Seaward and MacDuff
[2011] FMCAfam 986
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEAWARD & MACDUFF | [2011] FMCAfam 986 |
| FAMILY LAW Practice and procedure – oral application for removal of Independent Children’s Lawyer. |
| Family Law Act 1975, ss.68L(2), 68LA |
| Bennett & Bennett (1991) FLC 92-191; 14 Fam LR 397 |
| Applicant: | MR SEAWARD |
| Respondent: | MS MACDUFF |
| File Number: | SYC 2177 of 2011 |
| Judgment of: | Monahan FM |
| Hearing date: | 18 August 2011 |
| Date of Last Submission: | 18 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Abrams Turner Whelan Family Lawyers |
| Independent Children’s Lawyer: | Brian Samuel & Associates |
ORDERS
All extant applications be adjourned to this Court on 19 August 2011 at 2:15pm for interim hearing (“the interim hearing”) with an estimated duration of not more than two (2) hours.
The Applicant’s oral application made on 18 August 2011 for the discharge of the Independent Children’s Lawyer be dismissed.
The Independent Children’s Lawyer be granted leave to appear at the interim hearing by telephone.
AND THE COURT NOTES THAT:
(A)The purpose of the interim hearing is to consider the Applicant’s Application in a Case (which includes an order for a recovery order), to deal with any outstanding issues relating to material produced under subpoena and to make further directions in the matter.
IT IS NOTED that publication of this judgment under the pseudonym Seaward & MacDuff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2177 of 2011
| MR SEAWARD |
Applicant
And
| MS MACDUFF |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and may be settled should the need arise or if requested.
The applicant in these proceedings is MR SEAWARD (“the father”) and the respondent is MS MACDUFF (“the mother”). In the substantive proceedings the father is seeking orders for the three children of the relationship, Z, born (omitted) 1998 (“Z”), and X, born (omitted) 2004 (“X”), and Y, born (omitted) 2005 (“Y”), (“the children”) live with him and spend time with the mother, but not in the presence of or left in the sole care of the mother’s partner, Mr MacDuff. Interestingly, in light of the oral application now before the Court, the father also sought an order in his Initiating Application filed 10 April 2011 for the appointment of an Independent Children’s Lawyer (“ICL”).
Although the father was initially represented by Mr Bruce Cameron, Mr Cameron withdrew on the eve of the first return date of the father’s Application.
The mother opposes the father’s Application sought by the father and seeks different parenting orders in relation to the children that would achieve an outcome whereby both parties would have equal shared parental responsibility, the children would live with her and spend time with the father.
This matter has been before me on a number of occasions, most recently on 23 June 2011. On that occasion I listed it for final hearing in August of 2012 and made orders for the preparation of a family report. I also listed the matter to today in relation to an issue in respect of subpoenas issued by the father to Dr C and Ms J.
The father filed an Application in a Case on 22 July 2011 seeking various interim orders. An expedited listing was requested by the father and that application was reviewed by a Registrar, who determined that that Application in a Case be listed to today, being the earliest date the Court could accommodate.
The father’s Application in a Case seeks various orders, including a recovery order in relation to the children and, again interestingly, it also seeks an order for the ICL to reinterview the children.
When the matter first was mentioned before me today I asked the father whether he was seeking an order to discharge the ICL. Despite such order not being sought in the Application in a Case it appeared from my reading of the father’s affidavit in support and the mother’s affidavit in response that this was something that the father was seeking.
The father confirmed this in Court before me this morning and I consequently allowed him to make an oral application today seeking that the ICL be discharged. I stated to the parties that the Court would have to consider that issue first before any of the other applications before the Court, including the subpoena issues, could be considered.
Background
The father was born on (omitted) 1967 and is currently aged 43 years. The mother was born (omitted) 1972 and is currently aged 39 years.
It would appear the parties commenced their de facto relationship in 1995. The parties eldest child, Z was born on (omitted) 1998. It would appear that the parties separated during 2000 and on 26 May 2000 consent orders were made regarding Z whereby she lived with the mother and spend time with the father.
The parties reconciled approximately 18 months later. On (omitted) 2004 their son X was born and on (omitted) 2005 their son Y was born.
The mother asserts the parties separated in late 2006 and have not subsequently re-cohabited.
it would appear that apart from a 6 month period in 2007, where the mother and the children lived in Brisbane, they resided with the maternal grandparents in (omitted) until late 2010 and early 2011.
On 14 December 2009 the father was incarcerated for approximately 15 months following a conviction for assault, theft and larceny. The father asserts he is presently appealing the conviction.
During 2010 the mother suffered from depression which she asserts was work related. That said, she also commenced a personal relationship with Mr MacDuff and they married in (omitted) 2011. The father asserts that the parties only separated in October 2010, that is about 6 months before he was released from prison. What is agreed is that the mother told the father about her engagement to Mr MacDuff around the time the father asserts the parties separated.
The parties relationship has deteriorated since the mother’s marriage and the father’s release from prison.
The father commenced the substantive proceedings by his Initiating Application filed 6 April 2011 which was made returnable in my duty list on 16 May 2011. On that day I made various orders including an order for the parties to attend a Child Dispute Conference on 16 June 2011 and a further order seeking the appointment of an Independent Children’s Lawyer (“ICL”). Mr Samuel was subsequently appointed as ICL in this matter.
The matter returned before me on 21 June 2011 and I was advised that the Child Dispute Conference did not proceed on 16 June 2011 due to the Family Consultant being ill and had been rescheduled to 21 June 2011. Following submissions I agreed to adjourn the matter for 48 hours. I understand the ICL used the short adjournment to interview the children. When the matter returned on 23 June 2011 I made orders listing the matter for final hearing on 27 August 2012 and for the preparation of a family report.
After further submissions I also made the following orders:
“3.Both parties keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children move from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled.
4.The parties may communicate by text message in relation to the children in circumstances where it would be unfeasible or impractical to make use of the communication book (for example, where one party is running late to changeover).
5.The parties may communicate by mobile telephone in relation to the children in circumstances where there is a degree of urgency or in emergency situations.
6.For the purposes of paragraphs four (4) and five (5), the parties are each to ensure that their respective mobile telephones are switched on and are charged, and that the other party is aware of any new mobile telephone number within 48 hours of any change.
7.The Independent Children’s Lawyer be granted liberty to apply on seven (7) days notice, only in respect of whether or not he is able to obtain funding for an independent expert report in lieu of the Family Report.
…
13.The Respondent be granted first access for seven (7) days to inspect any documents produced under the subpoena issued to Dr C.
14.Subject to paragraph 14 herein, the parties and the legal representatives be granted liberty to inspect material produced under subpoenas issued to Dr C and Ms J.
15.Each party be and is hereby restrained from the following:
16.Denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so;
17.Discussing these proceedings or any issues arising out of these proceedings in the presence or hearing of the child, or allowing any other person to do so.
18.The parties are restrained from physically disciplining the children or from permitting any third party to do so.”
The matter was otherwise adjourned to today, that is 18 August 2011, in order to deal with the outstanding subpoena objections. As stated, the father’s Application in a Case filed 22 July 2011 was also made returnable on that date.
Issues
The sole issue to determine in this interim decision is whether the ICL, Mr Samuel , should be discharged and a different ICL appointed.
Law and discussion
This Court has the power to appoint an ICL pursuant to s.68L(2) of the Family Law Act 1975 (“the Act”). Generally speaking, in the New South Wales, the New South Wales Legal Aid Commission makes the decision as to who should be appointed and may fund that appointment and/or seek that the parties fund, or at least contribute to, the costs associated with that appointment.
As indicated to the father prior to the commencement of submissions, the Court has the power to remove an ICL and there is case law to support that. The question in considering an application to remove an ICL is whether the ICL is likely to carry out his or her task properly. Again, there is case law to underpin that assertion.
A ICL might be removed, for example, if there are proper reasons for doing so, such as a meritorious complaint about the conduct of the ICL or where there is a reasonable apprehension that the ICL would not deal with the matter impartially.
I note that the ICL has a significant discretion as to how he or she should conduct a case. That said, there are national guidelines promoted by Legal Aid Commissions across Australia as to the role and duties and obligations of the ICL.
In addition, relatively recent amendments to the Act, namely s.68LA, articulate what the Parliament has described as the role of the ICL. Section 68LA of the Act states as follows:
“Role of independent children's lawyer
When section applies
(1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children's lawyer
(2) The independent children's lawyer must:
(a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
(3) The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children's lawyer:
(a) is not the child's legal representative; and
(b) is not obliged to act on the child's instructions in relation to the proceedings.
Specific duties of independent children's lawyer
(5) The independent children's lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court's attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children's lawyer:
(a) is not under an obligation to disclose to the court;
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children's lawyer.
(7) The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.
(8)Subsection (7) applies even if the disclosure is made against the wishes of the child.”
Submissions
The father relies on his affidavit sworn and filed on 22 July 2011.
In addition, I allowed the father to give some additional evidence-in-chief and, in the interests of fairness, as he’s a self-represented litigant I also asked a number of clarifying questions to better understand his evidence. The relevant paragraphs of the father’s affidavit that deal with the discharge of the ICL that would underpin such an outcome are in paragraphs 14 and 15 of his affidavit as follows:
“14. On the last day the children were with me they called the ICL and left him a message. In a letter from the ICL he has confirmed he received a very disturbing call from who he thought was X. It is not possible for a 5 or 7 years old to defend themselves. Despite this ‘disturbing’ call the ICL made no effort to do anything to check if the children were in danger This is an absolute disgrace. I believe the ICL should be removed the court as he does not look after the interests of the children nor is he independent. On 23rd June 2011at the court Mr Samuel told me that he would interview the children on the school holidays. Instead he went behind my back and interviewed a day or two later. Not only did that ensure that Ms MacDuff prepared the children with what to tell him but my children were forced into having 2 days away from school to do this as they were dumped at their grandparents home. It was a blatant lie to me as a parent of the children. As the guidelines states “The ICL must be truly independent of the Court and the parties to the proceedings”. If you mislead one parent and allow the other to prep the children then are you are no longer independent. The children were not asked about a most crucial issue in this case, violence from Mr MacDuff. Mr Samuel confirmed this to me and said that was up to a social worker or the like. As there isn’t one involved it would appear no one, besides me is looking after the interests of Z, X and Y.
15. Order 15b of 23 June 2011 should be removed as trying to represent the interests of the children is made impossible by this order. The ICL, when he interviewed the children have a 5 years old a business card and supposedly said words to the effect “ring me if you have any problems”. A 5 year old cannot make a phone call without help. He is unable to relay what he wants to say over the phone with out the intervention of a trusted adult. He can not comprehend what to do or say on his own. To think that the interests of my 5 and 7 year olds is being represented in this fashion is a disgrace to common sense in my opinion. Anyone trained in childcare or psychology of children would confirm this. It failed to meet the basic guidelines set out for ICL’s such as “The ICL is expected to use his/her professional judgment and skill, subject to any directions or orders of the Court”. Even under the United Nations Convention on Rights of the Child that these guidelines are based on, the ICL has failed as he did not deal with the request of the child in Z’s case and actually prevented shared custody because he didn’t know which city Z was schooled in…”
The mother also relies on her affidavit sworn on the 17 August 2011 and filed in Court today.
The father’s general complaint is that the ICL is not carrying out his obligations properly. More specifically, the father complains that:
·he was misled by the ICL as to when he was going to interview the children, which gave the mother an opportunity to somehow coach or train the children in their responses to the ICL;
·the ICL has acted inappropriately in giving the children, and in particular the youngest child Y, his business card; and
·the ICL acted inappropriately in the way he responded to a message left on his phone by X on the afternoon of Sunday, 17 July 2011.
These complaints are rejected by the mother and, indeed, by the ICL.
Discussion
The first complaint, as indicated, relates to the date of the children’s interview with Mr Samuel. Mr Samuel acknowledges that he interviewed the children on 22 June 2011. That is the day between which the matter was in Court before myself.
The father asserts that there was an agreement that the children would be interviewed during the July school holidays. I note there’s no document to support this before the Court.
What is clear is that Mr Samuel addressed the Court on 23 June 2011 and as part of his submissions to the Court on that occasion it was clear that he had, indeed, interviewed the children the day before. I note that the father did not raise his complaint before me on 23 June 2011.
I appreciate when I asked him that question in the witness box he asserted that he wanted to put his complaint in writing. Indeed, I acknowledge that he did put that complaint in writing as shown by the emails exchanged between the father and Mr Samuel on 15 July 2011 and 17 July 2011. These emails are attached to the mother’s affidavit.
Why the father waited until 15 July 2011 to raise his complaint about this issue is not clear.
The father’s assertion that the mother has coached the children is an allegation yet to be tested. That said, I find it difficult to understand the father’s assertion that the mother was somehow advantaged by the children being interviewed on 22 June 2011 rather than in the school holidays some three weeks later.
The father’s second complaint relates to Mr Samuel giving the children his business card. I think it is appropriate that I make note of the “Guidelines for Independent Children’s Lawyer” (“the Guidelines”) as promoted by this Court, the Family Court of Australia, and the National Legal Aid bodies. These Guidelines make certain comments that may be of assistance. For example, under the heading “Introduction” they state this:
“The way in which an ICL acts may not always meet the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities.”
I also note that under the heading “Limitations of the Role of the ICL” the Guidelines state:
“It is not the role of the ICL to:-
conduct disclosure interviews;
become a witness in the proceedings;
conduct therapy or counselling with the child.”
The ICL should be alert and sensitive to the risk of the child becoming over dependent upon him or her and should consider seeking peer or professional advice in responding to such a situation.
The ICL should prepare the child for the end of the professional relationship before the end of the proceedings.”
Also under the heading “Meeting with the Child’ the Guidelines state:
“The assessment about whether, where and how to meet the child is a matter for the ICL.”
Under the heading “Relationship Between the Parties and the Legal Representatives” the Guidelines state:
“The ICL is to remain independent, objective and focussed upon promoting the child’s best interests in all dealings throughout the proceedings.
The parties and their legal representatives should be encouraged to be non-adversarial where possible and to maintain a focus on the child’s best interests. The ICL should promote this approach whenever appropriate.
The ICL should, as soon as practicable, inform the parties of their role and use their best endeavours to ensure that the parties understand the ICLs role within the proceedings.
Where the parties are legally represented, communication between the ICL and the parties should normally be through the legal representatives.
The ICL may need to have direct contact with the parties during the course of the proceedings. Such contact must have the consent of the party concerned and should normally be arranged through the party’s legal representatives. If one or more of the parties are unrepresented the ICL is to communicate directly with the party and should advise the other parties of the fact of any meeting with the unrepresented party.
The ICL is not required to communicate to the other parties the substance of his or her conversations with the child.”
It is difficult to see how Mr Samuel can be criticised by the father in light of the relevant legislation in the Guidelines. The role of the ICL is codified in s.68LA of the Act. In the case of Bennett & Bennett (1991) FLC 92-191; 14 Fam LR 397 the Full Court of the Family Court comprising Nicholson CJ, Simpson & Finn JJ commented that the role of the ICL is akin to counsel assisting a Royal Commission. The ICL assists the Court process, yet he or she is not a party to the proceeding. The ICL, like any lawyer involved in the Court process, must act carefully so that he or she does not become involved in the case to the point that he or she needs to give evidence in the case.
The father’s expectation is that Mr Samuel should involve himself further in the case and particularly involve himself in investigating in the case. By not doing so there is a complaint that Mr Samuel is not properly exercising his duty.
The father, as a self-represented litigant, also appears to blur the role of a lawyer with that of a participant or party in the proceedings.
As to the third complaint regarding the instance on 10 July 2011, I am satisfied that Mr Samuel wrote to the parties the day after he received the phone message from X.
I note that the letter was sent on the first business day after the call was made and further note that the call was actually made on a Sunday.
I am also satisfied that Mr Samuel sent letters to both parties that day.
The father’s own evidence is that he did not collect his mail until later that week. This may explain why he was not aware of the existence of the letter until after the letter was sent on the Monday. That said, it was clear that the father knew about it earlier in the week because of the discussions that occurred between himself and the mother’s legal representatives.
Moreover, I note that the father’s own evidence that the telephone call occurred when the children were in his care. I am satisfied that the father knew the call was going to be made.
Again, it is difficult to see how Mr Samuel can be criticised for how he responded to a message that was left by a child after he has issued an invitation to call. Moreover, it is logical that Mr Samuel needed to follow up, by inquiring as to which parent had the care of X on that day and I am satisfied that Mr Samuel did this at the earliest opportunity.
What does concern me, of course, is that the incident of 10 July 2011 raises questions about whether the father has been adhering to the injunction not to discuss these proceedings with the children.
Conclusion
Having considered the father’s oral application in light of the available evidence and the relevant provisions and, indeed, the submissions of all parties, I am satisfied that there are no circumstances that would justify the discharge of Mr Samuel as the ICL in this case.
Consequently, the father’s oral application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 13 October 2011
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