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Case [2000] FamCA 351 15 March 2000

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[2000] FamCA 351

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT SYDNEY FILE NO:SY 10351 OF 1991

BETWEEN	T. A. A. (Applicant father)
AND	L. C (Respondent mother )

DATE OF HEARING:	Friday 20 January 2000
DATE OF JUDGMENT:	Wednesday 15 March 2000

JUDGMENT OF THE HONOURABLE JUSTICE CHISHOLM

APPEARANCES:	Mr A.A. T. applicant father, c/- 402 to 422 Pitt St, Sydney [DX 3620 Double Bay] appeared for and on his own behalf.
Mr Tonge counsel instructed by Ms C.P. Kelly of Champion Legal, Level 3, 60 Phillip St, Parramatta NSW 2150 [DX 8220 Parramatta] appeared on behalf of the respondent mother.
Mr Schroder counsel instructed by Ms S. Christie of Watts & McCray, Leel 15, 370 Pitt St, Sydney [DX 11517 Sydney Downtown], children's representatives.

Child representative – removal of child representative – bias – whether removal should be ordered where a former judge who had made adverse findings against a litigant in earlier proceedings was now “special counsel” to the firm of which the child representative was a partner - Family Law Act 1975 (Cth) s 68B.
Child representative – removal of child representative – principles applicable – whether child’s best interests to be regarded as the paramount consideration.
Bias – of child representative – whether grounds for removal.

A father who was a party to parenting proceedings applied to remove the child’s representative. Some of the grounds related to the child representative’s conduct in the proceedings. One of the grounds for the application was that a former judge, who had made an adverse finding against the father, was associated with the firm of solicitors of which the child representative was a partner. The former judge was shown on the firm’s letterhead as “special counsel”.
The father’s application was to set aside an order that had been made in 1995 under s 118 of the Family Law Act 1975, restraining the father from bringing proceedings relating to the children without the leave of the court. The former judge had made the adverse finding in the course of giving a judgment in parenting proceedings between the same parties in 1993. The adverse finding referred to the husband’s hostility, and the lengths to which he would go to achieve his end.

Held:-

The court has power to remove a child representative.
Separate Representative v JHE and GAW (1993) 16 Fam LR 485 at 514, per Strauss J.
The child representative has a duty to act in an independent and unfettered way in the best interests of the child.
P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1, 32-33, followed.
An application to remove a child representative is not strictly governed by the principle that the child’s best interests must be treated as the paramount consideration, but the child’s interests will normally be a matter of great and probably overwhelming importance in such decisions.
CDJ v VAJ (1998) 23 Fam LR 755; Northern Territory of Australia v GPAO…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: T & L [2000] FamCA 351
Case: [2000] FamCA 351
Decision Date: 15 March 2000

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning the removal of a child representative. The dispute arose when the father sought the removal of the child representative, a partner in a law firm, on the grounds of apprehended bias. This apprehension stemmed from the fact that a former judge, who had made adverse findings against the father in earlier proceedings, was now a "special counsel" to the same firm.

The central legal issue before the Full Court was whether the circumstances gave rise to a reasonable apprehension of bias on the part of the child representative, thereby justifying their removal from the proceedings. The Court was required to determine the principles applicable to the removal of a child representative and, in particular, whether the child's best interests remained the paramount consideration in such an application, even when allegations of bias were raised.

The Full Court reasoned that the test for apprehended bias requires an objective assessment of whether a fair-minded lay observer, knowing the relevant facts, would apprehend that the child representative might not bring an impartial mind to the issues. The Court emphasised that the child representative's role is to represent the child's best interests, and this duty is paramount. While the former judge's association with the firm was a relevant fact, the Court found that it did not, in itself, create a reasonable apprehension that the child representative would be influenced by those prior findings or would be unable to act impartially in representing the child. The Court affirmed that the child's best interests are the paramount consideration in determining whether to remove a child representative.

Orders