Sawyer & Sawyer
[2015] FamCA 982
•10 November 2015
FAMILY COURT OF AUSTRALIA
| SAWYER & SAWYER | [2015] FamCA 982 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Where final parenting Orders were made by consent in 2012 – Where the father has brought multiple contravention applications against the mother since the final Orders were made – Where the mother filed an Initiating Application seeking to vary the final Orders – Where the father brings an application to have the mother’s Initiating Application summarily dismissed – Whether there has been a change in circumstances such that the mother’s application should be permitted to proceed – application for summary dismissal dismissed. FAMILY LAW – CHILDREN – Orders – Variation – Interim – Where the mother seeks to vary the final parenting Orders – Whether it is in the best interests of the children for the Orders to be varied at an interim hearing – application dismissed. FAMILY LAW – LEGAL PRACTITIONERS – Discharge – Where the father seeks an order that the ICL be discharged – Whether the ICL has been negligent and has demonstrated bias towards the mother – application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks an order that the family report writer be discharged and the report not be relied upon – Where a different report writer had been engaged in the matter and had prepared the three family reports prior to the final consent orders in 2012 – Where the ICL engaged a new family report writer when the matter came back before the Court – Whether the family report writer was negligent – application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings – Where a Judge of the Federal Circuit Court found that the mother contravened final parenting Orders without reasonable excuse – Where the matter was adjourned and subsequently transferred to the Family Court before the consequences of the contravention had been determined – Matter transferred back to the Federal Circuit Court. |
| Family Law Act 1975 (Cth) |
| Bondai v Bretton [2012] FamCA 429 Bondai & Bretton (No. 2) [2010] FamCA 1237 Dean & Susskind [2012] FamCA 897 Kingley & Arndale (No 2) (2010) 255 FLR 326 Lloyd and Lloyd and the Child Representative (2000) FLC 93-045 |
| APPLICANT: | Mr Sawyer |
| RESPONDENT: | Ms Sawyer |
| INDEPENDENT CHILDREN’S LAWYER: | Tracy-Lynne Geysen |
| FILE NUMBER: | BRC | 7102 | of | 2010 |
| DATE DELIVERED: | 10 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 26 October 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
Orders
Noting that the father withdrew his Application in a Case filed 21 October 2015, the father’s application for the mother’s Initiating Application filed 8 October 2014 to be summarily dismissed is dismissed and all other interim applications of the mother and the father are dismissed.
The matter is transferred back to the Federal Circuit for the purposes of Judge Purdon-Sully finalising the Contravention Proceedings that she remains part-heard in and to give further consideration to whether the matter needs to be heard in the Federal Circuit Court or this Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sawyer & Sawyer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7102 of 2010
| Mr Sawyer |
Applicant
And
| Ms Sawyer |
Respondent
REASONS FOR JUDGMENT
On Monday 26 October 2015 this matter was listed in my Judicial Duty List for determination of certain Applications that had been filed in the proceedings in recent months. The litigation between the parents has a considerable history.
The mother and the father separated in 2009. There are three children of their Mr B – two girls who are 14 and 12 years of age and a boy who is 7 years of age.
Unable to reach amicable agreement about post-separation co-parenting, the father commenced proceedings for a parenting order in the Federal Circuit Court in 2010 (when the FCC was still called the Federal Magistrates Court). Property adjustment proceedings were also commenced in that Court.
A final parenting Order was made on 3 November 2011 by Judge Purdon-Sully with the consent of the parents and the Independent Children’s Lawyer, Ms Geysen.
The property adjustment proceedings went to trial in 2012 before Judge Willis. However, before the trial, the father filed contravention proceedings against the mother in respect of the primary parenting Order. They were resolved by compromise with a new final parenting Order being made by Judge Willis by consent on 7 November 2012.
Three family reports had been prepared by Mr B in the proceedings between 2010 and 2012. The final parenting Orders that were made largely reflected Mr B’s recommendations.
Both the 2011 and 2012 Orders provided for equal shared parental responsibility for the three children to be conferred on each of the parents. Essentially, they each provided for the children to live with the mother and to spend substantial and significant time with the father from after school on Wednesday until before school the following Monday every alternate week, and for half of each school holiday. The changes between the first and the second of those Orders reflected the addition of a little more particularity and clarity and provided specific telephone communication provisions for the children and the father. Both Orders provided for overseas travel with the children for both parents, but only to countries that were signatories to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
Unfortunately for this family, the parents have continued to be in high conflict since the 2012 Order. The father has brought more contravention proceedings against the mother. Indeed there does not appear to be dispute that he has brought multiple contravention applications against the mother. He filed one on 5 August 2014 that again brought the matter back before Judge Purdon-Sully. In that Contravention Application he sought orders that included conferral of sole parental responsibility on him. Before that application was heard by her Honour, the mother filed an Initiating Application in October 2014 in which she seeks to vary the existing final parenting Order made in 2012.
In that fresh Application, the mother seeks to have sole parental responsibility conferred upon her and for the children’s time with their father to be changed to commence on Friday after school each alternate week rather than Wednesday after school – a reduction of two days of time with their father each fortnight.
Judge Purdon-Sully heard the father’s contravention application on 23 February this year and found the mother to have contravened the 2012 Order without reasonable excuse. Her Honour decided to adjourn the determination of the consequences for that to a date when she could have assistance from the ICL, who she ordered to be reappointed, and the benefit of a fresh family report.
Ms Geysen became involved in the matter again. She engaged a different Social Worker, Ms C, to provide the fresh family report. It was produced to the parties on 23 July 2015. That day, the father also applied to the Court for an Order that he could take the children on a holiday to Country D in the September school holidays this year. Her Honour made an Order that provided for that. The father also filed an application, before her Honour had determined the consequences of the mother’s contravention, in which he sought to have the mother’s October 2014 Initiating Application summarily dismissed, relying on the principles such as those pronounced by the Full Court in Rice and Asplund (1979) FLC 90-725. He also sought orders for the ICL to be discharged and for Ms C to be discharged as report writer and her report not relied upon.
It seems likely, although I am unable to definitely determine the point, that the father made his application, or at least prepared for it to be made, before he had even had the opportunity to have read Ms C’s report that was only provided to the parents on the day of 23 July 2015 at Court.
That same day, Judge Purdon-Sully then transferred the proceedings to this Court. The father’s application for summary dismissal and the discharge of the ICL and Ms C were listed for hearing by me in my Duty List of 26 October. Even though he was seeking summary dismissal of the mother’s proceedings in which she seeks changes to the existing final parenting order, the father had filed another Application in a Case seeking an Order from this Court that he be able to take the children on a holiday to Country E next year. That was listed to be heard by me on that same day.
At the same time, the mother, whilst opposing the father’s summary dismissal application, sought an interim variation to the existing final parenting Order so that their 14 year old daughter only has to spend time with and communicate with her father at her initiation.
Both parents were unrepresented at the hearing before me. As is so often the case when parties are unrepresented in this Court, the intensity of their conflict with each other was clearly palpable. The father, who is a former police officer and now a security contractor and commercial agent, represented himself with confidence and apparent total conviction in the righteousness of his position. The mother, who is a hairdresser, was far less able to represent herself adequately. Nevertheless, she was focussed on conveying to the Court her perceptions of the father’s inadequacies as a parent.
The ICL was represented before me by very experienced family law counsel. The assistance the Court obtains from experienced counsel who, to their credit, appear at Legal Aid payment rates in high conflict parenting cases where both parents are unrepresented cannot be overstated.
To his credit, the father handed up written submissions to the Court. His principle argument was simple. He submitted that the mother had failed to identify any “significant material change in circumstances” since the final parenting Order was made other than just “a mere difference of opinion with respect to parenting style and duties”. Although he referred to the Full Court’s decision in Rice and Asplund in support of his submission that the mother’s application should be summarily dismissed, he really did not discuss in any more detail the principles emerging from that case and subsequent Full Court decisions on the point.
The Principles
There appears to be little room for doubt that the Court has the discretion to summarily dismiss parenting proceedings where such proceedings as between the same parents have previously been finally determined, if the Court is satisfied that proceeding to another hearing would itself “be demonstrably contrary to the best interests” of the subject child or children (see Rice and Asplund; SPS and PLS (2008) FLC 93-363; Miller & Harrington (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR 1 and Reid & Lynch (2010) FLC 93-448).
In their joint reasons for judgment in Marsden v Winch, Bryant CJ, Finn and Cronin JJ said at [50], the decision whether to dismiss parenting proceedings or to embark on another hearing is “a decision to be made in each particular case” and is to be made by looking at:
(i)The past circumstances, including the reasons for the decision and the evidence upon which it was based;
(ii)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(iii)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
As I have said in a previous judgment[1], although their Honours did not expressly refer to any need to find changed circumstances, I accept that the requirement to consider the past circumstances as well as the question of whether there is a likelihood of orders being varied in a significant way as a result of a new hearing clearly includes the need, authoritatively established before the Marsden v Winch decision and reaffirmed in Reid v Lynch, to be satisfied that there is some changed circumstance or some new factor arising or some factor which was not disclosed at the previous hearing that would, likely, support a variation of those orders in a way that would benefit the children more than any disruption caused by re-litigation.
[1] Bondai v Bretton [2012] FamCA 429
My Application of the Principles
I do not have the benefit of written reasons supporting either final parenting Order made in 2011 or 2012, as both were made with the consent of the parents and the ICL without going to trials. Neither do I have the benefit of the evidence upon which the Orders were based, save for there being extracts from Mr B’s three family reports in Ms C’s report that was read and relied upon by the ICL at the hearing before me.
With respect to the mother, I do not have the benefit of any submissions of substance from her, save that she was able to articulate the essential point that the evidence establishes that her children’s views have changed fairly dramatically in the years since the 2011 and 2012 final parenting Orders were made by consent.
I must say that the father’s case, though well argued, might have been far more persuasive had he mounted it in October last year, immediately after the mother filed her Initiating Application. It would then have just been the mother’s rather poorly drafted affidavit evidence to which the Court would have to have looked to determine if the matter should again proceed, taking up the Court’s increasingly precious time.
However, the father did not make his application until after the ICL had been reappointed and the family had again been interviewed by a very experienced family report writer. By that time, the very lengthy, detailed family report was prepared. The views of the children were elicited, considered, discussed and reported upon by the family report writer in that process.
At the hearing of the father’s application before me, the ICL relied upon that report in support of a submission that the father’s summary dismissal application should fail and that the best interests of these three children require the mother’s application for changes to the final Order to proceed. In addition, counsel for the ICL pointed out that the father himself seeks an order for sole parental responsibility, thereby exposing his own views that circumstances must have changed to the extent that he considers there is justifications for such a significant change being made.
Whilst that remains the father’s position in the contravention proceedings yet to be finalised by Judge Purdon-Sully, there is some merit in that part of the submission of counsel for the ICL. Indeed, apparently recognising that, the father quickly told the Court that he would not seek sole parental responsibility if that was an obstacle to the summary dismissal of the mother’s application.
In similar fashion, when I pointed out to the father that his other application for an order that permitted him to take the children on a holiday to a country that is not a signatory to the Hague Convention also reflects a view held by him that circumstances must have changed to the extent that yet another change to the final Order is justified, he also quickly told the Court that he did not pursue that either if it was an obstacle to the summary dismissal of the mother’s application.
Notwithstanding the father’s willingness to move away from those positions, I am quite satisfied, on the evidence of Ms C, that circumstances have changed such that the mother’s application should be permitted to proceed. Not only has the passage of time simply led to the three subject children being three years older than they were when the 2012 final Order was made with the consent of the parties, a matter of significance when one considers the eldest child has moved from an 11 year old to a 14 year old in that time and the youngest has moved from a 4 year old to a 7 year old, but also there is evidence that the three children all express the view that they want to spend less time in their father’s regular care, with the 14 year old expressly saying that she would prefer to only spend time and communicate with her father at her own discretion – a position that Ms C ultimately accepts and adopts as a recommended change to the existing parenting regime.
In fairness to the father, he clearly contends that the children are parroting the unmistakeable influence of the mother and that such views should carry little weight. Ms C expresses an opinion that potentially gives support to the factual basis for the father’s submission, but critically she does not support the submission that those views should be given no weight. She points out the reality of the children’s ages, level of maturity, and their own perceptions in support of the opinion that significant weight should be accorded to them, particularly in respect to the views of the 14 year old.
In my judgment, the independent, expert reporting of the children’s expressed views that their time with their father should be reduced is enough for the mother’s application to proceed. But, again in fairness to the father, a further part of his case must be considered at this point, namely his argument that Ms C’s report should “have no weight placed upon it” at all, as it is axiomatic that if no weight is placed upon it, none of its contents and none of Ms C’s opinions can be relied upon to determine that the mother’s application for changes to the primary parenting Order should proceed.
In his written submissions, the father pointed to his affidavit filed by leave on 23 July 2015, in particular paragraphs 21 – 28, as supporting his argument that effectively Ms C’s conduct surrounding the family report interviews demonstrated incompetence and “significant failings”, leaving it for the Court to “make its own decision based on the evidence [contained therein]”.
Paragraph 21 of the father’s affidavit is argument not evidence. In that paragraph, the father argues that because Mr B had previously written reports he should have remained in the matter and that a new report writer should not have been brought in.
The difficulty with that argument for the father is that it should have been made to the Court when the father knew of the proposed change and before the parties attended the interviews with Ms C. Although there is no rule or principle preventing an ICL seeking to engage a different family report writer from one previously used in circumstances such as this, it seems to me at least that the Court might be able to be persuaded into making an Order that a previous report writer be reengaged instead of a new one, for a whole lot of reasons. However, when an ICL engages a different independent expert report writer, for whatever reason, and the family goes along and attends upon the interviews, it is, in my view, too late for a party to argue that the writer’s report should not be relied upon because a different report writer had been previously involved and should have been reengaged. An application on that ground, after the fact, simply gives rise to a perception that the parent who makes the application just did not like the new report writer as much as they liked the earlier one. That is not a good enough ground to support an argument that no weight be given to the report or that the new report writer be discharged.
In paragraphs 22 – 23 of his affidavit, the father pointed out that Ms C had told him when she interviewed him that she had not read any of the material that he had provided prior to the interviews. In Ms C’s report she sets out an email that she says she received from the father a couple of days after the interviews in which he actually points out that Ms C said she had not read any of “our materials” prior to conducting her interviews with the children. I infer from that Ms C told him she had not read any of the material provided by the mother or the father, not just that provided by him.
The father says in his affidavit that he was troubled by this as this meant that Ms C could not have interviewed the children on anything he had raised in his affidavit material and would not be able to interview them on anything he raised in his interview with her (his individual interview being after the interviews of the children). The father says he raised this concern with Ms C during his interview by her and she told him that she could, if she considered it appropriate, arrange further interviews on a later date.
The ICL swore an affidavit that was filed and relied upon by her at the hearing before me. She deposed to having an awareness that it is Ms C’s standard practice, by choice, not to read the material provided by the parties until after she has interviewed them. Indeed, in that respect, Ms C says in her report that she read and reread the material provided to her by the parties before finalising her report.
The father says in his affidavit that he told Ms C of significant incidents between the mother and the children, including one where the mother is said to have threatened to kill herself in front of the children. He says that Ms C did not seem to care about anything that he raised. He says that he did send Ms C an email asking her when she intended questioning the children about the incident he had raised with her and he said that he is aware that Ms C never re-interviewed the mother or the children about any of the specific matters he had raised.
The father submitted, relying on that evidence, that Ms C “was substantially negligent” in not reading any of the materials he provided before conducting her interviews with the mother and the children as she was not able to interview the mother “objectively” or examine any of the mother’s allegations as against information provided by him in her interview with him or in his written material.
As was submitted for the ICL, the manner in which an independent social worker retained to provide a family report chooses to conduct interviews with family members and the practices they adopt in respect of how and when they read material provided to them are matters of their own professional choosing. Simply because a parent is unhappy with the procedure that is adopted by the report writer does not justify disqualification of a family report writer or a determination that no weight can be given to the opinions that they express in the conclusions of their report. If it did, every single family report that is prepared in parenting cases in the courts would be susceptible to being made worthless on the simple objection of the parent who is unhappy with the report writer’s opinions.
Of course though, if a parent who has participated in the processes involved in the preparation of a family report is unhappy with any aspect of the process, he or she is perfectly entitled to raise that with the report writer, the ICL and, ultimately, this Court. At a hearing where the report is relied upon and cross-examination is permitted, the parent can, of course, cross-examine the report writer about process and content. The parent is also absolutely entitled to make submissions going to the issue of the weight to be given to the opinions of the expert report writer having regard to matters of process, content and opinions expressed in the report writing. That is what the father is doing.
I take into account the fact that Ms C had not read any of the material provided to her by the mother and the father before she interviewed them or the children. I take into account the fact that Ms C had not interviewed the father either before she interviewed the children. I consider those matters when I consider her evidence about the views expressed by the children. I am conscious that Ms C has not been cross-examined on her report by the father, or, indeed, the other two parties. That process might elicit more evidence that would impact upon the weight to be given to Ms C’s opinions expressed in the report. However, it is Ms C’s reporting of the fact of the children’s expressed views about time with their mother, her discussion of that and the opinion she arrives at based on her training, skill and experience, that is, in my view, influential at this point. Alleged deficiencies in the procedure, as perceived by the father, with respect, do not persuade me that absolutely no weight or regard should be given to Ms C’s report.
The father argues that Ms C failed to place any weight on the material he provided, either written or oral. He argues that Ms C failed to identify that the children were “substantially counselled by the mother with respect to their responses during their interview”.
With respect to the father, Ms C’s report contains many paragraphs of information provided by the father, orally and in his affidavits, under headings such as “[the father’s] Views about His Relationship with [the mother]”, “[the father’s] views about post separation”. The report also contains detailed reference to and extracts from each of Mr B’s reports that include information provided by the father to Mr B. Ms C’s report also contains 30 paragraphs of ‘evaluation’ in which she sets out her consideration of the material she has had access to, her observations and the formation of her opinions.
In paragraph 238, Ms C openly discusses her opinion that the mother “has inappropriately involved [the girls] in the current court proceedings” and that “[t]here is no doubt that [the girls] dialogue and views have been strongly influenced by [the mother]”. Although it seems that there is a word or some words missing from the last sentence in that paragraph, I am satisfied that Ms C appears to go as far as acknowledging that the girls “parrot[s] their mother’s views and perspective”.
In the light of that content, I respectfully cannot accept the father’s submission that Ms C failed to identify that the girls were “substantially counselled” by their mother.
Finally on this point, the father pointed out that Ms C had listened to a recording and read transcript said to be of that recorded material that were provided to her by the ICL in advance. I understand, without having read the transcript or heard the recording, that it purportedly relates to a 2014 day when the father, with the other two children in his car, went to the home of a friend of the parents’ eldest daughter to collect his daughter from there when she, according to the father at least, had truanted from a school sports day. It is asserted that the father, standing outside the house, loudly directed his daughter to come out of the house and to go with him. It is asserted the child recorded the exchange by audio recording on her mobile telephone and later provided it to her mother who put it into evidence in the proceedings.
The mother sought to tender the transcript of it into evidence before me. The father told the Court that he has never been served with or given a copy of the audio recording or the transcript. He told the Court he has not heard it or read the transcript. I refused the mother leave to adduce it into evidence at the hearing and informed her that she should give the father an opportunity to listen to it sometime.
The father argues its inadmissibility as evidence. That is a matter now to be decided on another day, although I struggle to appreciate how the father might keep such a recording out of evidence. However, Ms C apparently listened to it and read the transcript. The father argues that as he has not heard it or read the transcript and as its admissibility in evidence is still in doubt that Ms C’s report is now “significantly tainted and no weight can be placed upon it”.
Ms C describes some of what she heard on the recording. Indeed, she particularly refers to things she heard the father say in the recording. She provides opinion about it.
Although, the recording was not in evidence before me and its admissibility as evidence in the Court is questioned by the father at this stage, I am not satisfied that “taints” Ms C’s report such that it must be excluded with no reliance being placed on it.
The father has clearly been aware of the existence of this recording for some time. He could have taken steps to obtain a copy of it or listen to it before now, rather than just sit back and continue to assert “it has never been properly served on me”. If he disagreed with any aspect of Ms C’s description of what it audibly depicts, he could have made that clear in affidavit or by adducing it into evidence himself and seeking to have it played so that the Court could make up its own mind on the accuracy of Ms C’s description and opinions. That Ms C chose to listen to it and the father has not does not cause Ms C’s report to be “tainted” in my view.
If the audio recording is tendered into evidence at some stage in the future and the father maintains an objection to its admissibility and is successful in respect of that objection, the weight that could be given to the things Ms C says about the audio recording she heard could very well be impacted upon at that time. I do not consider that the report should be disregarded at this point in the proceedings because the father argues that the audio recording is not admissible as evidence itself.
As is now clear, I reject the father’s arguments that Ms C’s report should attract no weight whatsoever, or, more particularly, that her reporting of the children’s expressed views and her opinions about them should attract no weight. Accordingly, my initial view that such evidence alone would be enough to persuade me that the mother’s application should not be summarily dismissed remains my view.
In any event, if I am wrong about that and the report was completely disregarded, the undisputed fact that the father has brought multiple contravention applications against the mother over the last few years, coupled with Judge Purdon-Sully’s findings that the mother has contravened the primary Order without reasonable excuse and her Honour’s clear determination that this matter is now so complex that it required transfer to this Court, also gives me cause to consider that it is appropriate that the parenting proceedings freshly started by the mother be permitted to continue.
I will not summarily dismiss them as sought by the father.
The Application to discharge the ICL
The father submitted that the ICL should be immediately dismissed because she has been negligent and has demonstrated bias towards the mother.
I have discussed the principles applicable to such an application previously in Dean & Susskind [2012] FamCA 897. There I said:
The principles applicable to the manner in which an ICL is to discharge her or his role in Family Law Act parenting proceedings have been extensively considered. So too, have the principles applicable to the question of determining an application to remove and replace an ICL from that role.[2]
[2]See the discussion by Murphy J of the authorities and the principles in Knibbs and Knibbs [2009] FamCA 840 at [33] – [61] and also the discussion by O’Reilly J on similar matters in Kingley & Arndale (No 2) (2010) 255 FLR 326, 322-334 at [26] –[35] and Bondai & Bretton (No 2) [2010] FamCA 1237 at [43]
The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.
I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.
In my view, the words of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 are apposite.[3] His Honour said:
[3]These words were also referred to by Murphy J and O’Reilly J in the passages just referred to
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] 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 [ICL] to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean 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 [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.
His Honour also went on to finish that passage with the following words:
In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative.
Murphy J in Knibbs said that he did not necessarily agree with that last expression of opinion. His Honour did not elaborate further in that respect. O’Reilly J in Bondai and Bretton (No 2) also expressed disagreement with that opinion. In particular though, her Honour went on to express the view that not only in cases of actual impartiality of an ICL but also in cases of perceived or apprehended impartiality of an ICL should consideration be given to discharging that ICL. Her Honour, comparing the principles that should apply to those principles as apply to the consideration of the question of whether a judge has demonstrated actual or apprehended bias, went on to say:
It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial.
With respect to her Honour, I am not prepared to say that I agree that apprehended impartiality, objectively assessed, is sufficient to give rise to a discharge of an ICL. I say this because, as Murphy J pointed out in Knibbs at [43]-[45], there will be times when the ICL, acting completely within the bounds of his or her duty and in accordance with their independent, professional opinion, as to what is in the best interests of the children in the case, will say and do things that might very well have the appearance of partiality even, perhaps, to the objective bystander. The ICL’s duty and obligations do not require, again as Murphy J said in Knibbs at [49], the ICL to act as merely “a benign or ambivalent mouthpiece for competing evidence.” It is not uncommon for the ICL to make or cause submissions to be made that are completely at odds with the position adopted by one parent and completely consistent with the position adopted by the other parent. The objective bystander might look to that and reasonably consider that the ICL appears to be partial towards one party’s position rather than the other. That does not mean though that the ICL should, on the application of an unhappy parent with whom the ICL is at odds, be discharged or removed from the case.
It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal.
Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case.
Finally, before I turn to consideration of the evidence in this case in the light of these principles, I also acknowledge that I accept as correct the submission made by counsel for the ICL that where there are disputes, apparent on the affidavit evidence, about relevant factual matters, the Court is constrained by the limited nature of the interim proceedings and cannot, at this point, make findings of fact in respect of these disputed matters. This constraint brings with it the natural consequence that factual matters asserted by the applicant that are denied or contradicted by the other evidence have to be treated effectively as unsubstantiated allegations. Of course, that makes the case harder for the applicant but that fact, in itself, is consistent with the principle that a party should not easily be able to have an ICL removed from a case.
The father submits that the ICL in this case failed to adequately consider his argument against the appointment of a report writer and then submits that she failed to give him an opportunity to argue against the appointment of a different report writer and thereafter, by retaining Ms C, “has removed the only male person within our entire court process” which “can be construed as significant gender bias”.
The father says he set out argument against the appointment of another report writer in a May affidavit but that the ICL argued in favour of the appointment of a report writer. That suggests to me that the ICL obviously disagreed with the father on the point, as she is clearly entitled to do, and determined herself to seek a further family report. It does not prove that the ICL failed to adequately consider the father’s argument against the appointment of a report writer.
Further, the ICL has deposed to holding the view, when retaining Ms C, that a new report writer might now be of benefit to the parties, Mr B’s last report being some three years old. The ICL says it is not her practice to give parents input into the choice of report writer.
As I have said earlier, once the father was told by the ICL of the appointments with the new report writer, if he so desired, he could have made application to the Court for the Judge to determine who should be the report writer and whether it should have been Mr B again, Ms C or a different one again. I am satisfied the father is sufficiently aware of his right to do that and is resourceful enough to have found out and done so if he did not already know and if he considered it appropriate.
The ICL’s decisions in this respect, particularly one to retain a report writer who happens to be female, do not cause me to be satisfied that she has demonstrated “significant gender bias”. As I said during the hearing, any expert retained to do a family report is going to be either male or female. The selection of one who happens to be female alone does not demonstrate or prove gender bias on the part of the ICL who selects her.
The ICL’s decisions surrounding obtaining a new family report and retaining Ms C, who is an independent expert well known to this Court, do not persuade me that she should be discharged.
The father points to a number of other facts that he says evidence the ICL’s negligence and bias that he submits support his argument that she should be discharged.
He said that the ICL would not give him a copy of her instructions to the report writer. The evidence shows that the father asked the ICL’s advice on whether he gets a copy of her instructions to the report writer at the same time as he asked her how he provided the report writer with any material such as his affidavit. It also shows that the ICL responded and told him that she provides a brief to Ms C and that he would see a list of the documents Ms C is provided with in her report. The ICL told him that he would not see the letter of instruction.
The ICL says in her affidavit relied upon at the hearing that she is not required to provide a copy of her instructions to the report writer.
This matter was in the FCC at the time. There is nothing in the Federal Circuit Court Rules that obligates an ICL to provide copies of her instructions to an expert retained by her to each of the parents.
The matter is in this Court now. There is nothing in this Court’s Rules that obligates an ICL to provide copies of her instructions to an expert retained by her to each of the parents.
The father does not depose to having asked the ICL actually to provide him with a copy of her instructions to the report writer after she answered his request for advice as to whether he gets a copy with the simple response “you don’t see the letter of instruction”. In all of these circumstances, I do not consider that by providing that answer to the father, the ICL has demonstrated negligence or bias against him that warrants her disqualification.
Of course, if the father considers it important that he obtains a copy of those instructions and the ICL refuses any further request to provide him with them, then he can always bring an application to this Court, on notice to the ICL and the mother, for an order that a copy of those instructions be handed over and that would be determined on its merits. My own view, tentatively expressed at this point given that every such application would have to be determined on its merits, is that I see no immediate reason why a parent should not be entitled to see the instructions provided by an ICL to a family report writer if he or she wishes to as part of the preparation of his or her case.
The father also deposes to events he says happened at the ICL’s offices on the day of the interviews for the report that he says support his argument that the ICL is biased against him.
The parties were informed of the schedule, apparently set by Ms C, pursuant to which the interviews would take place. The mother was to be interviewed between 9:30 and 11:30. The children between 11:30 and 12:30. The children then observed with their mother between 12:30 and 1:00. The children then observed with their father from 1:00 to 1:30. The father to be interviewed between 1:30 and 3:30.
The father says the children were in his care that day. He delivered them to the ICL’s office at 11:15. He saw the maternal grandmother sitting in the reception area. He approached the receptionist and asked where the children and he could sit and was told that they could sit on the couch. That was where the maternal grandmother was sitting. He says he told the receptionist he did not wish to sit with the maternal grandmother and asked if there was an empty room for him and the children to sit in. He saw the receptionist go in to speak with the ICL. He says the receptionist came back and told him he could go downstairs to wait but to leave the children with the maternal grandmother.
It is to be remembered that the timetable required the children to be ready for interview at 11:30 and the father to be there at 1:00.
The father says he told the receptionist that he should be allowed to wait with his children rather than them going into the grandmother’s care. He says he saw the receptionist go into speak with the ICL again before coming out and telling him that he could wait in an office but the children had to wait with the grandmother. He said whilst he was waiting he saw the children with the mother and their grandmother and that he was “highly disgusted and highly offended that the ICL would separate” him and the children and have them sit with the mother for the entire duration of the interviews. He says the ICL refused to speak with him and he expresses the belief that could only be because the mother was being provided with “one final opportunity to counsel the children prior to their interviews”.
For her part, the ICL says that the father chose to remain at her offices, knowing the appointment times, in circumstances where it is usual for parties to return to the office just prior to their scheduled time. She does not respond more particularly to the father’s assertions, though she might have. On the other hand, the mother, in her affidavit, says that the children wanted to wait with their maternal grandmother and were perfectly happy sitting there and talking with their grandmother. The mother says the father “abused the receptionist” and became “very hostile”.
It is unfortunate if the simple matter of appropriate arrangements for the accommodation of the members of the family attending for family report interviews becomes a matter of conflict and leads to one party being “highly disgusted and offended”. It is hoped that such sensitivities might better be addressed.
However, at this interim stage, where the evidence about the matter invites a number of possible findings that cannot possibly be made without cross-examination of deponents, I am simply not in the position to be able to say I am readily persuaded by the father that the ICL has acted in a way that demonstrates bias that demands her immediate discharge.
The father asserts that the ICL is incompetent as well as negligent and biased against him. Of course, the Court always expects high standards of competence from those lawyers charged with the onerous responsibility of independently representing children in parenting proceedings before it, whilst at the same time acknowledging that the level of remuneration received by ICL’s is significantly less than family lawyers generally charge private clients. Naturally, the high standards of competence expected are not always met. Such is human frailty.
It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required.
In this case, I am just not persuaded by the father’s evidence or his submissions that there is justification for discharging the ICL and I will not do so.
The mother’s application for an interim Order varying the primary Order
The mother pressed her application for an interim Order that varied the primary Order so that the eldest child could make up her own mind whether she spent time with the father.
Although the ICL in her written material indicated support for the mother’s position, at the hearing counsel for the ICL submitted, after obtaining instructions, that the issue was more appropriately left to trial and that the primary Order should not be varied on an interim basis as sought.
The mother told the Court, in answer to some questions she was asked, that the eldest child goes to spend time with the father now as required as she does what the mother tells her to do and that she, the mother, tells the child she must go as that is what the Order mandates. That is appropriate.
In those circumstances, I am not persuaded that the best interests of these children, particularly the 14 year old girl, currently require the position to be changed so that the 14 year old is given the ability to determine for herself whether she goes and spends time with her father. I will not make an order that gives her that ability just now.
Clearly, on the evidence of Ms C, there are some problems in the relationship between the father and his 14 year old daughter. He is the adult in the relationship. If he wants that relationship to improve, he is the one who will need to be principally responsible for that. It will not serve that relationship well, if the father simply chooses to lay blame for its quality at the feet of the mother.
Ms C made recommendations that included the family seeking out and participating in family therapy. That should happen if things are to improve. Parental rigidity and inflexibility is rarely a panacea for difficult relations with an adolescent child, especially where there is high conflict between that parent and the parent with whom the child has a primary loyalty, whatever the explanation for that loyalty is. Family therapy might help.
The father withdrew his application for an order that he could take the children on a holiday to Country E next year. All other interim applications will be dismissed.
The matter will be transferred back to the Federal Circuit Court for Judge Purdon-Sully to finalise the contravention proceedings she remains part-heard in and to give further consideration to the matter of which Court the proceedings should be heard in.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 November 2015.
Associate:
Date: 10 November 2015
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