencing a “breach” of his role.
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.
In paragraph 13 of the affidavit filed 5 May 2010, the father refers the Court’s attention to a series of factual allegations involving the children, the mother, the maternal grandmother, the mother’s boyfriend and the ICL. I am not aware of these assertions having previously been in evidence.
By affidavit filed on 19 May 2010 the ICL answers the father’s relevant criticisms (and some of the irrelevant ones). Amongst other things, he deposes that he has attended upon the children but is not convinced that communications which appear to be from J are necessarily what J has said or believes. From an entirely preliminary perspective, the response appears to be measured and comprehensive. I take into account that neither the father nor Mr Walker’s evidence has been tested in cross examination but that is largely, if not entirely, due to the father’s actions and failure to attend court.
I am unable to place any significant weight on the doctor’s certificate to the effect that the father cannot attend Court until June 2010. It is not detailed. The practitioner was not provided for cross examination in spite of notice to the father that, if he sought to rely on the certificate, the maker must be available for cross examination. Moreover, the covering letter from the father’s partner (a lawyer) stated that “contrary to the medical certificate, [the father] has indicated that he will appear if the matter is listed at Launceston.” This statement by the father’s de facto partner who is also a lawyer undermines the very premise of the certificate itself. Furthermore, the father busied himself with various emails to the Court on the day of the hearing requesting that general enquiries be made about telephone links, without any pending request for same, and comments about the adequacy of court resources and what his understanding is as to the availability of certain courtrooms on other days. It is the father’s own behaviour which casts considerable doubt over the accuracy of the practitioner’s certification of the father’s fitness for Court appearances.
I accept the submissions of counsel for the mother and the ICL that the best interests of the children require that the hearings next week proceed. The children require and deserve a determination of the issues before the Court. One counsel suggested, but did not urge upon me the possibility of devoting some part of next week’s sitting to the determination of the application in the hope or expectation that the father may then participate. I am unable to accept that proposition as tenable in any respect.
I cannot be confident that the father will participate in any aspect of next week’s proceedings. The father was avoidant of a hearing on 12 March 2009. On 15 March 2010 his senior counsel said he would not apply for any parenting order other than one which is sought by consent of all parties. Put another way, he will not willingly participate in the Court process. On 16 March 2010 the father failed to appear at court and produced no appropriate evidence of incapacity to do so. Yesterday the father failed to appear in Court.
The father has no application before the Court for parenting orders. His applications are directed to appeals or ancillary matters.
I am satisfied that the best interests of the children require that there be a determination as soon as practicable. There is evidence from all quarters that the current situation is unsatisfactory. The enquiry next week, in the context of the paternal grandparents’ application, will be whether there is a good outcome for the children or, failing that, a less unsatisfactory outcome for them. Given the manner in which the father has conducted litigation in the recent past, it would be irresponsible of me to further interrupt or postpone a judicial determination of the 70NBA application and the paternal grandparents’ application until the father is prepared to participate.
The father seeks an order for alternative dispute resolution. I dealt with an application by him in the same terms on the hearing of his application for disqualification filed 29 April 2010. The relevant paragraphs are 68 to 79 (inclusive) of the decision delivered on 17 May 2010[8]. There is no new circumstance apparent from the father’s evidence in support of this application but, then again, no one has made oral submissions.
[8] Sawer & Hugh (No. 2) [2010] FamCA 373
I am not comfortable in finally determining the father’s application to remove the ICL without having provided him with the opportunity to make submissions. My observation of the father is that his verbal expression is better than his written expression. His submissions may enhance his case.
In all of the circumstances, I will accede to the joint position of the mother and the ICL that the father’s application be struck out with a right of reinstatement into my list for determination on not less than 28 days notice in writing to the other parties. That does not mean a hearing in 28 days. It means a hearing in not less than 28 days, in an orderly manner in which the applicant has a commitment to participate. If the father never applies for re-instatement, no one is any worse off.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 21 May 2010
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