STANKO and TAYLOR

[2021] FCWA 110

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: STANKO and TAYLOR [2021] FCWA 110

CORAM: TYSON J

HEARD: 11 JUNE 2021

DELIVERED : 18 JUNE 2021

FILE NO/S: PTW 754 of 2016

BETWEEN: MRS STANKO

First Applicant

AND

MR STANKO

Second Applicant

AND

MS TAYLOR

First Respondent

AND

MR STANKO JUNIOR

Second Respondent

Catchwords:

FAMILY LAW – Application to discharge the Independent Children’s Lawyer – Consideration of obligations and duties of an Independent Children’s Lawyer – Where the Court is not satisfied the circumstances warrant the discharge – Application dismissed – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

First Applicant	:	Mr I
Second Applicant	:	Mr I
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms Z

Solicitors:

First Applicant	:	Law Firm B
Second Applicant	:	Law Firm B
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Law Firm A

Case(s) referred to in decision(s):

Antoun v The Queen (2006) 80 ALJR 497

Johnson v Johnson (2000) 201 CLR 488

Knibbs & Knibbs [2009] FamCA 840

Langmeil v Grange (No 3) [2011] FamCA 171

T and L (2000) FLC 93-056

W & M and Anor [2006] FamCA 512

TYSON J:

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 Stanko & Taylor and Anor has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1Before the Court is the application of the mother seeking the discharge of the Independent Children’s Lawyer (“the ICL”). The application is opposed by the ICL, the paternal grandparents and the father.

WHAT IS THE EVIDENCE RELIED UPON?

2The mother relies on her affidavit filed 31 May 2021. The paternal grandparents rely on the affidavit of [Ms A] filed 9 June 2021. The ICL relies on her affidavit filed 9 June 2021. The father has not elected to file any documents, however in his oral submissions, he opposed the discharge of the ICL.

3I have read and carefully considered all of the evidence. I have also had the benefit of hearing submissions from each of the parties. As I explained during the hearing, I am unable to make findings of fact where the evidence is in dispute. That will be the task of the trial judge, who will have the benefit of hearing the evidence be tested, by way of cross‑examination. I do not intend to refer to all of the evidence, because it is not practical or necessary to do so. Where I do not refer to part of the evidence, it should not be assumed that I have ignored it, or that I have overlooked it.

4The mother is a self-represented litigant. After receipt of her application, I arranged for the Principal Registrar to provide her with copies of ss 164 and 165 of the Family Court Act 1997 (WA) (“the Act”), which the mother acknowledged receipt of.

5At the commencement of the hearing, I spent some time explaining to the mother the relevant law and factors to be taken into account in determining her application. I considered it was appropriate, and procedurally fair to do so.

WHAT IS THE BACKGROUND TO THE APPLICATION?

6The mother was born [in] 1989. She is a 31-year-old Aboriginal woman, who is a full-time homemaker and parent. She lives in an undisclosed location.

7The father was born [in] 1984. He is 36 years of age and lives in [Suburb A] with his brother.

8The parents have one child, [Child A] born [in] 2016. Child A is five years of age.

9The parents had an on again off again relationship, between 2014 and 2016. There is some controversy about whether the parents continued their relationship while the father was incarcerated, which cannot be determined at this time.

10The father was charged with multiple offences, arising from an incident in 2017, including sexual penetration of a child, a threat with intent to compel the doing of an act, and stupefying to commit an indictable offence. The victim was an 11-year-old child. [Court A] found the father guilty of a number of the offences, including of sexual penetration of a minor, for which he was sentenced three and a half years in prison. [In] 2020, the father was released on parole.

11The paternal grandparents, [Mr and Mrs Stanko], are the Applicants in the substantive proceedings. Mrs Stanko is 62 years of age and employed as a manager. Mr Stanko is 63 years of age and is self‑employed. They live in [Suburb B].

12The paternal grandparents say Child A lived with them from April 2016, and the mother had limited contact. Child A remained in their care, following the father’s arrest and incarceration. The mother says that she lived on a full-time basis with the paternal grandparents from 2018, apart from periods when she stayed with her mother. It is not in dispute that the paternal grandparents were Child A’s primary carers between 2016 and 2018.

13In January 2020, the mother removed Child A from the paternal grandparents, who then commenced proceedings seeking urgent orders for her return. They raised a multitude of concerns about the safety of Child A in the mother’s care, noting the Department of Communities (“the Department”) had removed two of the mother’s other children, from her care.

14When the matter first came before the Court, the Department advised they were conducting an investigation into Child A’s wellbeing, given the father’s offending history, his recent release, and the Department’s concern that the paternal grandparents’ lacked insight into the father’s offences.

15The Department sighted Child A and the mother [in late] January 2020, and recommended Child A remain in her mother’s care, pending completion of their investigation, notwithstanding the fact they accepted the paternal grandparents had been Child A’s primary carers.

16On 31 January 2020, orders were made for the appointment of a senior ICL.

17In February 2020, the father filed his responding documents, supporting the application of his parents. The mother filed her responding documents, seeking orders for Child A to live with her, spend supervised time with the paternal grandmother only, and injunctions restraining Child A from having any contact with the paternal grandfather and father, pending completion of investigations by the West Australian Police and the Department.

18[In] February 2020, the Department confirmed Child A had been interviewed, in relation to the disclosures of alleged sexual harm from the paternal grandfather. Child A did not make any disclosures, and the police closed their investigation. The Department continued their assessment into Child A’s safety in her mother’s care, and in relation to whether Child A should have contact with her father.

19On 19 February 2020, interim orders were made by consent, for Child A to spend time with the paternal grandmother on each Saturday from 10 am until 12:30 pm.

Case Assessment Conference

20On 14 April 2020, the parties attended a Case Assessment Conference with a Family Consultant. During the conference, the father admitted to sexually abusing an 11-year-old victim, but denied threatening [them] with a [weapon], or using drugs on [them] (offences for which he was not convicted).

21The Consultant recorded the significant risk allegations raised by each of the parties, including family violence, mental health, substance abuse, neglect and harm, describing the case as:

… complex with conflicting and inconsistent reports given and serious risks alleged. It appears the applicants and the father’s views about the mother are based mainly on historical events and they admit they have no information about her current lifestyle. However, some of the mother’s reporting was inconsistent and contradictory at times.

22The Consultant recommended the appointment of a Single Expert Witness. Both the ICL and Consultant did not recommend any contact between Child A and either the father or paternal grandfather, pending the Expert’s assessment and further information from the Department. The Consultant recommended Child A attend therapy.

Further Proceedings

23On 29 May 2020, orders were made by consent for Child A to spend time with the paternal grandfather, supervised by the paternal grandmother or [Ms B]. The mother agreed to comply with all reasonable recommendations made by her treating GP to manage any depression and anxiety, and undertake random urine analysis testing, as requested by the ICL. Subject to funding, the mother and paternal grandparents were each to undertake a hair strand test, the parents were to provide a signed authority to the ICL to allow her to obtain copies of their phone records from 27 December 2019 to date, and the father was to disclose his urine analysis testing, as required by his parole conditions, to the ICL.

24Additional orders were made for Child A to spend time with the paternal grandparents from after school on Friday until the commencement of school on the following Friday, and otherwise live with the mother.

25[In] August 2020, the mother filed an application, seeking to discharge those orders, pending completion of a police investigation. It is the mother’s case that contrary to the orders, the paternal grandfather had unsupervised contact with Child A, and that he had hit Child A. The mother says Child A made disclosures to that effect. The mother provided photographs of Child A’s injuries, and took Child A to the doctor the following day.

26[The next day], the Department confirmed they had commenced an investigation into the mother’s allegations of physical abuse. As a result, on that day, the previous interim orders for contact were suspended. The proceedings were then programmed to a further hearing in September 2020.

27The paternal grandparents sought urgent orders for Child A to live with them. They alleged there had been an agreement between the parties removing the requirement for the paternal grandfather’s time to be supervised. The paternal grandfather denied having hit Child A. The paternal grandparents questioned whether the mother had deliberately inflicted injuries to Child A, in support of her allegations.

Department of Communities

28In October 2020, the paternal grandparents filed a Notice of Child Abuse, alleging that Child A was at risk of harm due to the mother’s use of drugs and alcohol, and the mother physically injuring Child A and blaming the paternal grandfather. They asserted Child A was at risk of neglect in the care of the mother, due to her unmanaged mental health. They questioned the mother’s accommodation and capacity to provide for Child A’s needs

29[In] December 2020, the Department assessed Child A was at risk of harm as a result of sexual and physical abuse, following discussions with the mother, extended family, the West Australian Police and a child assessment interview. The Department substantiated the likelihood of harm as a result of sexual abuse, advising:

… some evidence indicates it is likely that [Child A] has experienced sexual abuse however there is not sufficient evidence to say this has definitely happened. It was noted that although some statements were made in relation to sexual abuse, these were inconsistent resulting in no further action being taken by WAPOL. However, the Department’s investigation is informed by children’s disclosures, which has also been incorporated into the rationale to substantiate likelihood of emotional harm. Additionally, [Child A] is noted to present with sadness at school, which could be a result of the abuse. Therefore, on the balance of probabilities, likelihood of harm as a result of sexual abuse has been substantiated.

30The Department recorded that the mother had sought medical attention for Child A, Child A’s injuries had been sighted by various third parties, and based on the available evidence, the Department considered the injury had likely occurred in the care of the paternal grandfather, despite his denials. The Department expressed concerns that the paternal grandfather had unsupervised contact with Child A, notwithstanding the orders requiring supervision.

31The Department considered the concerns raised by the paternal grandparents, in terms of the mother’s health and drug use, were historical in nature, and there was no current indication that the mother was not meeting Child A’s needs.

32The paternal grandparents have sought a review of the Department’s response to the Notice.

Other

33The mother and [Ms D] opposed an application by the ICL, seeking permission for the Expert and ICL to view the court file concerning the mother, her former partner [Mr C] and Ms D (PTW 6426/2012). Orders were made granting leave for inspection by only the Expert and the ICL.

34The paternal grandparents sought permission to prepare a transcript of recordings produced by the Department of Corrective Services pursuant to a subpoena, of telephone communications between the parents. They asserted the recordings were relevant in terms of the nature of the parents’ relationship while the father was in custody, the mother’s mental health, her use of drugs and alcohol, and issues of family violence. The mother opposed the application.

35Orders were made in in November 2020, permitting the Applicant’s solicitors to copy the USB drive and provide a transcript, with provision for objections to any transcript to be filed.

Paternity Testing

36[In] December 2020, the mother filed an application seeking paternity testing of Child A, raising for the first time, questions as to whether Child A was the father’s child. She sought “should the child in this matter be of no dna relation to the applicants and the second respondent the case of 754/2016 and all applications be dismissed”.

37On the same day, the mother wrote to the Court advising she was unable to attend the interim hearing on 9 December 2020 because she was undergoing a medical procedure. The interim hearing was vacated and the matter was listed into the complex track.

38[In] January 2021, orders were made by consent, for the parents and Child A, to undertake parentage testing, if practicable within 28 days. The mother and Child A did not attend testing until April 2021. The results confirmed the father was Child A’s parent.

Single Expert Witness

39On 21 May 2020, orders were made by consent appointing [Dr E] as the Expert. [In] October 2020, orders were made requiring the parties to comply with all requests to attend on interviews with Dr E, and for the mother attend for an interview with Child A, [in] November 2020.

40[In] December 2020, the mother filed an application seeking the discharge of Dr E, and the appointment of an alternative Expert. [In] January 2021, when the proceedings first came before me, I provided the mother with a copy of Part 15.5 of the Family Law Rules 2004 (Cth). Orders were made adjourning generally the mother’s application, pending publication of Dr E’s report.[1]

[1] To date, there has been no request by the mother to relist her application.

41Dr E’s report was filed [in] March 2021. Dr E was provided with the court documents and access to subpoenaed material.[2] The ICL provided Dr E with further material between November 2020 and January 2021, which included orders, transcripts of proceedings, letters to the Family Court, further affidavits of the mother, the Department’s report and the paternal grandfather’s letter to the Department. Dr E also inspected material in the mother’s previous Family Court file.

[2] Except for the material produced by [Ms G] and [Company A].

42She interviewed the paternal grandparents, the father and the mother. The mother’s interview took place over two sessions, with Dr E describing the mother’s first session was “cut short as the mother was traumatised from discussing the relationship with the father”, and she had to collect Child A. Child A was also briefly interviewed. The paternal grandparents were interviewed a second time, in light of the further allegations raised by the mother. The parties were also provided with an opportunity to send an email with additional information, which the paternal grandparents did.

43In December 2020, Dr E placed some furniture on [social media] to sell. She received a text message from “[Mr F]” which said, “well I hope you have a lovely Christmas seeing all of your family because my family are in tatters because of your lazy report merry Christmas, ps my boss knows your husband”. The message was sent by the father’s brother.

44Dr E disclosed the message to the parties and subsequently received an apology. Dr E says she does not have a husband and there is no conflict of interest, as raised by the mother.[3]

[3] In her affidavit dated 16 December 2020.

45Dr E described the parents’ relationship as volatile and toxic, marked by alleged physical and sexual harm, and excessive alcohol and drug use. She noted the conflicting accounts between the parties as to who cared for Child A, together with the competing claims in terms of mental health, alcohol and drug use and allegations of neglect and harm of Child A.

46In relation to the serious and competing risk allegations raised by each of the parties:

(a)Dr E noted the mother denied she had issues with her use of alcohol and drugs. Dr E considered she minimised her mental health issues, despite subpoena evidence. The mother was also inconsistent in her narrative regarding the relationship with the father, claiming their relationship ended prior to his imprisonment, however, the transcripts suggested their relationship continued, with the mother visiting the father in prison over 50 times. Further, there were discrepancies between the mother’s reporting and the subpoenaed material of her involvement with the police.

(b)Dr E described the father having a long history of alcohol and drug use, and offending behaviour. She found the father was forthcoming with his alcohol and drug use, but he minimised his offending behaviour, including the recent sexual offences against a child.

(c)After the father was released from prison, he spent time with Child A, unbeknown to the mother. The paternal grandparents said they supervised the contact.

(d)The mother made a number of allegations that the paternal grandparents have harmed Child A, including sexual harm and on one occasion, physical harm, resulting in Child A having a swollen face and puffy lip. The father suggested the mother may have deliberately harmed Child A, alleging she had done so to her son, [Child B], during her previous Family Court proceedings.

(e)Dr E noted the father’s PAI was “consistent with a personality disorder which is likely to be of cluster B in nature (including borderline and Antisocial Personality Disorder features). This means the father is likely to have periods of instability, reactivity, and a lack of empathy towards others”.[4]

(f)She referred to the parents’ conflicting accounts of an incident […] in December 2016, involving the police. The father claimed the mother asked him to come to [meet her], where the mother had taken drugs and was in the company of other people. He says he stayed [downstairs] until the police arrived. The mother says the parents went to the [location] together, the father injected her with heroin (which she believed to be methamphetamines) and remembers other people, and blood. She says the father was arrested, and she obtained a VRO against the father, which he breached. Dr E outlined the police records of the event, which indicated the parents had spent the weekend together as an attempt to reconcile, the mother had been injected and was rendered unconscious. On regaining consciousness, she was being penetrated but was unable to move, due to intoxication. The mother did not proceed with the charges. Dr E noted with concern, that the mother’s allegations were similar to those raised against the father in terms of his recent offending, in which it was claimed the father used drugs to stupefy the victim, before sexual acts were committed.

[4] Report of Dr E filed 16 March 2021, paragraph 116.

47Dr E referred to the transcripts of telephone conversations between the parents, while the father was in prison, in which the mother referred to being an alcoholic, having physical altercations with members of her family and third parties, driving while intoxicated to purchase narcotics and having little contact with Child A.

48Child A told Dr E that she did not have a father. Child A said the paternal grandfather had, “hit [her], a long time ago he hurt me”. She did not make any disclosures of sexual harm.

49Dr E considered Child A was a risk of harm in the care of each parent. In relation to the father, she opined that his drug use, personality disorder and sex offending, raised serious concerns about his capacity to care for Child A. She recommended any contact between Child A and the father be supervised.

50In relation to the mother, Dr E considered Child A to be at risk of harm and neglect, due to concerns about her use of drugs and alcohol, her involvement in violent relationships, the number of inconsistencies with the mother’s self-reporting and the independent evidence on subpoena, and raised questions as to her capacity to provide for Child A’s needs. She described the father’s allegations, that the mother had deliberately harmed her child to a prior relationship, and the questions as to whether the mother had done so to Child A and blamed the paternal grandfather, as serious and requiring determination by the Court. She referred to the subpoenaed documents from the Department of Education, which revealed Child A’s school attendance in term one of 2020 was 73.7%.

51Dr E did not assess Child A to be at risk in the care of the paternal grandmother, noting the mother said she was comfortable with Child A spending time with her. Child A spoke positively about her grandmother.

52Dr E observed the Department had substantiated that Child A was at risk of harm from the paternal grandfather, largely based on the mother’s accounts, which she described as inconsistent and contradictory, and wrote “the Department tend to substantiate on surface information rather than comprehensive investigation”.

53Dr E described Child A’s upbringing as disruptive, other than when she was in the care of the paternal grandparents. While Child A remained in the mother’s care since 2020, it was unclear whether the mother was able to ensure Child A regularly attended school, and provide Child A with a stable home environment, free from family violence and excessive alcohol and drug use.

54Dr E considered Child A would be adversely affected if she were removed from her mother, in circumstances where Child A had developed a fear of the paternal grandfather. Dr E recommended Child A live with the paternal grandparents, with support from a therapist and that both parents have supervised time with Child A.

55[In] April 2021, Dr E provided answers to questions posed by the paternal grandparents. She recommended specific therapists to assist Child A in the event she were to live with the paternal grandparents. Dr E raised further questions about the safety of Child A in her mother’s care, in circumstances where it was revealed (pursuant to subpoena) that the mother married [Mr H] [in] October 2020, which the mother had not disclosed to the Expert, nor the parties.

56Dr E advised she was not in a position to answer the question as to whether Child A was at immediate risk of harm in the mother’s care, without further evidence. If it was established that Child A was exposed to family and domestic violence and alcohol and drug use in the mother’s care, then she considered the risk was immediate.

Readiness Hearing

57On 2 March 2021, I programmed the proceedings to a Readiness Hearing on 2 June 2021, with a view to expedite the matter to trial. The paternal grandparents filed their trial material, in compliance with the orders made by the Court. The father filed his trial affidavit. The mother failed to file any documents.

What is the mother’s case?

58The mother says she seeks the discharge of the ICL on the basis of both apprehended and actual bias. In support of her application, the mother deposes that her experiences as a litigant in her previous Family Court proceedings, which also involved an ICL “has allowed [her] to compare the impartiality and the formed bias of the current Independent Children’s Lawyer”.[5]

[5] Paragraph 4 of the mother’s affidavit filed 31 May 2021.

59In summary, it is her case that the ICL has failed to discharge her duties and responsibilities, she has demonstrated a lack of professional objectivity and there is either a reasonable apprehension or actual bias demonstrated by the ICL. I have set out below what I understand to be the mother’s various complaints. While she has raised a number of criticisms, I have focused on the broad categories of concern. While I have not referred to each and every complaint that she has raised, I have carefully considered each and all of her allegations.

60She alleges the ICL:

(a)Has failed in her duties;[6]

(b)Appears to be acting “merely as a puppet on a string” for the Applicants[7] and she “consistently advocated” on behalf of the father and his family,[8] and frequently sits with the paternal family before hearings and speaks to the Applicants’ solicitors.[9] The mother considers the ICL has had private conversations with the Applicants’ solicitors, due to an email in which there was reference to a telephone discussion;[10]

(c)Has influenced Dr E, “by abusing her position”, and directly contacting the Expert.[11] She suggests that the Expert has not been provided with all relevant information,[12] and been provided documents without her consent;[13]

(d)Provided false information to the Court, at a hearing in her absence, claiming she had failed to attend an interview with the Expert[14] when she claimed she had already advised of the need to reschedule the interview; and

(e)Provided legal advice to the father on 11 May 2021.[15]

[6] Paragraph 5 of the mother’s affidavit filed 31 May 2021.

[7] Paragraph 6 of the mother’s affidavit filed 31 May 2021.

[8] Paragraph 9 of the mother’s affidavit filed 31 May 2021.

[9] Paragraph 12 of the mother’s affidavit filed 31 May 2021.

[10] Paragraph 24 of the mother’s affidavit filed 31 May 2021.

[11] Paragraph 7 of the mother’s affidavit filed 31 May 2021.

[12] Paragraph 14 of the mother’s affidavit filed 31 May 2021.

[13] Paragraph 15 of the mother’s affidavit filed 31 May 2021.

[14] Paragraph 8 of the mother’s affidavit filed 31 May 2021.

[15] Paragraph 11 of the mother’s affidavit filed 31 May 2021.

61The mother deposes she has written to the LPCC and Legal Aid in relation to these issues.

What is the ICL’s case?

62[Ms Z] denies that she has failed in her duties as an ICL and that she has not acted impartially.[16] She denies having influenced the Expert, and confirms she wrote to the parties on 16 October 2020, expressing that the correspondence provided by [Law Firm B], would assist Dr E. The ICL asked the parties to notify her of any objections by 21 October 2020.[17] No objections were received within that time period.

[16] Paragraph 7 of the ICL’s affidavit filed 9 June 2021.

[17] Paragraph 8 of the ICL’s affidavit filed 9 June 2021.

63The mother emailed the ICL with her objection on 5 November 2020, by which time the documents had been sent to Dr E. Ms Z informed the mother of this via email on 6 November 2020, and advised she could review the subpoenaed material and could discuss her concerns with Dr E.[18] Ms Z then received correspondence from the mother on 10 November 2020, confirming she agreed for Dr E to have the correspondence.[19]

[18] Paragraphs 9–10 of the ICL’s affidavit filed 9 June 2021.

[19] Annexure A to the ICL’s affidavit filed 9 June 2021.

64Ms Z denies making false statements to the Court. Dr E contacted the ICL on 7 October 2020, for the purposes of rescheduling the mother’s interview because Dr E [was unwell]. On 14 October 2020, Dr E wrote to the ICL reporting she had unsuccessfully made three attempts to contact the mother to reschedule the interview. By 20 October 2020, Dr E informed the ICL she had attempted to contact the mother a further three times, also without success. On 21 October 2020, Dr E advised the mother had attempted to contact her, but the ICL did not receive confirmation of an appointment.[20]

[20] Paragraphs 12–16 and annexure B of the ICL’s affidavit filed 9 June 2021.

65Ms Z denies being an advocate for the Stanko family,[21] or giving the father legal advice.[22] She confirms she has spoken to the parties from time to time and will remind them of filing deadlines. It is part of her practise to confer with solicitors,[23] and speak with parties at court.

[21] Paragraph 18 of the ICL’s affidavit filed 9 June 2021.

[22] Paragraph 19 of the ICL’s affidavit filed 9 June 2021.

[23] Paragraph 20 of the ICL’s affidavit filed 9 June 2021.

66Ms Z confirms a letter was sent to the Department [in] December 2020,[24] in response to the mother enrolling Child A in a new school and not providing an updated address.[25] She denies this was an abuse of her position.[26] The ICL says she was concerned for Child A’s welfare, and says the mother has a history of concealing information from the Court and the other parties, as evidenced by her marriage to Mr H.[27]

[24] Annexure E of the ICL’s affidavit filed 9 June 2021.

[25] Paragraph 26 of the ICL’s affidavit filed 9 June 2021.

[26] Paragraph 28 of the ICL’s affidavit filed 9 June 2021.

[27] Paragraphs 26–27 of the ICL’s affidavit filed 9 June 2021.

67Ms Z confirms the paternal grandparents raised an objection in relation to the chain of custody of the DNA parentage kit. She then offered alternative solutions to accommodate all parties.[28]

[28] Paragraph 31 and annexure F of the ICL’s affidavit filed 9 June 2021.

68Ms Z denies being secretly provided with Mr H’s contact information, noting his address was recorded in the subpoenaed material from Births, Deaths and Marriages and Ms Z emailed the mother to confirm his address, which was not responded to.[29]

[29] Paragraph 32 and annexure F of the ICL’s affidavit filed 9 June 2021.

69Ms Z denies acting in a partisan manner, abusing her position, and slandering the mother to other departments.[30] Ms Z confirms she has not been contacted by the LPCC or Legal Aid in respect of any complaint.[31]

What is the Applicants’ case?

[30] Paragraph 35 of the ICL’s affidavit filed 9 June 2021.

[31] Paragraph 36 of the ICL’s affidavit filed 9 June 2021.

70Ms A, a solicitor employed at Law Firm B, filed an affidavit in response. In summary, the paternal grandparents deny that the ICL has acted in a partisan or partial manner. They say the ICL has exercised her discretion and acted appropriately in terms of the provision of documents to Dr E.[32]

[32] Paragraph 6 of the affidavit of Ms A filed 9 June 2021.

71The report of Dr E notes “there was a delay in filing the report due to the mother being offered three appointments to complete her interview and interview the child…”.[33] The affidavit details the timeline of the mother’s attendance on Dr E and the associated correspondence,[34] noting [in] June 2020, the ICL emailed the mother advising that Dr E had been attempting to contact her, and it was not until November 2020 that the mother’s interview was completed, pursuant to the orders compelling her to do so.[35] In light of the history, Ms A considers the ICL’s description to the Court about any difficulties with the mother attending on the Expert were accurate.[36]

[33] Paragraph 7(c) of the affidavit of Ms A filed 9 June 2021.

[34] Annexure A of the affidavit of Ms A filed 9 June 2021.

[35] Paragraph 7 of the affidavit of Ms A filed 9 June 2021.

[36] Paragraph 9 of the affidavit of Ms A filed 9 June 2021.

72Ms A confirms that on each occasion she has attended the Court, Ms Z has spoken with each other parties before the hearing, but has not “sat with the [Stanko] family before the hearing”.[37]

[37] Paragraph 12 of the affidavit of Ms A filed 9 June 2021.

73Ms A notes Dr E reported to have listened to approximately one hour of recordings, in preparation of her report, and the mother has acknowledged the accuracy of the transcripts.[38]

[38] Paragraphs 14–16 of the affidavit of Ms A filed 9 June 2021.

74Ms A’s affidavit annexes a table of some 41 requests made by the ICL, or orders of the Court, which she says the mother has not complied with.[39]

[39] Annexure C of the affidavit of Ms A filed 9 June 2021.

75In relation to the ICL’s letter to the Department dated 10 December 2020, Ms A notes the contents of the letter remain accurate, as none of the other parties are aware of the mother having complied with the order requiring her to provide her address to the ICL and the Department.[40]

[40] Paragraphs 19–20 of the affidavit of Ms A filed 9 June 2021.

76Ms A denies the ICL has allowed the father to send emails directly to the Expert, noting in an email from the ICL’s office, the parties were advised that Dr E was not to be included as a recipient in any correspondence between the parties. In spite of this, the mother did so [in] March 2021.[41]

[41] Paragraph 23 and annexure D of the affidavit of Ms A filed 9 June 2021.

77Ms A denies the ICL provided their office with Mr H’s contact information, rather the subpoena had been inspected by [Mr I].[42] They further note that [in] May 2021, the mother referred to receiving a signed letter from the occupant of the address to which Ms Z had written, serving the subpoena, that the letter has not be disclosed and that they are now aware the “occupant” is the mother’s husband, Mr H.[43]

What is the father’s case?

[42] Paragraph 24 of the affidavit of Ms A filed 9 June 2021.

[43] Paragraphs 25–26 of the affidavit of Ms A filed 9 June 2021.

78The father does not support the application of the mother. He submitted that while the ICL did not always agree with his proposals, in his view, the ICL had at all times, acted in the best interests of Child A.

What is the law?

Discharge of an ICL

79There is no suggestion that the Court does not have the power to remove an ICL.

80The 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.

82Dawe 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.

84The 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)

85The 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 basis upon which an ICL can be discharged for failing to carry out his or her 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.

Discussions and Consideration

90This is a highly contested and difficult matter. There is much in dispute between the parties, which can only be determined at trial, with an opportunity for the evidence to be tested by way of cross-examination. The case is of great importance to the parties, each of whom consider their proposals to be in the best interests of Child A.

91The mother is a self-represented litigant. It is unfortunate, given the issues in the case, that she does not have the benefit of legal representation. I observe that the mother was previously represented by ALS. It is unclear why that representation ended. It would, in my view, be of great benefit for the mother to have legal representation in these proceedings. Subject to hearing from the parties, I propose to distribute these Reasons to Legal Aid and ALS, in the hope that may assist the mother to obtain legal representation, given the mother’s submissions that she wishes to be represented.

92As a self-represented litigant, the mother has struggled to understand and comprehend the role of the ICL. Many of her complaints are simply generalisations, without evidence to support her accusations. The accusations are denied by the ICL.

93Turning to the mother’s complaints, I agree with the submissions of the paternal grandparents’ counsel, that they can be considered within four broad categories.

94Firstly, while the mother alleges that the ICL misled the presiding Magistrate about the circumstances of her attending an appointment with Dr E, that allegation is denied. The transcript of those proceedings was not in evidence before me. Both the ICL and Ms A depose as to the delays in the mother attending on Dr E, for the purposes of the report. The mother’s complaints, in circumstances where they are disputed, cannot sustain an allegation of bias.

95Secondly, the mother has alleged the ICL has advocated for the paternal grandparents and the father. The mother claims the ICL has sat with the paternal grandparents’ solicitors.

96The ICL explained that she has usually spoken with each of the parties, at various court appearances. She has done so individually, as is appropriate. She denies having sat with the paternal grandparents’ solicitors. The ICL says she has often had more lengthy conversations with the mother, than the other parties, particularly when the mother has been unrepresented. The fact the ICL has spoken with parties, does not suggest unprofessional conduct or bias against the mother. They also do not suggest any failure on the part of the ICL to carry out her duties.

97The ICL denies that she has acted as anyone’s advocate and says she has, at all times, acted in accordance with Child A’s best interests, and in discharging her duties, has remained impartial and independent. The ICL submits that she has taken seriously the allegations raised by the mother, and her proposals to the Court have been based on what she perceives to be in Child A’s best interests, as opposed to the interests of the parties. By way of example, the ICL refers to the fact that after the mother raised allegations that Child A had been physically harmed by the paternal grandfather, the ICL supported the suspension of Child A’s time. That is reflected in the Consultant’s memorandum, to which I have referred.

98The fact the ICL has raised concerns also about the mother, and Child A’s safety in her care, is not indicative of bias. As indicated, the relevant test for apprehended bias is an objective test. The mother’s evidence is her subjective assessment in terms of how she perceives the ICL has treated her, and the other parties. They are disputed by the ICL. There is nothing inappropriate about the ICL’s course of conduct, in considering and assessing the various allegations raised by all parties. Further, I am not satisfied that the ICL’s contact with the Department was suggestive of bias, but accept the ICL had concerns about Child A’s well-being. As the chronology demonstrates, the Department have had significant involvement with the family.

99Thirdly, the mother claims that the ICL has influenced Dr E. The mother complains that the ICL, in her letter to the Expert, set out a summary of the background. There is nothing unusual or inappropriate in the ICL doing so. The mother refers to the provision by the ICL of transcripts of recordings between herself and the father while he was incarcerated, and suggests that has unfairly influenced Dr E. The ICL explained that she proposed to forward the documents to Dr E, absent any objection from any party within a specified timeframe. No objection was made by the mother in that timeframe. There is nothing inappropriate or objectionable about the actions of the ICL, in those circumstances. Contrary to the mother’s claims, Dr E’s report refers to having listened to an hour of the recordings, and having read the transcripts, not simply select parts.

100The mother, in her submissions, complained that the ICL had not provided Dr E with the mother’s prescription for [Medication A], which explained her hair strand test results, nor did the ICL provide correspondence which the mother says she obtained from Child A’s school, which clarified her school attendance.

101The mother has attached a letter from [Dr J] dated August 2020, which confirms the mother was prescribed 20 tablets of Medication A in June 2020. The mother has not provided her request to the ICL, disclosing the letter from Dr J and asking it to be provided to Dr E. She has also failed to produce correspondence from Child A’s school, which she claims clarifies Child A’s school attendance, with any request it be provided to Dr E.

102While the mother complains these two documents were not provided by the ICL to Dr E, the mother met with the Expert on two occasions, in which she could have raised these matters. Further, Dr E offered each party the ability to email her any further information, following their interviews.[44] The mother did not do so. Had the mother considered that material to be significant and relevant, it was open to her to do so.

[44] Report of Dr E filed 16 March 2021, paragraph 13.

103Rule 15.65(1) provides any party can seek to pose questions of the Expert, to clarify their report, within 21 days of receipt of the report. Further, Rule 15.50 enables each of the parties to cross-examine the Expert.

104It does not appear that the mother has posed any questions to Dr E, noting that she is now out of time in which to do so. It is open to her to seek an extension of time. In any event, the mother will have the opportunity to cross-examine Dr E.

105The mother’s complaints appear to focus on Dr E’s recommendations, which are not supportive of her application for Child A to remain in her care. The Expert’s evidence has not been tested by way of cross-examination. In any event, I am not satisfied the mother’s complaints can sustain an allegation of bias against the ICL.

106Fourthly, the mother accuses the ICL of sharing information with the paternal grandparents and specifically, providing them with the contact details of her husband, Mr H. The ICL denies doing so. The solicitors for the paternal grandparents confirm they obtained Mr H’s information, from inspecting subpoenaed documents. There is no substance to the mother’s complaint.

107Finally, I would add the mother’s allegation that the ICL has provided legal advice to the father. The ICL says she has had limited communications with the father, but she has provided procedural information to the parties. The ICL categorically denies having provided legal advice to the father.

108I observe the ICL provided procedural advice to the mother, in her email to the mother [in] November 2020,[45] advising the mother how she could arrange to inspect subpoenaed documents and providing her with the relevant contact number, and recommending she do so prior to the interim hearing. The mother acknowledged and thanked the ICL for that information.

[45] Annexure A to the affidavit of Ms Z filed 9 June 2021.

109In my view, there is nothing in the ICL’s conduct that demonstrates she has been unprofessional or negligent in discharging her duties, by such actions. The email correspondence from the father to the ICL which the mother relies upon, does not corroborate her allegations.

110Proceedings need to be conducted properly, affording procedural fairness to all parties, and ensuring each party has an opportunity to adduce evidence, which is relevant to the Court’s determination as to what arrangements are in Child A’s best interests. The Court has limited resources. The Court has not made any findings at this time, adverse to the mother, or any party to the proceedings. The conduct of each of the parties, will no doubt be the subject of findings by a trial judge, in due course.

Conclusions

111In my view, nothing raised by the mother properly or relevantly satisfies, as a matter of fact or law, the principles that apply in relation to apprehension of bias. Much of the mother’s evidence is simply assertions and/or complaints. Without more, they do not warrant the ICL’s removal. The mother has failed to identify anything specific to support her assertion that the ICL has not acted in an impartial and independent manner, or that she has demonstrated bias.

112I accept the mother’s beliefs are genuinely held. She perceives that the ICL is not “on her side”, and considers that the tide is not running in her favour, in light of the recommendations of the Single Expert. As a self-represented litigant, she has struggled to put herself in the shoes of a reasonable, fair minded observer, in circumstances where the proceedings are highly personal and important to her. However, the inquiry is not directed towards the mother’s subjective views.

113Many of the mother’s complaints have arisen due to a lack of understanding about the role of the ICL and the conduct of the proceedings in general. During the hearing, I explained to the mother that the Court was unable to make any findings on an interim basis where the evidence was in dispute. Much of the mother’s evidence was focused on establishing that where her evidence disputed the evidence of the paternal grandparents, the father, or the ICL, that her evidence was to be preferred. I am unable to make such findings on an interim basis.

114I also conclude that the facts identified above do not support a finding that a reasonable person would conclude that the ICL was biased towards the mother, and was likely to find against her in the future. The fact that the ICL has not agreed with, or been critical of the mother’s actions at times, does not amount to bias.

115While the Court can adopt the views of the ICL, the ICL cannot and does not make orders. Further, these proceedings are yet to proceed to trial. The ICL has not yet expressed to the Court any view about the ultimate arrangements that are in Child A’s best interests.

116For these Reasons, I am not satisfied that the mother has established grounds upon which the ICL should be discharged, and her application will be dismissed.

PROPOSED ORDERS

1.The Form 2 of the Mother filed 31 May 2021 and the Form 2A of the ICL and the Applicants filed 9 June 2021 be and are hereby dismissed.

2.The costs of all parties’ be reserved to the trial judge.

3.Subject to hearing from the parties, the Reasons and Orders be provided to Legal Aid and ALS, to assist the mother in relation to any application for funding for legal representation.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

18 JUNE 2021