Simons and Barnes - [2010] FMCAfam 457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMONS & BARNES

[2010] FMCAfam 457

FAMILY LAW – Application to discharge the appointment of the Independent Children's Lawyer.

Family Law Act 1975

Applicant:

MS SIMONS

First Respondent:

MR BARNES

File Number:

ADC 2873 of 2008

Judgment of:

Kelly FM

Hearing date:

29 April 2010

Date of Last Submission:

29 April 2010

Delivered at:

Adelaide

Delivered on:

29 April 2010

REPRESENTATION

Counsel for the Applicant:

Ms J A Milen

Solicitors for the Applicant:

Jo-Anne Millen & Associates

Counsel for the Respondent:

Mr G O'Keeffe

Solicitors for the Respondent:

O'Keeffe Lawyers

Counsel for the Independent Children’s Lawyer:

Ms V-A West

Solicitors for the Independent Children’s Lawyer

Nicola Atchison

ORDERS

The appointment of Ms Nicola Atchison as the Independent Children’s Lawyer for the child [X] born [in] 2007 is discharged.
Pursuant to s.68L of the Family Law Act 1975, the Legal Services Commission is requested to appoint a new Independent Children’s Lawyer to represent the interests of the child [X] born [in] 2007 as soon as possible.
The appointment of the Independent Children’s Lawyer is extended to apply to the child [Y] born [in] 2003.
The mother’s Application in a Case filed 9 April 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Simons & Barnes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2873 of 2008

MS SIMONS

Applicant

And

MR BARNES

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.

The mother has brought an application to disqualify Ms Atchison from appointment as the independent children’s lawyer in this Court, on the basis that Ms Atchison had previously represented Ms Simons while she was a child subject to in need of care proceedings in the Youth Court.
It is acknowledged by all parties that the [omitted] Court proceedings ended in about 1999. It is also acknowledged that the mother has already disclosed much of the information that may have come to Ms Atchison’s knowledge through those proceedings, for example, that the maternal grandmother has a psychiatric history and that the mother lived in foster care for a number of years.
The question is whether Ms Atchison’s knowledge of confidential information about the mother arising from the [omitted] Court proceedings could be to Ms Simons’ disadvantage in these proceedings, or may create a perception of bias in the independent children’s lawyer. Counsel agree that the relevant test is similar to that which applies to the question of judicial bias – that is, whether on the facts as they arise, there is a reasonable apprehension of bias, rather than any suggestion of actual bias or conflict.
Ms West argues that there is no realistic risk identified by the mother, given that the [omitted] Court proceedings concluded 10 years ago. She says Ms Atchison has little recollection of the previous proceedings, given the length of time that has passed. In such circumstances Ms West argues that a reasonable person could not conclude there is a potential for any conflict or bias in Ms Atchison’s appointment.
Ms West further argues that there are circumstances where it is not improper for a solicitor to act against a previous client, for example, where the earlier proceedings were of a very different nature and the prior instructions received within the solicitor/client relationship were unlikely to overlap or “bleed” into the present proceedings. She then gave an example of earlier civil proceedings for negligence against a corporation, versus later proceedings regarding tax issues as a situation where a conflict may not arise. As Ms West quite rightly points out, Ms Atchison was not previously acting upon the mother’s instructions insofar as the role of a child’s representative in [omitted] Court proceedings is on a “best interests” basis, as in this jurisdiction.
The very fact that Ms West had to be step so far from the nature of these proceedings brings to light the difficulties here before me. The Court is examining each party’s parenting role in the life of their child. A party’s family background may well be a significant factor in her or his emotional functioning and overall parenting capacity.
I accept Ms Atchison does not recall any great detail from the earlier case. However I assume that there would have been psychological or social work reports prepared in the course of those proceedings. The mother would have been a teenager at the time and likely would have been interviewed in the course of those reports, at an age where the mother would remember the process and obviously remembers Ms Atchison’s role at the time.
In my view it is open to conclude that a reasonable person in the mother’s position might perceive a risk that Ms Atchison’s attitude in these proceedings could be influenced, consciously or unconsciously, by her earlier knowledge of the mother’s circumstances and background, rather than on the evidence presented before this court.
I make it very clear to all parties that Ms Atchison is a highly professional and well regarded legal practitioner. The Court is confident that if Ms Atchison perceived any such risk she would herself have declined the appointment as independent children’s lawyer in these proceedings.
I am entirely confident that there is no risk of actual conflict or bias arising from Ms Atchison’s appointment. However I accept that there is a risk of perception of such conflict or bias. It may be trite to say, but the principles that apply in this area are based on the firm foundation that justice must not only be done, but must be seen to be done.
The mother is entitled to feel that she is receiving a fair and impartial hearing. Given the importance of the independent children’s lawyer in parenting case, particularly their role in assisting negotiations as a “fair and honest broker”, the perception of impartiality is as important as the reality.
I will comment briefly on the timing of this application. There is no doubt this application has been filed late in the proceedings. Ms West did not focus on this in her submissions, but she could well have done so. The order for the appointment of the independent children’s lawyer was made on 21 August 2009 and Ms Atchison filed her Notice of Address in September 2009. The mother would have become aware of Ms Atchison’s appointment sometime thereafter. However, I note that the mother’s representation since that time has been somewhat problematic. Her previous lawyers withdrew in November 2009. Whatever the explanation for these difficulties, I accept Ms Milen’s submission that her client only became aware of Ms Atchison’s involvement sometime in November 2009.
The mother was self‑represented at that time. I cannot recall whether this issue was discussed in the course of the November 2009 contravention hearing but I accept the mother may not have been aware that she could challenge Ms Atchison’s appointment until Ms Milen came on board as the mother’s solicitor in February this year. The issue was certainly raised during the hearing in February.
While the application could have been brought earlier, nonetheless the interests of justice weigh in favour of the mother’s right to feel confidence in the legal process, and in the neutrality of the independent children’s lawyer. I note the matter is listed for trial in June. Reports have already been arranged or are in train. I do not consider that the appointment of a new independent children’s lawyer should lead to any delay. I am satisfied that there is no disadvantage to the applicant father in my ruling.
I make orders as set out at the commencement of these reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Kelly FM

Date: 29 April 2010