STANHOPE and STANHOPE
[2023] FCWA 204
•27 SEPTEMBER 2023
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: STANHOPE and STANHOPE [2023] FCWA 204
CORAM: SUTHERLAND CJ
HEARD: 4 SEPTEMBER 2023
DELIVERED : 27 SEPTEMBER 2023
FILE NO/S: 6561 of 2018
BETWEEN: MS STANHOPE
Applicant
AND
MR STANHOPE
Respondent
Catchwords:
PRACTICE AND PROCEDURE – Application to discharge Independent Children’s Lawyer – Proper basis for discharge not established – Application dismissed – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr E |
| Respondent | : | In Person |
| Independent Children's Lawyer | : | Mr Z |
Solicitors:
| Applicant | : | Law Firm C |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Law Firm G |
Case(s) referred to in decision(s):
Langmeil v Grange (No 3) [2011] FamCA 171
Stanko & Taylor [2021] FCWA 110
T and L (2000) FLC 93-056
Stanhope and Stanhope [2023] FCWA 174
W & M and Anor [2006] FamCA 512
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanhope and Stanhope has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
INTRODUCTION
1[Mr Stanhope] (the father) and [Ms Stanhope] (the mother) are involved in parenting proceedings in this Court in relation to their six‑year-old son, [J], who was born in November 2016 (J / the child). The current proceedings are still in the relatively early stages and have been complicated by a number of matters, as follows: firstly, there is significant mistrust and conflict between the parties, including what is the appropriate treatment regime for J, given his diagnoses of Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), and Global Developmental Delay (GDD), with risk of developing an intellectual disability; secondly, each party making significant allegations that the other has subjected them to family violence; thirdly, each party alleging that J has made disclosures of physical and/or emotional abuse by the other party, in circumstances where there is little, if any, independent corroborative evidence of the child suffering any non-accidental and/or deliberate injury or inappropriate discipline whilst in the care of either party; and fourthly, both parties (to a greater or lesser extent) appearing to accept that J’s alleged disclosures of abuse about the other party are entirely truthful, notwithstanding that there may be other plausible explanations for J making the alleged disclosures, particularly having regard to the ongoing conflict and mistrust between the parties and J’s significant developmental issues.
2On 25 May 2023, the father filed a Form 2 application (the discharge application), seeking, inter alia, the following orders:
a)[Ms Q] be “dismissed and banned from acting” as an Independent Children’s Lawyer (ICL) “within my case”.
b)Ms Q be “banned” from being involved as an ICL in any case of which the father is a party.
c)Ms Q be “banned” from acting as an ICL in any case, pending a full investigation into her conduct on 22 May 2023.
d)Ms Q do produce copies of any communications directly between herself and the mother to which the father has not been privy to, including copies of phone records, emails, and text messages.
3In short, the father raised concerns about the conduct, impartiality, and capabilities of Ms Q concerning her role as an ICL, including in this matter. Whilst the father’s affidavits contained significant objectionable material, including material in the nature of legal submissions, and his suspicions and beliefs about various matters, rather than facts, it was apparent that the main bases for his concerns were as follows:
a)Given Ms Q’s involvement as a committee member of an association known as [women's legal association] ('[Association A]'), a fair-minded lay observer might reasonably apprehend that Ms Q might not bring an impartial and unprejudiced mind to her role as an ICL; and there is a conflict of interest in Ms Q acting as an ICL due to her involvement in Association A.
b)That Ms Q deliberately misled the Court on 22 May 2023.
c)That Ms Q acted incompetently and/or in an unprofessional way in her conduct as an ICL in the matter.
d)That Ms Q has acted contrary to the child’s interests.
4The ICL and the mother both opposed the discharge application and sought that it be dismissed.
5For the reasons which are set out in this judgment, I am not satisfied that a proper basis for Ms Q’s discharge as the ICL has been established. I am also not satisfied that it is appropriate to make the other orders sought by the father in his discharge application. I intend to dismiss the father’s application.
THE EVIDENCE RELIED UPON BY THE PARTIES AND THE ICL IN RELATION TO THE DISCHARGE APPLICATION
6For the purposes of the hearing before me on 4 September 2023, the father relied upon his affidavits filed on 25 May 2023, 30 May 2023, 12 June 2023, and 1 September 2023, together with the affidavit of his friend [Mrs Castellanos] filed on 12 June 2023. The mother relied upon her affidavit filed 18 August 2023. The ICL relied upon her affidavit filed on 3 July 2023.
7At the hearing on 4 September 2023 the father confirmed that he also sought to rely upon the court’s security CCTV footage for 25 May 2023, (the CCTV footage), in relation to events outside of the courtroom prior to the commencement of a hearing in the matter before the presiding Magistrate. Although it was unclear whether the father had given the requisite prior notice of his intention to do so, it subsequently became evident that he had given such notice to the Court. Subsequently I made further directions in chambers, including for the parties and the ICL to view the relevant CCTV footage, and to have liberty to file further short submissions, specifically limited to the topic of the relevant CCTV footage. The ICL and the father both filed further short submissions pursuant to the direction.[1] However, the father’s submissions went well beyond the specified topic (and to the extent that his submissions were not specifically directed to the topic of the relevant security CCTV footage, they have been disregarded by me for the purposes of this decision).
[1] The ICL’s submissions were filed on 19 September 2023 and the father’s submissions were filed on 26 September 2023.
8Given the nature of the discharge application, in preparation for this hearing, I have reviewed the entire court file, as well as the CCTV footage. While I do not intend to refer to all the evidence, because it is not practical or necessary to do so, it should not be assumed that I have ignored it, or that I have overlooked it.
BACKGROUND TO THIS APPLICATION
9Given the nature of the discharge application, I consider it is important to set out a history of this matter.
10The father was born in Australia in 1965. He is currently unemployed. The mother was born in [Country B] in 1992. She is currently employed as a medical receptionist.
11The parties were married in October 2013 in Perth. At the time of their marriage the father was approximately 48 years old and the mother was approximately 21 years old. J is the parties’ only child together.
12The mother has no other children. The father has five other children from three earlier relationships, being:
a)[L] aged approximately 14, who continues to live in Western Australia and whose mother [Ms H] was in a relationship with the father from approximately 2006 to 2012.
b)[M] aged approximately 16, [D] aged approximately 19, and [P] aged approximately 21, all of whom reside with and/or near their mother in South Australia.
c)[N] aged approximately 27, who also resides in Western Australia.
13The parties separated on a final basis in August 2018 when the mother left the home with J and went to live in a refuge. Shortly after their separation the father commenced urgent proceedings in the Court. In short, both parties made risk allegations against the other, including the father alleging that the mother suffered from depression; and the mother alleging that the father subjected her to ongoing family violence and that he suffered from depression and post‑traumatic stress disorder.
14In August 2019, the Court made final financial consent orders and in January 2020 the Court made final parenting orders, including that the parties have equal shared parental responsibility for J, the child live with the mother and spend time with the father for five nights per fortnight.
15It appears to be common ground that in recent years, J has been under the care of a paediatrician through the Western Australian Child and Adolescent Health Service. He was diagnosed with ASD and ADHD. He receives funding through the NDIS, which pays for his speech therapy, occupational therapy, and physiotherapy. He also receives additional supports at his school. The issue of J’s ADHD diagnosis and treatment regime is the subject of significant ongoing disputes and conflict between the parties. In particular: whilst the mother accepted the diagnosis and recommended treatment (that J takes prescribed medication, being Ritalin), the father did not, and instead sought: (1) a second opinion; and (2) natural alternatives to J being prescribed medication such as Ritalin.
16In August 2022, the Department of Communities (the Department) commenced a child safety investigation in relation to the mother’s concerns that J was being physically abused whilst in the father’s care – including coming home with unexplained bruising, and cuts and burns on his fingers (allegedly caused by the father punishing J by putting his hand on a barbeque grill).
17On 7 September 2022, the mother obtained an interim family violence restraining order (FVRO) protecting the child from the father.
18On 9 September 2022, the father then filed a Form 2 enforcement application, including seeking a recovery order for the delivery up of the child to him. In short, the father maintained that the mother’s allegations of physical abuse which led to the granting of the interim FVRO were false.
19On 13 September 2022, the Department provided a written Memorandum to the Court, inter alia, advising that:
The Department has a current open file in relation to this matter.
The Department have had contact in relation to one Child Protection concern for the child, [J], DOB 23/11/2016.
On 24 August 2022 the Department received a contact from the mother, [Ms Stanhope] in relation to concerns of physical abuse for [J]. [Ms Stanhope] reported that [J] had allegedly returned from contact with [Mr Stanhope] with unexplained bruises and cuts which [Mr Stanhope] reports as accidental, such as [J] falling off his bike. [Ms Stanhope] further alleges that [J] has returned from [Mr Stanhope]’s home with burns to his fingers that were allegedly because of [Mr Stanhope] placing [J]’s hand on a BBQ. [Ms Stanhope] requested a Police welfare check which was caried out and Police reported to [Ms Stanhope] that there were no concerns noted for [J] in the care of [Mr Stanhope]. It is noted that [J] has Autism and speech delays that may impact his vulnerability further. [Ms Stanhope] reported that she has photographic evidence of the burns and bruising that she would send to the Department. Given the nature of the concerns the Department opened a Child Safety Investigation (“CSI”) to ascertain the veracity of the concerns reported by [Ms Stanhope]. It is noted that following an examination at Perth Children’s Hospital Child Protection Unit (“CPU”) that the injuries were medically deemed to be either consistent with non-accidental imprint injury, or were historical, in the case of a bruise to the head area and the burn to the finger area and were not able to be documented or assessed by the attending doctor at CPU. Further, although it is documented that [J] has Autism and ADHD that based upon his presentation at CPU it was assessed that [J] should have capacity to be interviewed. The CSI remains open at this juncture.
[Emphasis added]
20On 30 September 2022, the Department provided a further written Memorandum, inter alia, advising that:
The Department’s Child Safety Investigation (CSI) referred to within the above-mentioned memorandum remains open at this time. Since information was last provided to the Court, the Department have attempted to engage the child [J] (“[J]”) DOB 23/11/2016 in a Child Assessment Interview, however [J] did not engage in this process. [J] has participated in a Specialist Child Interview which has been reviewed as part of the current investigation. Further discussions have also been held with the father, [Mr Stanhope] (“[Mr Stanhope]”) and the mother, [Ms Stanhope] (“[Ms Stanhope]”).
While the Department’s CSI outcome report has not yet been written up and completed, the Department has assessed that [J] has not experienced significant harm because of Physical Abuse and as such, harm will not be substantiated.
It is anticipated that the CSI outcome report will be completed by 07 October 2022.
[Emphasis added]
21On 3 October 2022, the Department wrote to the father, inter alia, advising him that the “investigation has found that [J], aged 5, has not been significantly harmed, as a result of physical abuse. As such, the outcome of the CSI has been recorded as not substantiated.”
[Emphasis added]
22Although the father appeared to maintain that he had been entirely vindicated by the Department (in that he had been proven innocent and the mother proven to be a liar), in my view the reality is not so clear‑cut, given there was some evidence that J had suffered some injuries (burns and bruises), but the evidentiary difficulties noted by the Department during its investigation precluded any substantiation as to how the injuries occurred.
23On 11 October 2022, the mother cancelled the interim FVRO.
24On 27 October 2022, the mother then commenced these proceedings, by filing a Form 1 application and supporting documents. The key final orders sought by her were that firstly, she has sole parental responsibility for J and secondly, the child live with her. In her Case Information Affidavit, the mother alleged instances of the father physically abusing and neglecting J, including punishing the child by burning his hands on a barbeque grill and hitting the child with a belt, causing bruising and a laceration on his legs.
25At the hearing of the father’s Form 2 enforcement application on 28 October 2022, the father confirmed to the Court that he had recommenced spending time with J pursuant to the January 2020 final orders. The Court otherwise made procedural orders and adjourned the matter to the hearing on 2 November 2022.
26On the first return date of the mother’s Form 1 application on 2 November 2022, the presiding Magistrate made various orders, including: (1) for the father to file responding documents; (2) for the WA Police to provide the Court with information pursuant to section 69ZW of the Family Law Act 1975 (Cth) and sections 28A, 28B and 28C of the Children and Community Services Act 2004 (WA); (3) for the appointment of an ICL, which included a standard order for both parties to file a financial statement; (4) for the parties to attend a Case Assessment Conference with a Family Consultant at 9am on 24 February 2023; and (5) programming the matter to an interim hearing on 8 March 2023.
27The father filed his responding documents on 2 December 2022. The key final orders sought by him were that: firstly, he has sole parental responsibility for J; secondly, the child live with him; and thirdly, the mother be restrained by injunction from seeking medical treatment for the child and administering any medications to the child without the father’s consent. In his Case Information Affidavit filed in support of his response, the father alleged that the mother was psychologically abusing the child and giving the child ADHD medication that had been previously prescribed by the child’s treating paediatrician, but without his consent.
28In January 2023, the Department provided a written Memorandum to the Court, in response to a Form 4 Notice filed by the mother, and advised that:
The Department does not have an open file in relation to this matter.
On 30 September 2022, the Department provided a Memorandum to the Court in relation to the prior history of contact with the family. The Department have since had the following contact:
On 31 October 2022, the Department received a contact from the father, Mr [Stanhope] (“[Mr Stanhope]”) alleging that the mother, Ms [Stanhope] (“[Ms Stanhope]”) continued to administer medication (Ritalin) when she was requested not to give it to him. [Mr Stanhope] stated that he would prefer that J was prescribed natural medications and explained that he had discussed this with a paediatrician who agreed to conduct a full review. [Mr Stanhope] further alleged that [Ms Stanhope] was psychologically harming J by controlling him and making derogatory remarks about [Mr Stanhope]. The Department contacted [Ms Stanhope] and discussed J’s medication where she confirmed that she and [Mr Stanhope] were seeking advice from different paediatricians regarding the most appropriate treatment for J. The Department determined there was no further role, and the contact was closed with no further action warranted.
The Department have had no further contact in relation to this matter.
The Department has made a preliminary assessment into the concerns contained within this notification and it was determined that the concerns noted have previously been reported to the Department and assessed.
It is the Department’s view that the concerns expressed in the notification do not require further action by the Department at this juncture.
The Department does not intend to intervene in the Family Court proceedings at this juncture.
29In or about February 2023, Ms Q was appointed as the ICL in the matter and filed a Notice of Address for Service on 20 February 2023.
30At the Case Assessment Conference which was scheduled to take place at 9am on 24 February 2023, the father appeared in person, the mother attended with her solicitor [Mr E], and Ms Q also attended. Unfortunately, the Family Consultant who was scheduled to conduct the conference called in sick and another Family Consultant was unable to properly prepare for the conference in the limited time available. Accordingly, the Case Assessment Conference was vacated and rescheduled to take place on 28 March 2023. As a consequence, the interim hearing was also rescheduled, so that the Case Assessment Conference Report would be available to the parties, the ICL, and the presiding Magistrate.
31On 28 March 2023, the father, [Ms R] acting on behalf of the mother, and Ms Q attended the Case Assessment Conference in the morning. The mother was not initially in attendance (with there being an apparent issue about whether she had been notified of the date and/or time beforehand). The Family Consultant met with the father in the morning and with the mother in the afternoon. Ms Q also attended parts of the conference, including attending most of the morning session in person and attending the afternoon session by telephone. The salient parts of the Case Assessment Conference Report dated 17 April 2023 were as follows:
a)Information provided by the WA Police revealed that the father had nine convictions, the most recent being on 27 October 2022 for failing to comply with a direction under the Emergency Management Act 2005 – to wear a mask during the Covid-19 pandemic. The father also had seven traffic-related convictions and a historic stealing conviction. The WA Police also provided details of three incident reports concerning one or other of the parties, including of the mother finding a GPS tracker on her car, which she suspected had been placed on her car by the father.
b)The mother reported that during the relationship: (1) the father subjected her to family violence, including, physical, sexual, and verbal abuse and denigration; (2) she was scared of the father; and (3) there was a power imbalance between the two, given that she moved to Australia from Country B on a spouse visa and she was reliant on the father for social connections and finances. The father denied the mother’s allegations and instead alleged that the mother was subjecting J to family violence by continuing to give the child his Ritalin medication. He also alleged that the mother had mental health issues and that she was a pathological liar.
c)The mother acknowledged that since the relationship ended, she continued to be scared of the father. She also acknowledged that she suffered from some mental health issues, including feeling “really down”, trouble sleeping, and was very distressed by the father bringing civil defamation proceedings against her related to the interim FVRO.
d)The mother continued to raise concerns about the father subjecting J to inappropriate physical discipline and referred to the father having previously hit his older son L with a wooden spoon and punishing L by being made to kneel on rock salt and squat while balancing heavy books in his hands.
e)The father told the Family Consultant that prior to separation, the mother was a good parent to J. However, he believed that the mother needed to improve her parenting and stop involving J, such as telling him things about the father that were not true and forcing him to take medication for his ADHD.
f)The parties presented polarised positions in relation to J’s current developmental stage, needs, and the treatment regime for his diagnoses of ASD and ADHD. The mother was supportive of J being medicated. On the other hand, the father reported he was seeking a second opinion from Dr [F] on J’s diagnosis of ADHD and wanted to explore a path that did not involve medication. Although the father “hesitantly agreed” that if the second opinion also confirmed that J should take prescribed medication then he would follow the advice, the Family Consultant expressed doubt that the father would do so. In particular, the Family Consultant opined that: “I have formed the impression the father would remain resistant to the medical support that could be provided to J, even if a medical review were to recommend this. There may be a risk the father would ignore or reject medical evidence if it is contrary to his beliefs.”
g)The parties were also in dispute about the spend time with arrangements, with the father proposing a week-about arrangement and the mother proposing a reduction in the father’s time with J, limited to weekends only.
h)The Family Consultant opined that J appeared to be caught in the middle of his parents’ ongoing conflict and that there was an absolute absence of trust between the two parents. The Family Consultant considered that there was a real risk that the ongoing conflict between the parents would continue to negatively impact J, especially given his additional needs.
i)The Family Consultant made a number of recommendations to the Court, including: (1) the appointment of a single expert witness to assess the dynamics of the mother and the father, and how this impacts J; (2) granting the ICL leave to issue subpoenas to obtain J’s relevant medical documents; (3) requesting [Dr F] to set out an interim treatment plan to be followed while the disagreement between the parties in relation to J’s diagnoses and medication is addressed and to make orders in those terms; and (4) making a non-denigration order that restrains both parties from discussing the court case or denigrating the other parent, in the usual terms.
32In the lead up to the interim hearing, both parties filed affidavits of themselves and various witnesses, including:
a)The father’s former partner and mother of L, Ms H, filed an affidavit in support of the mother, in which she detailed instances of herself, L, her other children, and J being subjected to physical and verbal family violence by the father.
b)The father’s two housemates filing affidavits in support of the father, in which they deposed as to the father’s positive relationship with J and his parenting skills.
33In the lead up to the interim hearing, the father also provided the parties with an updated paediatric report by Dr F, who is a consultant paediatrician with the [Suburb V Child Development Service] [(' Suburb V CDS')]. In summary, in his updated report Dr F:
a)Set out the history of J’s developmental concerns and earlier diagnoses.
b)Recorded that in late 2022 and early 2023 J was reviewed by him to consider his presentation of ASD, likely GDD, and ADHD; and to make recommendations around his management.
c)Aside from his direct assessments of J, Dr F’s review process also involved both parents and J’s school providing information, including through the completion of standardised questionnaires.
d)Dr F opined that J demonstrated significant delay in the foundations of: (1) learning domain, (2) language and communication domain, and (3) personal–social-emotional domain, which was consistent with a diagnosis of GDD. During the assessment J was also noted to display hyperactive behaviour, distractibility, difficulty staying on task and other behaviours consistent with ASD and ADHD.
e)Dr F concluded that J met the criteria for ASD, ADHD-combined type, and GDD; and the child was at risk of an intellectual disability. Dr F recommended that J would benefit from a stimulant medication, and that prescribing such medication is appropriate and recommended.
34On 8 May 2023, the parties attended mediation in the Supreme Court defamation proceedings commenced by the father against the mother. The parties reached a negotiated settlement at mediation, which involved the mother making written apologies, in which she acknowledged that:
a)She had made allegations to the Department in August 2022 in relation to J being physically abused by the father.
b)She had disclosed the nature of the allegations and the Departmental investigation to named third parties.
c)She accepted the Department’s conclusion that J was not at risk of physical abuse by the father.
d)She accepted that J has not been physically abused by the father.
35On 18 May 2023, at or shortly after handover, the father alleged that J disclosed to him that: “Mummy hit me” … “mummy smack me in my room”. When the father asked: “where did mummy smack you”, J indicated that the mother had smacked his arms, legs, tummy, neck, and head. The father subsequently took J to the Rockingham Hospital Emergency Department and made a report to the Department. It was common ground that the father did not contact Ms Q about the matter.
36On Sunday, 21 May 2023 at 7:43pm, Ms Q sent the father and the mother’s solicitor an email enclosing her Minute of Proposed Orders for the interim hearing listed before the presiding Magistrate on 22 May 2023. In the Minute, Ms Q proposed:
a)Until further order the mother have sole parental responsibility for all medical and/or health related decisions regarding J.
b)The mother consult with Dr F and/or any other allocated paediatrician with the Suburb V CDS in relation to the ongoing treatment and/or management of the child’s diagnoses/potential diagnoses, including but not limited to GDD, ASD, ADHD, and intellectual disability.
c)The parties comply with any treatment plan prepared by Dr F or other Suburb V CDS paediatrician.
d)Specific arrangements for the parties, the ICL, and J’s school to receive a copy of the treatment plan and for the school to be authorised to give J medication in accordance with the treatment plan.
e)The father be at liberty to engage with J’s healthcare providers once per calendar year and/or in accordance with the provider’s recommendations.
f)The father be restrained by injunction from attending any medical/health related appointments made for J or attending any medical or healthcare facility on the day of J’s appointments at those facilities.
g)Specific orders in relation to the parties giving notice to the other in relation to various health matters concerning J, including specific arrangements if J was hospitalised.
h)Both parties be restrained by injunction in relation to various matters, including but not limited to changing the child’s school enrolment, using physical discipline methods to discipline the child, discussing the proceedings with or in earshot of the child and a non-denigration order.
37On 21 May 2023, the father swore a Form 4 Notice, (which was accepted for filing on 22 May 2023 and then served by the father on the ICL and the mother’s solicitor by email on 22 May 2023). The Notice set out J’s alleged disclosures on 18 May 2023 and the father’s subsequent actions. In particular, the father deposed at paragraphs 9 and 10 of the Notice that:
9.I raised my concerns with Department of Communities that I was not comfortable with handing [J] over to his mother on Sunday 21 May 2023 at usual handover time of 6pm, because I feared for his safety and do not want to risk putting him in a dangerous environment where he could be harmed further by physical abuse. The Department advised that I write to the court and give my explanation as to why I will not be handing [J] over.
10.On this basis I have withheld [J] from handover until what has been reported by [J] to me and the medical staff at Rockingham hospital, has been investigated by Department of Communities Child Protection team and other child abuse.
38However, at paragraph 17 of his affidavit sworn on 21 May 2023 (again accepted for filing and served on 22 May 2023), the father gave a slightly different version of his evidence in this regard, when he deposed that: “At the advice from Department of Communities I will be withholding [J] from handover today, Sunday 21 May 2023”.
39On 22 May 2023, the father attended court with his friend, Mrs Castellanos. Prior to the hearing commencing, Ms Q and the father had a discussion outside the courtroom in the presence of Mrs Castellanos. Once the matter was called in court, the transcript reveals that:
40 Firstly, the mother’s lawyer Mr E, the father, and Ms Q all took the opportunity to make submissions to the Magistrate about the future progress of the matter, (including dealing with the father’s reluctance to comply with the order made on 2 November 2022 for him to file a financial statement, due to his privacy concerns).
41 Secondly, Ms Q provided the Magistrate with a brief update of recent developments, including stating that:
This morning the father has filed a form 4 and an affidavit. Long story short, the child – the father alleges that the child has reported being physically disciplined by the mother. The child was then taken to the father’s home and later taken to emergency. There is a report – an ER report attached to the father’s affidavit that says the child was not injured but did say, “Yes, mum smacked me” or something to that effect.
There’s not any injuries, the father has retained the child. He was due to be returned to mum at 6 o’clock yesterday. When I’ve asked the father today where the child is at the moment, he has indicated that he’s not at school but he’s not prepared to provide any additional information about the current whereabouts of the child except to say that he’s not planning to return him. The contents of the affidavit are really quite concerning particularly in light of the recommendations and the comments made in the CAC report.
The timing of this alleged disclosure by the child, being the Friday before the matter is next in court, it’s quite – the information contained in the father’s document gives me – sorry – considerable concerns for the child’s welfare and the allegations of family violence that have been made regarding the father.
42 Thirdly, Mr E advised the Magistrate that the mother strongly denied the father’s allegations and indicated her view was that the allegations only arose after the parties had a dispute earlier in the week about handover times.
43 Fourthly, the father made a number of submissions to the Magistrate in response, including refuting Ms Q’s version of part of their discussion prior to coming into court. Instead, he maintained that he told Ms Q that J was currently “at home with a friend”, and that he was not prepared to disclose their identity to the ICL.
44 Finally, although Ms Q told the Magistrate that she sought that J be returned to the mother’s care immediately, the Magistrate did not make the order as sought by the ICL. Instead, the Magistrate made urgent orders for the provision of further information from the WA Police and the Department, and otherwise adjourned the proceedings for further hearing on 25 May 2023.
45On 23 May 2023 the mother filed a Form 2 seeking recovery orders for the child.
46On 23 May 2023, the Department provided a further written Memorandum to the Court, referring to its earlier Memoranda to the Court and then advising that:
On 07 February 2023 the Department received a contact from the father, [Mr Stanhope] (“[Mr Stanhope]”) reporting concerns for [J] in the care of the mother, [Ms Stanhope] (“[Ms Stanhope]”). [Mr Stanhope] alleged [Ms Stanhope] made false allegations against him in Family Court proceedings, that she prevented his contact with [J], that she walked away from [J] at school, and that she prevented him from attending a medical appointment for [J]. The Department noted that Family Court proceedings were underway to resolve custody issues in relation to [J] and determined the concerns did not meet the threshold for further Departmental involvement and the contact was closed with no further action warranted.
On 19 May 2023 the Department received a contact from [Mr Stanhope] reporting concerns for [J] in the care of [Ms Stanhope]. It was alleged [Ms Stanhope] hit [J] multiple times, he advised that [J] had undergone a medical check and reportedly no injuries were noted. [Mr Stanhope] advised there were ongoing Family Court proceedings and that he did not want to return [J] to [Ms Stanhope]’s care due to the concerns. The preliminary assessment remains open at this juncture.
47On 24 May 2023, the mother sent an email directly to the ICL (with a copy to her lawyer but not to the father) (the mother’s Email) as follows:
This is [Ms Stanhope] [J]’s mum. I received a text message reminder from his school that he is not been attending his class and therapies since Monday 22nd of May until today. (please see attached below).
[Mr Stanhope] continue to withhold [J] since last Thursday 18th of May when he pick him up from school.
I also received a call from DCP this morning around 11:30am and they conduct their interview.
48Ms Q did not respond to the mother’s email, but later that same day, Mr E sent an email to the ICL and the father referring to the mother’s direct communication with Ms Q and informing that he had requested the mother not to do so in the future; and that he had confirmed with the mother the protocol that any correspondence and communication with her needs to be via her solicitor.
49The parties, Mr E, and Ms Q were all present in the court precincts prior to the commencement of the court hearing on 25 May 2023. The father’s undisputed affidavit evidence (after he arranged to view the relevant CCTV vision) was that:
a)Ms Q spoke to Mr E and the mother at 10.30am for 41 seconds and then again at 10.43am for approximately 4 ½ minutes, before Ms Q walked into court.
b)Ms Q did not speak directly to the father, but walked past him as she went in and out of the court room at 10.29am, again at 10.30am, and again at 10.47am.[2]
[2] The father’s affidavit evidence in this regard was generally accepted by the ICL (at paragraphs 2 and 3 of the ICL’s written submissions filed on 19 September 2023) and also accords with my view, having also watched the relevant CCTV footage.
50The transcript for the hearing on 25 May 2023 reveals that Mr E, the father, and Ms Q all took the opportunity to make submissions to the Magistrate about the mother’s recovery order application – and in the case of the father, quite lengthy submissions covering, inter alia: (1) his concerns for J’s safety in the mother’s care; (2) his concerns about the current state of J’s relationship with the mother; (3) his relationship with J; (4) the recent dispute between himself and the mother about handover times and his view that the dispute evidenced the mother’s malicious intent towards him; (5) his history of involvement in the child’s school routine; (6) his concession that he had not taken J to school that week (and accordingly the child had missed some therapy sessions); and (7) his concerns that the mother had subjected J to domestic violence by way of making statements to third parties (in the child’s presence) that were the subject of the Supreme Court defamation proceedings.
51The Magistrate delivered an ex-tempore judgment and then made orders that:
a)By no later than 5pm that day, the father cause J to be delivered up to the mother’s care.
b)A recovery order issue but lay in the Registry pending compliance by the father.
c)Until further order the mother be restrained by injunction from physically chastising the child or causing or permitting any third party to do so.
52On 25 May 2023, the father then filed the discharge application, which was initially listed for directions before the presiding Magistrate on 2 June 2023.
53On 26 May 2023, the father emailed the ICL requesting that she disclose all communications to which he had not been a party. On 30 May 2023, Ms Q provided the father with a copy of the mother’s email.
54On 2 June 2023, the presiding Magistrate made a number of orders, inter alia, in relation to the discharge application, including for the filing of responding documents and for the matter to be listed for determination before me. The matter was originally listed before me on 14 July 2023. Unfortunately, due to my falling ill, that hearing was vacated, and the matter was relisted for hearing before me on 21 August 2023. In the meantime, the father filed a further affidavit on 12 June 2023, flagging his intention to seek an order that I recuse myself from hearing the discharge application.
55On 17 July 2023 Dr F provided a further, updated report in relation to J. The salient parts of the report were as follows:
a)J’s current problems were identified as: ASD, GDD, ADHD-combined, hyperactivity, and expressive and receptive language delay.
b)Questionnaires completed by J’s school teacher, occupational therapist and speech pathologist documented significant ADHD criteria, including inattentive and hyperactive features. The results were consistent with previously completed questionnaires.
c)Dr F recommended and supported a retrial of stimulant medication for J’s ADHD. In particular: he recommended that J “be commenced on methylphenidate (immediate release Ritalin) at a dose of 5mg twice daily initially. This should be given between 7AM in the morning and 8AM in the morning with breakfast and prior to attending school with the second dose given 3-4 hours later – either at recess or lunchtime.”
d)Dr F also recommended that the medication be given on weekends, at least initially, and with the ongoing need to be reviewed at a later date.
e)Dr F recorded that the plan to start stimulant medication will be “next week pending both parents reviewing this letter and agreeing so that a court adjudication is not required”.
56Although the mother’s solicitor sought written confirmation from the father on 18 July 2023 that he agreed to Dr F’s plan, the father had not replied as at the date the mother swore her affidavit on 17 August 2023.
57At the hearing on 21 August 2023, the father made an oral application for me to recuse myself. That application was dismissed. I refer to my ex-tempore reasons for decision delivered on 21 August 2023 in that regard.[3]
[3] Stanhope and Stanhope [2023] FCWA 174.
58At the hearing on 4 September 2023, the father, Mr E, and counsel for the ICL all made submissions in relation to the discharge application, and I then reserved my decision. As I have already set out above, I subsequently made further directions in relation to the viewing of the CCTV footage and the filing of further written submissions in relation to the topic of the relevant CCTV footage.
LEGAL PRINCIPLES
59In making my determination, I respectfully agree with and adopt the summary of the law by Tyson J in Stanko & Taylor [2021] FCWA 110 at [79] – [89] (inclusive). For the benefit of the parties, I set out the relevant paragraphs as follows:
Discharge of an ICL
79.There is no suggestion that the Court does not have the power to remove an ICL.
80.The ICL referred the Court to the decision of Justice Murphy in Knibbs & Knibbs [2009] FamCA 840 in which His Honour provided a helpful review of the relevant case law concerning discharge of an ICL.
[33] It was said by the Full Court as long ago as 1980 that:-
“It is the duty of counsel representing the child to place before the court the wishes of the child (see Boseley v Lyons (1978) 4 FamLN 17…) but in my opinion, unlike counsel appearing for a party who is sui juris and who must put his client’s instructions and argue his client’s case, counsel appointed to represent a child under the provisions of s.65 is as much charged with the duty of making submissions and conducting his case as to reveal those matters which are in the best interests of the child as is the trial judge to seek them out among the evidence and to weigh them up. To this extent therefore, I think that it was proper for counsel for the child, notwithstanding his expressed wish to the contrary, to submit that it is not in his best interest that his wishes be acceded to by the court”.
(In the Marriage of Wotherspoon & Cooper (1981) FLC 91-029 at 76,282)
[34] Some ten years after the decision of the Full Court in Wotherspoon & Cooper, another Full Court in In the Marriage of Bennett (1991) FLC 92-191 made a similar point, emphasising that an ICL (then a “separate representative”) is not bound to make submissions on the instructions of the child. The court said (at FLC 78,259):-
“…it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the child (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must of necessity, form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duties to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative…”
[35] In In the Marriage of Harris [1977] FLC 90-276 at 76,476, Fogarty J said this:-
“It appears to me that [the Independent Children’s Lawyer] occupies the position of an advocate appearing for a particular party in the litigation although it is the role of advocacy having about it certain unusual features including: (i) that he is not appointed by the party whom he represents; (ii) that he may not be removed by that person; and (iii) that he does not necessarily advance what the client wants but was in his view is in the best interest of that “client” and to that extent exercises an independent judgement quite out of character with the position ordinarily occupied by an advocate”.
[36] In Pagliarella [1993] FamCA 64… Hannon J was asked to discharge the Independent Children’s Lawyer because she “… Reached a conclusion at a very early stage and without being in possession of all the evidence and that she lost her “objectivity” and therefore she could not represent N’s interests”.
[37] In rejecting that conclusion, His Honour held (at 695):-
“it is true that [the Independent Children’s Lawyer] states in her affidavit that she concluded that the husband had continued to pressure [the child] and that her wishes were as a result of that pressure and the manipulation of the husband and it is that conclusion with which counsel for [the child] and for the husband join issue with her.
In my opinion [the Independent Children’s Lawyer] was entitled to reach that conclusion. The substantive proceedings being for a discharge of an earlier order, it was appropriate for [the Independent Children’s Lawyer] to have regard to the reasons of the court for the making of that order. In fact she would not have been able to properly carry out her function of investigating the file without reading those reasons. Having done so, she was able to identify the issue or issues which would be of significance in the presence substantive proceedings. The next step was to consider whether the findings of Treyvaud J as to the part played by the husband in the formulation of N’s wishes were still applicable. In doing so she properly had regard to the material at her disposal which included the interviews she had with N and the husband and the wife…”
[38] Each of the parties in these proceedings relied upon the decision of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. In that decision, His Honour referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.
[39] The reasons why that is so, as identified by His Honour include:-
A court should treat allegations of lack of impartiality with caution. To do so otherwise would leave every separate representative 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 the child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take all 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 child representative remove simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought to be given to removing a child representative”.
81Murphy J later said, at [40], that he respectfully disagreed only with the last proposition of Holden CJ in relation to a requirement that there be actual bias.
82 Dawe J in Langmeil v Grange (No 3) [2011] FamCA 171 reviewed some of the authorities cited by Murphy J, in addition to the decision of Chisholm J in T and L (2000) FLC 93-056 and W & M and Anor [2006] FamCA 512. At [30] Her Honour said:
The authorities upon which I rely include the judgement of Chisholm J, as he then was in T v L (2000) FLC 93-056…. That decision has subsequently been referred to with approval by the other Judges of the Court. The Full Court in the matter of W and M and W [2006] FamCA 512 (a decision of the Chief Justice and Warnick and May JJ in 2006) relied upon the decision of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 and his Honour’s decision of T v L (supra). They said, quoting Chisholm J:
An application to remove a child representative is not strictly covered by the principle that the child’s best interests must be treated as the paramount consideration. Those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove such a risk representative merely because a litigant has taken the view that the representative is acting contrary to that litigant’s position or from that litigant’s point of view, contrary to the child’s best interests.
Apprehended Bias
83The other relevant authorities relate to the issue of apprehended bias, in light of the mother’s allegations. While much of the case law in relation to apprehended bias involves judicial officers, I am satisfied that the principles are equally applicable in relation to the current application, with respect to the ICL.
84 The High Court in Johnson v Johnson (2000) 201 CLR 488 sets out the test for apprehended bias, which has been restated by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, as follows:
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained “(t)he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.
[33] Because the test is objective it is important to keep an enquiry about apprehension of bias distinct from any enquiry about actual bias. An enquiry about actual bias in the form of pre-judgement would require assessment of the state of mind of the judging question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an enquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias”.
(citations omitted)
85 The application of the apprehended bias test is an objective one. The High Court has cautioned about the need to be precise and not to conflate consideration of actual bias and apprehended bias. The High Court said in Michael Wilson (supra) at [67] that:
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgement delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgement” impermissibly confuses the different enquiries that the two different allegations (actual bias and apprehended bias) required to be made. And, no less fundamentally, an enquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side arguments or otherwise, demonstrates prejudgement.
(citations omitted)
86I also refer to the comments by Kirby J in Antoun v The Queen (2006) 80 ALJR 497, where his Honour said:
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL: Ex parte CJL, this Court has “loudly and clearly” expressed a corrective against any view that a judge should to readily accept a recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
(citations omitted)
87Applying this principle to an application to discharge an ICL, in my view, the Court should be similarly cautious to accede too readily to such applications. I consider this is especially so in matters where, as in the present case, the issues relied upon relate to process, as opposed to substantive issues that are yet to be determined at trial.
Role and Responsibilities of an ICL
88For the benefit of the parties, I consider it helpful to set out what the role and responsibilities of an ICL are. Section 165 of the Act sets out in some detail the role and responsibilities of an ICL. Section 165(2)(a) refers specifically to the ICL forming “an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child”. Section 165(5) requires the ICL to act impartially in dealing with the parties. These matters, among others, have an obvious focus and object, certainly in the process and primary focus, to assist the Court in exercising its ultimate responsibility to make orders that are in the child’s best interests, having regard to the requirements of section 66A of the Act.
89It is clear that while the ICL is in a “unique position”, they have the same professional obligations owed to the court and fetters on their behaviour that any legal practitioner has. There are a number of bases upon which an ICL can be discharged for failing to carry out their task properly for any number of reasons, including where:
• the evidence shows that the ICL has deliberately misled the court;
• the ICL has behaved in an unethical or unprofessional way;
• the ICL has acted contrary to the child’s interests;
• the ICL has shown bias against a party;
• the ICL has acted incompetently; and
• there is a conflict of interest.
60Although Stanko & Taylor was an application brought under the Family Court Act 1997 (WA) it is equally applicable to the present application under the Family Law Act 1975 (Cth).
DISCUSSION AND CONCLUSIONS
61I intend to deal with each of the father’s main bases in turn.
Did the ICL deliberately mislead the Court?
62The father maintained that Ms Q deliberately misled the Court on 22 May 2023 about their conversation in the court precincts before the hearing. Both the father and Mrs Castellanos gave evidence as to their recollections of the conversation. I observe in this regard that although their evidence was quite similar, there were some variations between them.
63On the other hand, Ms Q specifically denied the father’s and Mrs Castellanos’ version of the conversation that took place outside the courtroom and in her affidavit, deposed that when she asked the father whether J was at school, the father replied with words along the lines of: “Well I’m not telling you where he is, but no he’s not at school.” When she then asked who was looking after J, the father responded with words along the lines of: “I am not telling you who it is, but he’s with a family friend.” Ms Q also deposed that the father appeared somewhat agitated and hostile during the conversation, including shaking and clenching his jaw.
64Given the disputed evidence between the father and his witness on the one hand, and Ms Q on the other hand, I am not persuaded that the evidence establishes that Ms Q deliberately misled the Magistrate about the conversation.
65The father also suggested that Ms Q minimised the alleged abuse to the Magistrate on 22 May 2023 by describing it as “smacking”, including deposing that “at no time had anyone involved in witnessing the report of abuse of [J] mentioned “smacking”. However, I am satisfied that the father’s evidence in this regard was itself misleading, given: (1) the father’s own evidence that both he and J used the word “smack” when J made the alleged disclosure; and (2) the use of the word “smack” in the hospital report annexed to the father’s affidavit of 21 May 2023.
Apprehended bias / conflict
66The father maintained that given Ms Q’s involvement as a committee member of Association A, a fair-minded lay observer might reasonably apprehend that Ms Q might not bring an impartial and unprejudiced mind to her role as an ICL and there was a conflict of interest in Ms Q acting as an ICL.
67Ms Q readily acknowledged that she is a committee member of Association A. However, she denied that her association with Association A could lead a fair-minded lay observer to reasonably apprehend that she might not bring an impartial and unprejudiced mind to her role as an ICL in the matter, or that there is a conflict of interest in her acting as an ICL. In his submissions, Mr E concurred with the ICL’s position and noted that if the father’s submission was taken to its logical extreme, no female legal practitioner associated with Association A could ever be appointed as an ICL in a parenting matter.
68The father’s submission in this regard was largely the same as the basis for him unsuccessfully seeking that I recuse myself. In my recusal decision, I stated at paragraphs 13 to 16 as follows:
13.Turning to the father’s submissions that were relevant to the determination of the issue:
14.Firstly, the father submitted that the Association engaged in unlawful discrimination, contrary to the Sex Discrimination Act 1984 (Cth), being a Commonwealth Act. Having regard to section 39 of that Act, I am satisfied that the father’s submission in this regard is not correct.
15.Secondly, the father submitted that membership by a judicial officer of the Association inevitably diminishes public confidence in the admission of justice and the impartiality of the judiciary and gives rise to questions of impartiality on the basis that the Association discriminates against men. In this regard, the father specifically pointed to the objects of the Association, which were published on their website.
16. In my view, the father’s submission in this regard was entirely misconceived. The fact that the father asserts that the Association has, as its objects, inter alia, the protection of the interests of women, the prevention of discrimination against women and access for women to justice does not, thereby, mean that it discriminates against men. The father did not point to any logical connection between my association with [Association A] and his fears that I would determine the discharge of the Independent Children’s Lawyer issue other than on its merits. I am not persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the matter due to my association with [Association A].
69Likewise, the father did not point to any logical connection between Ms Q’s association with Association A and his fears that Ms Q was biased against men (including himself) and would not act impartially in the case. Further, in my view, the father was unable to identify any real, actual, objective conflict between Ms Q’s association with Association A and her role as an ICL.
70Although the father pointed to other instances which he asserted demonstrated that Ms Q may be biased against him, I am not so persuaded. For example:
71 Firstly, the father complained that Ms Q did not introduce herself to him in the court precincts before the aborted Case Assessment Conference on 24 February 2023, and again did not introduce herself to him in the court precincts before the rescheduled Case Assessment Conference on 28 March 2023. However, the mother’s evidence was that Ms Q also did not introduce herself in the court precincts prior to the first Case Assessment Conference and she did not meet Ms Q in person until just prior to being called into court on 25 May 2023. Ms Q’s evidence was that:
a)On 24 February 2023, she did not know either the father or the mother and it was her usual practice to introduce herself to the parties during the Case Assessment Conference, rather than before, particularly where one party is self-represented.
b)On 28 March 2023, Ms Q introduced herself to the father at the start of the conference, which started slightly late, but she was unable to personally introduce herself to the mother, who was not then in attendance.
72In my view, there was nothing improper in Ms Q adopting such a practice and am not persuaded it demonstrated that Ms Q may be biased against the father.
73 Secondly, the father complained that at the rescheduled Case Assessment Conference, Ms Q was “cold, unfriendly and appeared to have already made an opinion of me”. Aside from the father’s broad assertions in this regard, there was simply no cogent evidence from which I could conclude that Ms Q may be biased against the father or otherwise acted inappropriately towards him.
74The father also complained that prior to the hearing on 25 May 2023, Ms Q walked straight past him without acknowledging him on three occasions. Again, I am not persuaded that such conduct evidenced that Ms Q may be biased against the father. On the other hand, Ms Q may have understandably chosen not to verbally communicate with the father outside of the courtroom or otherwise in writing, given the father’s and Ms Q’s differing recollection of their earlier discussion outside the courtroom on 22 May 2023.
75 Thirdly, the father maintained that prior to the Case Assessment Conference on 24 February 2023, he observed Ms Q to sit and chat to the mother’s lawyer “as though they were close acquaintances”. On the other hand, Ms Q’s evidence was that on that morning, she had no recollection of talking to the mother’s lawyer at all and could not recollect who actually attended on behalf of the mother. The mother’s evidence was that she attended the court that morning with her lawyer, they sat together, she never observed her lawyer to speak to Ms Q and she did not meet Ms Q on that occasion. The father also maintained that prior to the Case Assessment Conference on 28 March 2023, he again observed Ms Q talking to the mother’s lawyer. On the other hand, Ms Q’s evidence was that she spoke briefly to Ms R about another matter unrelated to these proceedings and then moved away to take a phone call. She did not speak with Ms R again until the conference started. The father also referred to Ms Q speaking to Mr E briefly in the court precincts prior to the court hearing on 25 May 2023. However, aside from the father’s suspicions and beliefs about the nature of these conversations, there was simply no cogent evidence that could lead me to conclude that there was anything concerning or improper in Ms Q’s behaviour and/or conversations with the mother’s lawyers.
76 Fourthly, the father maintained that the fact that Ms Q “sided” with the mother demonstrated that Ms Q may be biased against him, including but not limited to Ms Q: (1) proposing in her Minute filed on 22 May 2023 that the mother have interim sole parental responsibility for J in relation to medical / health related issues; and (2) making submissions about various matters to the presiding Magistrate that were supportive of the mother’s position. He was also highly suspicious of the timing of Ms Q emailing him and the other parties her Minute, which apparently was sent approximately two hours after the father told the mother he was retaining J in his care. Ms Q specifically denied that she had any prior communications with the mother about the content of the Minute before preparing it and denied that she was aware that the father had decided to unilaterally retain J in his care.
77I am not satisfied that Ms Q acted improperly because she took a different view to that of the father in relation to various issues; or because Ms Q’s view coincided with the mother’s position in some respects. The ICL has statutory obligations which are set out in s 68LA of the Family Law Act 1975 (Cth) (the Act). Pursuant to s 68LA(2) of the Act, the ICL is required to form an independent view, based on the available evidence, of what is in the child’s best interests and act in relation to the proceedings in what she considers to be the best interests of the child. She is further bound by s 68LA(3) of the Act, if satisfied that the adoption of a particular course of action is in the best interests of the child, to make a submission to the Court suggesting the adoption of that course of action.
78Pursuant to s 68LA(5) of the Act the ICL also has a duty to act impartially in dealings with the parties. That does not mean that Ms Q’s independently formed views might not coincide with those of one party and run counter to the views of the other party. The forming by an ICL of an independent view which runs counter to the case of one party does not indicate bias against that party, or a failure to act impartially in dealings with the parties.
79In short, Ms Q was and is entitled to form an independent view of what is in the child’s best interests, based on the evidence available to her, including but not limited to: (1) the Case Assessment Conference report and (2) Dr F’s reports. The fact that Ms Q’s view did not accord with that of the father does not thereby mean that she was not acting impartially and was biased in favour of the mother.
Did the ICL act incompetently and/or in an unprofessional way?
80The father pointed to instances which he asserted demonstrated that Ms Q had acted incompetently and/or in an unprofessional way. However, I am not so persuaded. By way of examples:
81 Firstly, the father appeared to suggest that Ms Q was responsible for the Case Assessment Conference having to be vacated on 24 February 2023, as she had to attend other court commitments later in the day. However, I am not so persuaded. In her affidavit, Ms Q deposed that at approximately 9.40am she met with the replacement Family Consultant, [Ms P], to discuss whether to proceed with the conference that morning and was informed by Ms P that she had not had sufficient time to prepare for the conference. Ms Q told Ms P that she did have other matters in court later that morning and that her ability to now engage in the CAC was limited, given the significant time delay that had occurred. If Ms P had considered that she was in a position to properly conduct the conference that day, then it would have proceeded even if Ms Q was unavailable. The Family Consultant, not the ICL, has the responsibility for the carriage of the conference and preparing the report.
82 Secondly, the father complained that at the Case Assessment Conference on 28 March 2023, Ms Q left approximately 20 minutes before his interview with the Family Consultant had concluded. Again, I am not persuaded that Ms Q’s decision to leave the conference before the father’s interview ended demonstrated that she had acted incompetently or otherwise in an unprofessional manner. Again, it is the Family Consultant, not the ICL, who has responsibility for the carriage of the conference and preparing the report.
83 Thirdly, the father submitted that Ms Q did not perform her primary duty when children report physical abuse to “believe the child” in the first instance. The father did not point to any cogent authority in support of his proposition. As I have earlier observed, one of the complexities of this matter is that there may be other plausible explanations for J making the various disclosures about both his parents, particularly having regard to the ongoing conflict and mistrust between the parties and J’s significant developmental issues.
84 Fourthly, the father submitted that there may have been direct communications between the mother and Ms Q, based on him not initially being sent a copy of the mother’s email. In that regard, it was clear that it was the mother, not Ms Q, who initiated the communication. The mother’s evidence was that she has not attempted to communicate directly with Ms Q since. In her affidavit, Ms Q denied ever communicating directly with the mother other than in the presence of the mother’s solicitor; and confirmed that her practice is never to provide parties with her mobile telephone number or send them text messages. I am not satisfied that there was any cogent evidence of improper communications between the mother and Ms Q.
85 Fifthly, the father complained that Ms Q did not respond to some of his emails. However, there was little, if any, evidence as to the circumstances surrounding, and content of, the emails, including whether any response was warranted. There was also some evidence to suggest that at times, the father sent Ms Q multiple emails within a short period of time, including late at night. In the circumstances I am not persuaded that Ms Q acted incompetently or unprofessionally in this regard.
86 Finally, to the extent that the father complained about Ms Q acting improperly in not making submissions to the presiding Magistrate about matters which he considered she should have raised, I am not so persuaded. In my view, the father seemed to approach the issue from a fundamental misunderstanding of the role of the ICL and instead, on the basis, inter alia, that he was entitled to give instructions to the ICL as to: (1) what enquiries should be made; and (2) what views Ms Q should form in relation to the best interest considerations. Ms Q does not act for the father or for the mother in the proceedings. The father, as a party in the proceedings, is able to, and did, make his own submissions to the presiding Magistrate in relation to matters that he considered relevant to the issues in dispute during the various hearings.
Acting contrary to the child’s interests
87In reality, the father’s submission that Ms Q was acting contrary to J’s best interests was based on the fact that Ms Q did not agree with his position as to what was in the child’s best interests. In my view it would be quite wrong for the Court to remove Ms Q in this case simply because the father has taken the view that the ICL is acting (1) contrary to his position; or (2) from the father’s point of view, contrary to the child’s best interests.[4] In short, I am not persuaded that the father pointed to any cogent evidence that could lead me to conclude that Ms Q has acted contrary to the child’s interests.
[4] T and L (2000) FLC 93-056; W & M and Anor [2006] FamCA 512; Langmeil v Grange (No 3) [2011] FamCA 171.
88I intend to dismiss the father’s application for the discharge of Ms Q as the ICL in this matter.
89Turning to the remaining orders sought by the father:
a)The father did not identify any other cases in which he is currently a party or indicate that he had given notice to any other parties involved in such cases. Further, even if he had done so, having regard to my findings above, I am not persuaded that there is any proper basis for the Court to “ban” Ms Q from being appointed as the ICL in such matters. Accordingly, I intend to dismiss this aspect of the father’s discharge application.
b)Even if the Court had power to ban Ms Q from acting as an ICL in any case, having regard to my findings above, I am not persuaded that there is any proper basis for the Court to do so. Accordingly, I intend to dismiss this aspect of the father’s discharge application.
c)Ms Q disclosed the mother’s email and otherwise denied there were any other direct communications between them. The father did not seek to pursue this matter any further at the hearing, and accordingly, I also intend to dismiss this aspect of his discharge application.
ORDERS
90I intend to make the following order: The father’s Form 2 application filed on 25 May 2023 be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate
27 SEPTEMBER 2023
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