T & L

[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 and Others (1999) 24 Fam LR 253, followed.
It is difficult to imagine circumstances in which the court would retain a child's representative whose abilities to act in the child's interests were significantly compromised, or would remove one who is able and willing to advance the child's interests by properly performing the child representative's task.
There was no basis for any of the father’s complaints about the conduct of the child representative.
The husband was mistaken in submitting, in effect, that the court might be expected to follow the child representative’s submissions.
The husband could not rely on any actual perception of bias by himself, as distinct from the perception of some hypothetical person. While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests.
While the actual perceptions of children might have potential relevance to applications to remove a child representative, there was no evidence to justify such an approach in this case.
It was a critical question whether a person in the husband’s position might reasonably believe that the child's representative would not be impartial, but would be prejudiced against the husband by reason of his association with the former judge.
Re JRL; Ex parte CJL (1986) 10 Fam LR 917; Marriage of B J McGillivray and P K Mitchell (1998) 23 Fam LR 238, followed.
In the circumstances of this case, a reasonable person in the husband's position, learning that a judge who had made an adverse finding against the husband in earlier proceedings was now "special counsel" to the firm of which the child representative was a partner, where the finding was relevant to the current proceedings, might reasonably feel that the child's representative would be biased against him.
Having regard to all the circumstances, including the consequences of removing the child representative and the interests of the children, the Child Representative should be restrained from further representation of the children in the proceedings.
Although the interests of each of the two children might not coincide, it had not been shown to be necessary to appoint a separate representative for each of the children.

INTRODUCTION

There were two applications before the court on 21 January 2000. The father was the applicant in both matters. One was to set aside an order that had been made in 1995, restraining the father from bringing proceedings relating to the children without leave of the court. For convenience I will refer to this as "the s 118 application". The other was to discharge the child's representative. I should mention that it became clear that the father did not wish the children to be unrepresented, but sought that the particular child's representative should be removed and another person appointed. For clarity, I think it best to refer to the removal of the child representative ("the removal application").
At the hearing an initial question arose as to the order in which the two issues should be dealt with. For reasons given at the time, I determined to deal first with the removal application. It was not possible to deal with both matters in the one day that had been set down, and I adjourned the s 118 application, and heard evidence and argument relating to the removal application.
The father filed the relevant Form 8 Application on 17 January 2000. The removal order sought by him is as follows:-
"6) That the separate representative John Justin Dowd and his agent S. Christie no longer represent or act for the children M.L.T and S.L.T. with immediate effect and that each of M.L.T. and S.L.T. be separately represented by different legal representatives."
The applicant father relies on a set of affidavits and some other materials. The affidavits are those of himself sworn on 7 January 2000, 11 January 2000, 17 January 2000 and 28 September 1999.[1] The other documents relied on by the father are:
·the written submissions of the child representative filed 10 January 2000 in particular paragraph (g) on page 3;
·the child representative's practice direction document filed 21 January 2000, especially paragraph (n), and
·correspondence between the father and the child representative comprising the father's letter of 11 January and the child representative's letter of the 9 January 2000. (The child representative's letter is in fact a response to an earlier letter of the father in essentially identical terms.)
[1]This affidavit was relied on by the mother and the child's representative, but is conveniently included here.
It is accepted by all parties that I should take into account all the orders that have been made in these proceedings.
When the matter first came on, each party identified the affidavits and other documents on which they relied. The affidavits relied on by the father are indicated above. The mother relied on her affidavits of 7 January and 17 January, and the Family Report dated 6 January.[2] The child's representative did not read any additional affidavits.
[2]It is necessary to read this with the earlier family report, of December 1999, referred to below.
After it was determined to deal first with the removal application, the father indicated the material on which he relied, which included the material that he had earlier said he would rely on. There was no further discussion of what material was relied on by the mother or the child's representative. I think it is reasonable to infer that all parties assumed and intended that I should treat each party as relying on all the evidence identified. This is particularly so as some of the affidavits include material in reply, so that it is necessary to read them together. I will proceed on this basis.
The removal application is based on two distinct matters, namely a series of complaints about the child representative's conduct of proceedings, and a submission that an appearance of bias arises from the fact that a former judge of this Court, who had made adverse findings against the father, was involved with the child representative's firm of solicitors. Having heard submissions and commenced work on the judgment relating to the removal application, I formed the view that I would need to consider a number of areas of law on which submissions had not been made, especially in connection with the bias aspect. I therefore invited the parties, if they wished, to make written submissions relating to those areas.
I received written submissions from the mother and from the child representative, the last submission being received on 8 March. Although in his oral submission on behalf of the mother Mr Tonge opposed the application to remove the child representative, in his written submissions he proposed that because of the bias aspect the child representative should be given the chance to step aside, or restrained from taking any further part in the proceedings, “so that justice can not only be done but be seen to be done”.[3]
[3]Mother’s submission page 13.

FACTUAL BACKGROUND

Although the application being considered relates only to the question whether the child representative should be removed, and therefore much of the background might be reasonably thought irrelevant, I think it desirable to put the matter in context by referring to the factual background and the issues relating to the children. In any case, the background is relevant to the question whether a different representative should be appointed for each child.
The parties commenced cohabitation in 1986 and married in June 1987. Their two children, M. and S, were born respectively on 10 June 1987 and 8 May 1989. They are thus aged 12 and 10.
The parties separated on 1 October 1990, and were later divorced.
On 26 March 1993, after a three day hearing, Baker J made orders providing that the mother should have custody and sole guardianship of the children and that the father should have specified access. In the course of his judgment he made some findings adverse to the father. In particular he stated in paragraph 17:
One only needs to look at the number of applications and other procedures which the husband in the course of this litigation has either filed or instituted to realise the degree of hostility which he bears towards the wife and the lengths to which he will go to achieve his end.
There were further proceedings in 1994. The mother says that the father filed applications relating to custody and access on 11 April, 21 April, 11 July, 2 November and 23 December; and an application for review on 13 July (which was dismissed on 23 August).
The father refers to allegations that the mother was violent to the children in 1994, 1995 and 1996. He refers to various proceedings, and child welfare investigations, relating to these matters. These allegations are denied by the mother. It is sufficient to say that it is impossible for me to make any findings on these matters in these proceedings.
On 16 May 1995 consent orders were made by Purdy J. The father was in person; the mother and the children were represented by counsel. Orders 1, 2 and 3 provided for access. The father was to have access to the children on alternate weekends and half school holidays, and there were certain other orders about access. Order 4 was as follows:-
4. That (without admissions by the husband) the husband shall not bring proceedings in relation to the custody, guardianship or access to the children without leave of a Court having jurisdiction under the Family Law Act, under Section 118(1) of the said Act or any like Section.
I pause to mention that the power to make such an order is set out in s 118(1)(c). The father's s 118 application (which I have adjourned) is for an order under s 118(3), which provides that a court may remove or vary an order made by that court under paragraph (1)(c).
The father says the applications he made up to 1995 were made because he was concerned about violence and emotional abuse suffered by the children at the hands of the mother. He says that in May 1995 it was apparent to him that "because of the effluxion of time that no one was terribly concerned about the situation of the children including the two separate representatives". He says that while he has never thought there was any justification for the section 118 order, he "readily agreed because at that time I just wanted the proceedings to be finished and I had pressing employment commitments".
For some time after the 1995 orders, the children continued to live with the mother and have contact with the father.
Difficulties arose, however, in 1998, and have continued. The mother says that the father retained the children for two weeks just prior to the September/October 1998 school holidays, without notifying her of his proposal or of when he intended to return the children.
In January 1999 the mother expected the children to be returned by the father on 29 January, in time to return to school; but on 23 January she received a phone call from the child S. to the effect that the children "want to live with dad." The children were not returned, and the mother commenced proceedings.
In mid-February 1999 the children came to the mother's home for a visit. Her evidence is that S. indicated that he wished to stay living with her, while M. returned to the father's care. He has remained there.
Interim orders were made on 19 February 1999 by Knibbs JR. They provided, among other things, that the mother's application for recovery be adjourned and that the father have "continuous contact" with M..
On 3 May 1999 consent orders were made. They discharged all previous residence and contact orders relating to M., who was to live with the father. The mother was to have contact with M. on alternate weekends and at other agreed times.
In July 1999 S. went on a holiday with the mother; M. did not wish to go, and did not.
The mother says that until about the end of August 1999 M. was spending each alternate weekend with her, but since the 1999 September school holidays there has effectively been no contact between them. The mother complains that she has had difficulties in attempting to speak to him by phone.
The father says that M. refuses to visit the mother and that he, the father, has been unable to persuade him to do so. He says that M. is concerned about what M. considers to be a sexual relationship between the mother and another woman. He says that M. is concerned about not being able to see S.. He says both children are very angry and agitated, especially when he suggests they phone their mother or raises the subject of their seeing a counsellor.
Difficulties arose about the September 1999 holidays. The father complains that the mother effectively prevented him from having proper contact with S. over the September/October 1999 holidays.
The mother says that the father phoned her and proposed, as she understood him, that he take the boys to Western Australia for the whole of the holidays. She refused and told the father she had made plans to take S. on holidays, and, on her evidence, S. told her that he wished to do so.
On two occasions in September and October 1999 the mother says she believes the father did not intend to return S. to her care. There was an incident on the weekend of 18/19 September. The mother says that there was an arrangement to meet at a street corner. She drove with a friend. When she arrived both children came up to the car:
My friend got out of the front passenger seat and S. got into the front seat. S. put his head down in my lap. S. said "I don't want to go with you" (sic) and cuddled into me. M. tried to pull him out of the car.
The mother goes on to say that M. was standing outside the car yelling, and trying to obstruct S. going with the mother. M. sat on the car bonnet and refused to get off. The mother started the car to slowly move off and make M. get off the car, which he did within a few seconds, while the mother was not moving more than 2-3 kph. The mother says she did not see the father.
In relation to the incident of the weekend of 18-19 September, the father states in his affidavit sworn 7 January 2000 he told the boys to go outside and meet the mother. He noticed the mother's car. There were two persons in it. He continues:-
I then saw the door open and the Mother very roughly grabbed and pulled S. into the car to the extent that his tee shirt was pulled over his head. I then saw M. apparently arguing with the Mother go and sit on the bonnet of the car…
In an earlier affidavit, however, sworn shortly after the incident on 28 September 1999, the father swore that M. described the incident to him, and goes on to say "I did not see what happened as I was busy locking up the unit and it was dark". There is a striking inconsistency between these two versions.
The mother says she believes that the father has moved his home address at least twice in the last 12 months and has prevented her from obtaining the addresses or phone numbers.
The mother says that the father removed S. from a weekend workshop in late November 1999 without her knowledge: S. was returned about 8.15pm on the Sunday. There were other difficulties in having S. returned to her in December.
The mother filed an application for a recovery order on 10 December 1999. On 15 December Loughnan JR made orders for the children to be delivered by the father to the mother at 4pm on 4 January 2000, and for the mother to return M. to the father on 31 January; the application was otherwise dismissed.
The mother says that the children were with the father between 15 December and 5 January, and she sought recovery orders when they were not returned to her on 4 January in accordance with orders of 15 December 1999.
On 10 January 2000 a recovery order, and an order suspending the father's contact with S., was made by Rowlands J. A further recovery order relating to S. in favour of the mother, and restraining orders, were made by Rowlands J on 14 January. They restrained the father from approaching within 500 metres of S. except as ordered by the court; and provided that he not approach within 5 km of the mother's address or S.'s school, and that he not contact S. or cause any other person to contact S. by any means.
The father was not present when the police attended his residence to execute the order over several days. On 17 January the father filed an application for a stay of the recovery orders. This application was dismissed by Moore J on 19 January, and S. was collected by the mother.
The present situation, therefore, is that M. is with the father and S. is with the mother. The father's contact with S. has been suspended. There are contact orders for M. to see the mother, but recent history suggests that such contact is unlikely to take place.

Broadly speaking, in my views the father's main concerns appear to be that the mother has been violent to the children and has treated them badly; that she has limited the father's contact with S.; and that both children wish to live with him. While the 1995 s 118 order remains in force, he cannot bring further proceedings relating to the children without the court's leave. The mother's general position, as I understand it, is that she greatly regrets that M. has gone to live with the father and wishes to prevent S. from being similarly alienated from her.

The family reports

I should refer briefly to the two family reports by Ms Rothschild, a court counsellor. She interviewed the mother on 21 December 1999. The father and the children did not attend the interview. The father said this was because he had not received notification.[4] The report states that he did not keep the appointment, or contact the counselling section, or respond to messages on his answering machine. The report states that the mother "impressed as an intelligent, sincere person, genuinely concerned for her sons and their wellbeing. She acknowledged that the ongoing vendetta could only be destructive and distressing for her sons and appeared anxious to reach a permanent solution so that their lives will not be disrupted further."
[4]See the second family report, paragraph 1.
The second report states that after numerous unsuccessful attempts to contact the father, he appeared at the reception desk on 4 January, and arrived on 5 January with the children (without an appointment). The report then describes the interviews with the father and the children. The boys seem to have left somewhat prematurely. The father apparently told the counsellor that the boys "did a bit of a con job on me", and then, after receiving a phone call he too left, later phoning to say that the boys had been "in a bit of a state" and did not wish to return for the completion of the report.
I would briefly summarise the counsellor's main conclusions as follows. S. was an intelligent, articulate boy who was co-operative and responded frankly to a number of questions, but appeared to have been coached or briefed for the assessment. M. was antagonistic and his behaviour was defiant and uncooperative. He impressed as a "very disturbed boy whose frustration was manifest in his anger, rudeness and failure to recognise any boundaries of acceptable behaviour". His hostility and defiant behaviour "appeared to be unimpeded if not actually encouraged by Mr T.". He needed "intensive professional help".
The father appeared either unwilling or unable to exercise any control over the boys. In the counsellor's view he had displayed consistent disregard for previous court orders, and some of his actions indicated "his apparent lack of concern for his younger son's wellbeing and emotional development".
The counsellor considered that it would be "unconscionable and not in the boy's interests" for S. to live with the father. While M. would benefit from being removed from his current environment, it appeared doubtful if it would be possible to restrain him or impose any limits if he lived with his mother; and his continuing influence on S. would be likely to impede S.'s psychological development. Indeed, "in view of the previous chaotic contact developments, it would be desirable for S. to be afforded a period of no contact with his father and brother", while settling back into a stable routine in the mother's household.

RELEVANT LAW ON THE CHILD'S REPRESENTATIVE AND REMOVAL

I will deal here with relevant law relating to the child's representative and removing a child's representative.
The argument proceeded on the assumption that it was possible for the court to discharge the order for a child representative or remove a particular child representative. This seems to be accurate.[5] In the Pagliarella, Hannon J said:-[6]
It was not submitted that the court did not have the power to discharge a separate representative and I have no doubt that such a power exists. Section 65 of the Act empowers the court to make an order for separate representation of a child and although it may request a legal aid body to arrange the representation (see O 23 r 4(2)), the appointment is by order of the court and the power of appointment would carry with it the power to discharge the person appointed pursuant to the order, if proper cause is shown that it is appropriate or desirable that the person appointed as the separate representative should be removed.
In In the Marriage of F and R (No 2) (1992) 15 Fam LR 662 [1992] FLC 92-314 Fogarty J said:
“Whilst I have not heard argument on this matter, it seems to me that where a separate representative takes steps in proceedings which cannot be justified or which are inappropriate, then the court could order the removal of the separate representative.”
[5]The mother’s submission also takes this view, referring to the court’s inherent power and s 68B and citing Serarate Representative v JHE and GAW (1993) 16 Fam LR 485 at 514, per Strauss J.
[6]Marriage of Pagliarella (1993) 16 Fam LR 688. I do not think there is anything to the contrary in Marriage of Heard and De Laine (1996) 20 Fam LR 315.
It is appropriate to recall at least briefly the nature and role of the child's representative. Fogarty J has said:-[7]
“It appears to me that such a person occupies the position of an advocate appearing for a particular party in the litigation although it is a 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 what in his view is in the best interests of that ‘client’ and to that extent exercises an independent judgment quite out of character with the position ordinarily occupied by an advocate.”
[7]Marriage of Harris [1977] FLC 90-276 at FLC 76,476, cited with approval by Strauss J in Separate Representative v JHE and GAW (1993) 16 Fam LR 485.
In Marriage of Bennett the Full Court said:[8]
“… it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the children (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 a 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 a Royal Commission in the sense that his or her duty is 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…
[8]Marriage of Bennett (1990) 14 Fam LR 397, 405.
The Full Court also said in that case, "What is clear is that the separate representative should act in an independent and unfettered way in the best interests of the child."
In P and P and Legal Aid Commission of NSW, after referring to Bennett[9] and Re K,[10] the Full Court said:-[11]
[9]In the Marriage of Bennett (1990) 14 Fam LR 397, particularly at Fam LR 404–5.
[10]Re K (1994) 17 Fam LR 537.
[11]P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1, 32-33.
In this regard, we think it worth saying something more about the role of a separate representative in a case such as this. In In the Marriage of Bennett (1990) 14 Fam LR 397; [1991] FLC 92-191, particularly at Fam LR 404–5; FLC 78,258-9, the Full Court discussed the proper role and function of a separate representative and in Re K (1994) 17 Fam LR 537; [1994] FLC 92-461 it set out guidelines as to the circumstances in which a separate representative was to be appointed, which normally would include cases of this nature if one of the parties, such as the Public Advocate, was not fulfilling such a role.
In a helpful submission prepared on behalf of the separate representative in this case by Ms Ryan of the Legal Aid Commission of NSW, the position of a separate representative was summarised as follows:
“The separate representative ought:
1. Act in an independent and unfettered way in the best interests of the child.
2. Act impartially, but if thought appropriate, 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.
3. Inform the court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the court.
4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the court.
5. Test by cross examination where appropriate the evidence of the parties and their witnesses.
6. Ensure that the views and attitudes brought to bear on the issues before the court are drawn from the evidence and not from a personal view or opinion of the case.
7. Minimise the trauma to the child associated with the proceedings.
8. Facilitate an agreed resolution to the proceedings.”
These statements are of general application to all cases and we are in broad agreement with them.
In my view the determination of 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.[12] This is because since the 1995 amending Act, that principle is expressly made to apply to certain determinations, for example, to the making of parenting orders,[13] but is not expressed to apply generally.[14] It is obvious, however, that the best interests of the child will normally be a matter of great and probably overwhelming importance in such decisions. To use the metaphor used by the Full Court of the Family Court in CDJ v VAJ,[15] and approved by Kirby J in the High Court, ancillary decisions will be made “in the shadow of” the paramountcy principle. It is difficult to imagine circumstances in which the court would retain a child's representative whose abilities to act in the child's interests were significantly compromised, or would remove one who is able and willing to advance the child's interests by properly performing the child representative's task.
[12]This is also the position adopted in the mother’s submissions: pp 12-13.
[13]Section 65E.
[14]See CDJ v VAJ (1998) 23 Fam LR 755 (HC) at paragraphs [63](Gaudron J), [87] (McHugh, Gummow, and Callinan JJ), and [190-192] (Kirby J), and Northern Territory of Australia v GPAO and Others (1999) 24 Fam LR 253 (HCA), especially at paragraphs [68](Gleeson CJ and Gummow J, with whom Hayne J agreed), [233] (Kirby J), [139] (Gaudron J) and [198] (McHugh and Callinan JJ). The issue is considered in the Butterworths Family Law Service, Vol 1, especially in the commentary to s 65E.
[15]CDJ v VAJ (1998) 22 Fam LR 166.
At least in general, then, it seems that the critical question in considering an application to remove a child's representative is whether the representative is likely to carry out his or her task properly. It is not necessary to attempt to state generally the circumstances that might cause the Court to find that child representative is unlikely to do so. Given the issues in the present case, it is sufficient to say that it might well be appropriate to remove a child's representative where the evidence showed that he or she had deliberately misled the court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child's representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child's representative to "act in an independent and unfettered way in the best interests of the child".
It is appropriate to note in this connection that it is frequently part of the child's representative's role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child's interests. Differences of views are of course inevitable in litigation. While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests. I agree with the child representative's submission that it is important to avoid a situation in which the child representative "is a captive or the most vocal, litigious or dissatisfied parent or party".

COMPLAINTS ABOUT THE CHILD REPRESENTATIVE'S BEHAVIOUR.

The father's complaints about the child's representative's behaviour are set out in his letter that was the basis for the submissions. I will take them in order, referring to the numbered paragraphs of the father's letter of 11 January 2000.

Paragraph 1

This complaint is that Ms Christie was "misleading the court, telling the court I was reluctant to partake (sic) M. and S.L.T. to the Family Court Counselling Service for a Family Report previously agreed to by me". The father says this assertion was made "knowing it to be untrue". He says that he did not receive any phone message or message about the appointment prior to Christmas 1999, nor did the Child's Representative’s office contact him as he had been advised by the counselling service prior to Christmas that it would.
The child representative's response is that Ms Christie "noted your reluctance in relation to the children speaking with the family court counsellor as expressed in open court on 7 January 2000. It was not a submission confined to your failure to make the children available prior to Christmas." There is no specific evidence relating to what the father said in open court on 7 January. The father said that he had never expressed such reluctance and it was not a fair objective submission. He also said that he had admitted that there was "a hitch in communications" about the counselling interview and the child representative's answer was "woolly and misleading."
In my view the evidence does not show that Ms Christie misled the court or did anything other than express a view of the evidence. It is very common for people to draw different inferences from evidence and it is sufficient to say that I am not satisfied that the evidence shows that Ms Christie either misled the court or had any intention of doing so.

Paragraph 2

The father's criticism is that either Mr Dowd should have been available or Ms Christie should have interviewed the children. He referred in particular to the incident following the counselling, when he said "the children were upset and wrongly left the court premises". He submitted that in the circumstances it was of prime importance for Mr Dowd or Ms Christie to speak to them. A closely related matter is paragraph 5: "Christies (sic) failure to see the children prior to the proceedings even when offered, prior to 7/1/2000".
As to these matters the response by the child representative was, in substance, that the child representative was (at 10/1/2000) currently on annual leave and that he had made all the files available to Ms Christie and had had several lengthy conversations with her about the matter.
The children had been seen by the child representative in December 1999 and were due to be seen by the Family Court Counselling Service on 10 January 2000. Ms Christie writes that the children "have had a long involvement with these proceedings and the child representative is of the view that further interviews with the children would border on ‘systems abuse’."
Child representatives must often have difficult choices to make about how frequently to speak to children. In my view the evidence goes no further than to indicate that Mr Dowd and/or Ms Christie made such a decision in this case. They were concerned to avoid "systems abuse" by undue interviewing of the children. I understand this term to refer to a situation in which the processes of the law, albeit intended to benefit children, become unwittingly a further means of abusing them. Their concern to avoid such abuse of the children is entirely justified in the circumstances of this case, and indeed it shows a sensitive and responsible approach to the task. There is no evidence to suggest that their decision was wrong or in any way inappropriate.

Paragraph 3

This paragraph refers to the child's representative "ignoring key evidence of unsatisfactory conduct of the mother towards the children prior to May 1995 without even seeing the children".
The father in his submissions referred to an incident prior to the date in 1995 when the consent orders were made. This incident involved conduct relating to M. at a camp in which a stick was applied to him and he was made to have a cold shower with his clothes on. The child representative's response was that "the child representative has and will consider all legally relevant evidence".
As to this matter I am not satisfied on the evidence that the child representative "ignored" any evidence relating to the children. It is also relevant that this incident pre-dated the father's consent to the 1995 orders which included an order restraining him from bringing any further applications relating to the children without the court's leave.

Paragraph 4

This paragraph refers to "Christie's support of using police to separate M. and S.L.T. by force if necessary at Family Court on 7/1/2000 and for the order for recovery to their serious potential, emotional and psychological detriment".
As to this matter the evidence indicates that the police intervened, pursuant to the orders of the court arising from circumstances in which the father had not returned the children as required by court orders. I see no basis for complaint in this matter against Ms Christie or the child representative Mr Justin Dowd. In saying so I do not wish to minimise the impact that the intervention may have had on the children. However, as pointed out on behalf of the child's representative and the mother, the father must take some if not all of the responsibility for this event. It flowed from his actions in retaining the children and refusing to return them pursuant to a court order.

Paragraphs (a) to (d)

A number of other matters are referred to in paragraphs bearing letters (a), (b), (c) and (d).[16]
[16]In fact paragraph (b) is repeated but I will treat the paragraphs as if they had been appropriately designated.
Paragraph (a) has already been dealt with. It relates to the question whether the father was reluctant to bring the children to the Family Court Counsellor.
Paragraph (b) refers to paragraph (g) of the child representative's submissions to the court, to the effect that the father's affidavit does not suggest that S. has been harmed. The father says that this is known to be false on the basis of documents supplied many months ago to all the parties and the mother. "Such was clearly meant to mislead the court". In his oral submissions the father said that the statement had the potential to mislead, whether inadvertently or deliberately.
The father refers to paragraph 8.1 of one of his affidavits. In his oral submissions he suggested that the child's representative had represented that the incident involved merely "rough handling" but that in fact it went beyond that and it was known by the child representative that it did.[17] This is the incident to which I have already referred, in September 1999, about which the father's evidence is contradictory.
[17]The relevant passage is the third paragraph under the heading "(g) The need to protect children from physical or psychological harm".

In my view the statement by the child's representative does not involve any deception of the court or attempt to do so. It is one of those matters where different views can be taken about the evidence. The submission may do no more than point to the lack of evidence of any persisting or permanent or demonstrable injury to S. arising from the incident.
More generally, in my view Mr Schroder was right in directing attention to the nature of these documents prepared by the Child Representative, comprising the Case Outline and written submissions. The two documents respectively represent submissions made in writing following the admission of evidence and an outline of the issues and the evidence perceived to be likely to be led at the commencement of a trial. Such documents are routinely supplied and are very useful in identifying the issues and avoiding unnecessary time being spent on oral submissions.
They are, however, no substitute for evidence. In so far as they involve interpretation of evidence, it is of course open to all parties to make whatever submissions they wish about the correct interpretation about the evidence before the court. It is routinely the case that litigants and child representatives may take very different views about the significance of evidence and the interpretations to be made of it.
The material put before the court by Mr T. goes no further than indicating that he disagreed with some of the interpretations and summaries advanced on behalf of the child representative. Even if it were shown that his view was a more accurate account of the evidence, in my view there is not the slightest reason to suspect that the child's representative misled the court or intended to do so.
For these reasons I agree with the submissions by the mother and the child representative that there is no basis for the father’s complaints about the conduct of the child representative.

COMPLAINTS ABOUT THE CHILD'S REPRESENTATIVE'S ALLEGED BIAS

The evidence relating to the bias issue

In this section I will set out the evidence relating to what I will call the "bias issue", deriving from the former judge's role with the firm one of whose partners is the child's representative.
The letterhead of the child's representative's firm discloses three partners, two consultants, one senior associate, and one associate. It also discloses, listed after the partners and before the consultants, a "special counsel", being a former judge of this court, who retired and shortly thereafter, in early 1999, took up his position with the firm. It seems that the father learned of the former judge's position with the firm when he received a letter from the child representative dated 10 January 2000.[18]
[18]Exhibit H1.
The child representative had previously acted in this capacity in 1995 and was re-appointed following an order by Steele J on 17 November 1999.
The former judge had, in 1993, made a decision in this case relating to the children. Mr Tonge said that he had made an adverse finding about the father. I understand this to be a reference to the remarks in the judgment quoted earlier. This is the basis of the claim of bias.
The father made it clear that he had no evidence of actual bias on the part of the child representative, the former judge, or Ms Christie. I agree with the mother’s submission that there is no evidence of anything done by the child representative to indicate that he had actually acted in a biased fashion against the father.[19] Further, as pointed out in the mother’s submissions, there is no evidence to suggest that until very recently, when the father raised the matter, the child representative knew about the former judge’s previous involvement in the proceedings.
[19]Mother’s submission page 13.
The question is thus whether a person in the position of the father would have a reasonable apprehension of bias. To put it another way, it is whether a reasonable person in the father’s position would reasonably perceive that the child representative would be able “to act with the objectivity and independence the Courts require from lawyers representing clients in litigation.”[20] I should mention that Mr Tonge spoke in the highest terms of the commitment, integrity and professionalism of the child's representative, and Mr Schroder adopted this submission. I have no reason to doubt that they are correct.
[20]Ipp J, at 94 (citing Black v Taylor [1993] 3 NZLR 403, 408-9), quoted in the mother’s submission paragraph 16.

The law on bias

So far as I am aware, the specific problem arising in this case is unprecedented. In addressing it, however, I think I should take into account legal principles relating to impartiality of a judicial officer, and those relating to the circumstances in which lawyers can properly act against former clients of the lawyer or the lawyer's firm.
Since the present application does not involve any question of bias by the decision-maker, authorities on that topic are not directly relevant. They are however indirectly relevant.[21] It will be sufficient to adopt as a statement of the law the following well-known passage from a judgment by Mason CJ:-[22]
The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-63; 9 ALR 551; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; 47 ALR 45). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established: (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4; Watson at p 262 Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-1). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[21]As in substance submitted by the mother in paragraphs 17-18
[22]Re JRL; Ex parte CJL (1986) 10 Fam LR 917, 922-923.

The law on lawyer's conflicts of interest

In this section I consider a body of law relating to problems arising where lawyers find themselves having a conflict of duties or loyalties.[23]
[23]See, eg, Disney and others, Lawyers, 2^nd ed 1986, chapters 21, 22; Stan Ross, Ethics in Law (Butterworths, 2^nd ed,1998).
The mother’s submission includes an extract from a very helpful discussion by Ipp J of lawyers’ duties to the court.[24] That article cites many authorities on the courts’ authority over legal practitioners. The authorities, though not dealing specifically with a case such as the present, emphasise the role of lawyers as officers of the court. For example, it has been said that:[25]
As part of their professional responsibility… solicitors and counsel must ensure that they do not appear in a matter in which they have a conflict of interest or where, by reason of their relationship with their client, their professional independence can be called into question.
[24]Ipp, J, “Lawyers Duties to the Court (1998) 114 LQR 63.
[25]Kooky Garments v Charlton [1994] 1 NZLR 587, 589.
The authorities on conflicting loyalties to clients or former clients generally involve issues relating to confidential information. As pointed out in the child representative's submissions, no question of confidential information arises in the present case. Nor is it a case where the solicitor or a partner has previously acted for a party against whom he or she is now opposed. But the approach of the courts, and the tests applied, may provide guidance both on the formulation of the test to be applied in the particular circumstances of this case.
The authorities exhibit a range of approaches to the problem. In the early case of Rakusen, the court held that the other partner of the firm could properly act against a former client, unless the court was "satisfied that real mischief and real prejudice will in all human probability result if the solicitor is allowed to act".[26] More recent cases in England suggest a somewhat more regulatory approach, for example "whether a reasonable man (sic) informed of the facts might reasonably anticipate" a danger.[27]
[26]Rakusen v Ellis, Munday and Clarke [1912] 1 Ch 831.
[27]Re a Firm of Solicitors [1992] 1 All ER 353, 361-2; Supasave Retail v Coward Chance [1991] 1 All ER 668, 673-4; Re a Firm of Solicitors [1996] 3 WLR 16.
Australian cases, including those dealing with such screening mechanisms as "Chinese walls", also seem to take a more regulatory approach than Rakusen, which has been considerably criticised. One refers to whether there is a "real and sensible possibility" of a misuse of confidential information.[28] Another line of authority goes further, holding in effect that solicitors have a duty to avoid placing themselves "in such a relation as might lead to there being even an unwitting breach of duty".[29] It seems, however, that the trend of Australian authority is most accurately captured in a test of a "real and sensible possibility of misuse" of confidential information.[30] Sometimes the firm or the client may take actions that satisfy the court that there is no real risk of prejudice or mischief.[31]
[28]Malleson v KPMG Peat Marwick (1990) 4 WAR 357, following D & J Constructions v Head (1987) 9 NSWLR 118; Boyce v Goodyear Australia Pty Ltd (CA, NSW, 16/9/1997, unreported).
[29]Mills v Dan Dawn Block Gold Mining Co Ltd (1882) 1 QLJ 63; Wan v McDonald (1992) 33 FCR 491; Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112, 118.
[30]Blackwell v Barroile Pty Ltd (1994) 123 ALR 81, 93, per Davies and Lee JJ, following the approach of Gummow J in National Mutual Holdings v Sentry Corporation (1989) 87 ALR 539.
[31]Freuhaul Finance Corp v Fees Ruthning (a firm) [1991] 1 Qd R 558.
Bryson J has noted the importance of justice being seen to be done:-[32]
“…the appearance that a lawyer can readily change sides during the currency of a case is very subversive of the appearance of justice being done".
[32]D & J Constructions v Head (1987) 9 NSWLR 118, 123 (Bryson J).
Although most of the cases deal with solicitors who are partners, in my view it is obvious that the same or similar principles would apply to others engaged in professional work within a firm: it is no answer to the father's complaint that the former judge is not a partner in the firm, and I do not think that argument was raised.[33]
[33]Professor Ross, cited above, refers to United States authority for the rather obvious point that the problem is not confined to communications between partners: Re Complex Asbestos Litigation (1991) 283 Cal Reptr 273 (paralegal); Allen v Academic Games Leagues of America Inc 831 F Supp 785 (1993) (newly qualified lawer who had worked for a party while a lawstudent), cited in Ross, above.
The authorities show an appreciation of subtle as well as obvious influence.[34] Thus Ipp J has said that "even with the best will in the world that the information would colour, at least subconsciously, the approach of the solicitors and influence them in the performance of the tasks".[35] It has been said in Canada that there is a strong inference that lawyers working together share confidences.[36]
[34]D & J Constructions v Head (1987) 9 NSWLR 118, 122-3 (Bryson J).
[35]Malleson v KPMG Peat Marwick (1990) 4 WAR 357.
[36]Martin v MacDonald Estate [1990] 3 Sup. Ct Reports 1235, cited in Ross, above.
I now turn to the family law cases in which this problem has been addressed. In Marriage of Thevenaz, Frederico J followed Mills, saying:-[37]
It may well be that the risks were he to do so are more theoretical than practical. However, it is asserted and not contradicted that material in the files does relate to confidences exchanged in the course of the former firm previously acting on behalf of both parties and would embarrass the husband. It is of the utmost importance that justice should not only be done but should appear to be done. In the circumstances of the present case, there is a risk which may well be merely theoretical but still exists, that justice might not appear to be done.
[37]Marriage of Thevenaz (1986) 11 Fam LR 95.
Similar approaches have been taken in other family law cases.[38] The authorities contain an interesting discussion of the extent to which the subject matter of family law makes it appropriate to take a particularly cautious approach. Arguably the Thevenaz line of authority is appropriate in family law matters, even if it is not followed in other areas. The features of family law that are said to be distinctive seem to me to be three. First, in the context of confidential information, because of many aspects of the parties’ lives must be taken into account by the court, especially in children's cases, a great deal of factual material could be possibly relevant.[39] Thus there may be a greater potential for the disclosure of relevant confidential information in these cases than in cases where the relevant factual material is more limited. Secondly, it is also suggested that in family law matters emotions typically run high and the decisions can have profound consequences for the lives of the parties and their children. While this is true, it is not immediately obvious that this characteristic should affect the courts’ approach to lawyers’ conflict of interests. Thirdly, determinations that have to be made often necessarily involve forming and articulating views about peoples' personal qualities. The second and third of these features of family law certainly arise in the present case.
[38]Marriage of Gagliano (1989) FLC 92-014; Marriage of Magro (1993) 93 FLR 365; Marriage of A and B (1989) 13 Fam LR 798 (Smithers J); Marriage of K R and S M Griffis (1991) 14 Fam LR 782 (Mullane J); Marriage of K H and M J Bennett (1991) 17 Fam LR 561.
[39]See the discussions in D & J Constructions v Head (1987) 9 NSWLR 118, 122-3 (Bryson J), Marriage of K H and M J Bennett (1991) 17 Fam LR 561 at 569, Australian Commercial Research and Development Ltd v Hampson [1991] 1 Qd R 508, at 516, 518 (Mackenzie J), Marriage of Magro (1993) 93 FLR 365, 778; compare the remarks of Renaud J in Marriage of R P and A A Gagliano (1989) 12 Fam LR 843 at 849.
The authorities were helpfully reviewed in Marriage of B J McGillivray and P K Mitchell where the Full Court wrote:-[40]
[17] The essential attack mounted by counsel for the husband on his Honour’s decision was — and this was the subject of the first ground of appeal (and it should be noted that it was conceded on behalf of the husband that if this first ground failed, then the appeal would fail) — that in reaching his decision, Tolcon J had erred in applying the law in relation to applications to restrain a legal practitioner from acting for a former client, as it was stated by Ipp J in Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357. Rather, it was submitted, Tolcon J should have applied the law as it has emerged from a line of decisions of the Family Court of Australia. In relation to this particular matter, counsel for the husband submitted that two different approaches have emerged as to when a court will intervene to require a lawyer to cease to act for a party on the ground that the lawyer has acted previously for an opposing party in the current litigation.
[18] The first approach, which counsel described as the “narrow” or “English” approach, was said to be that the court will only intervene when it is convinced both that a confidence has been reposed in a lawyer by a former client, and that it is probable that this confidence will be used in the subsequent proceedings to disadvantage the former client. On this approach the court will ignore merely theoretical risks. It was submitted that the principal authority which supports this approach is the decision of the English Court of Appeal in Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831; that decision has recently been followed in England in Re a Firm of Solicitors [1992] QB 959 at 972, 973–4, 977; and in Re a Firm of Solicitors [1996] 3 WLR 16 at 23–24; and in Australia in D & J Constructions Pty Ltd v Head (t/as Clayton Utz) (1987) 9 NSWLR 118 at 122; and in Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 362–3. (As indicated above, in the present case Tolcon J followed the last mentioned case).
[19] The second approach, which counsel described as the “broader” or “Family Court” approach, was said to be that the court will intervene if there is simply a reasonable apprehension that confidential information has been given to a lawyer by a former client and that there is at least a theoretical possibility that this information might be used to the disadvantage of that client. According to counsel this was the approach of: Frederico J in In the Marriage of Thevenaz (1986) 11 Fam LR 95; FLC 91–748; of Rourke J in In the Marriage of Magro (1989) 12 Fam LR 770; FLC 92–005; of Smithers J in In the Marriage of A and B (1989) 13 Fam LR 798; (1990) FLC 92–126; of Mullane J in both In the Marriage of Griffis (1991) 14 Fam LR 782; FLC 92–233 and In the Marriage of Kossatz (1993) FLC 92–386. It was also submitted that support for this approach could be found in the early Queensland case of Mills v Day Dawn Block Gold Mining Company Limited (1882) 1 QLJ 57.
[20] Counsel submitted that the justification for the adoption of this broader approach by the Family Court, as it emerges from the cases just cited, is that family law proceedings involve a wealth of diverse issues which cover a wide range of facts and a long period of time, and that family law proceedings involve issues which are very sensitive to the parties, and which therefore call for a more protective approach (as was recognised by Bryson J of the New South Wales Supreme Court in D & J Constructions at 123).
[21] It was submitted that under this broader approach, it is not necessary to establish that particular confidential information relevant to the particular case had been imparted to the lawyer now acting for the other side — although it was conceded that a bare assertion that knowledge must have passed was not sufficient. Rather what is necessary is that the applicant show a prima facie case that confidential information has been disclosed in relevant circumstances, and that this could simply arise from the nature of the prior proceedings.
[22] It was also submitted that under the approach adopted by the Family Court, it does not matter that any risk of disclosure of confidential information is more theoretical than real. Nor, it was submitted, is the passage of time between the present and previous proceedings relevant on the basis that knowledge once gained cannot be presumed to have been lost after a particular period of time has passed; nor is it necessary to justify an order that a lawyer cease to act, that the parties be the same in both the previous and present case.
[40]Marriage of B J McGillivray and P K Mitchell (1998) 23 Fam LR 238.

The Full Court did not need to choose between the two lines of authority: see paragraph [33].
Adapting these authorities to the present case, I think I should consider whether a person in the position of the applicant father would have a reasonable apprehension that the child representative might be influenced by the former judge, whether deliberately or unwittingly, in the child's representative's conduct of the matter on behalf of the children. If I find that the likelihood of there being influence is "more theoretical than real", I might have to decide which line of authority represents the law, and the extent to which the characteristics of family law require or permit a distinctive approach.

The father's false assumption that the Court would follow the child's representative's recommendations

Before dealing with what I think are the real issues, I should refer to two submissions by the father which I consider unpersuasive and mistaken.
In his submissions about bias, the father said in effect that the court might be expected to follow the child's representative's submissions, and that it would be a waste of time expecting it to do otherwise. One "might as well read the alphabet as make submissions" he said.
Mr Tonge submitted that this was an improper submission. It was, perhaps, more colourful than courteous, but I did not have the impression that the father wished to insult the Court, and proceedings such as this create great stress for everyone. It is enough to say that the father's submission is mistaken. The role of the child's representative has been clearly established, and I have already referred to some of the authorities. The child's representative does not make the decisions: the court does. Judges do not always agree with the child's representative submissions. It may well be that they often do. Children's representatives are (in my experience) well-qualified and diligent professionals who have the opportunity to review all the evidence on a non-partisan basis, and it would be surprising if they and the judges did not often reach similar conclusions.
It is nevertheless true, as the father said, that the child's representative's role is of critical importance, and that it is critical that the system should be perceived to be impartial. Anything that would give people a reason to believe that a child's representative might approach a matter in a biased fashion must therefore be carefully examined.

The impact on the father, or on the children

To some extent, the father's arguments appeared to be based on his, or the children's, actual perception of bias, as distinct from the perception of some hypothetical person.
The father's own perceptions of bias are not material. As I have indicated, many litigants who find the child representative takes a position different from theirs might have such perceptions.
The children's perceptions are a somewhat different matter. Children's perceptions may have special relevance, since their interests will be the paramount consideration when the court comes to decide what parenting order to make. However in this case there is no satisfactory evidence of what either child thinks of the role of the child's representative. The father referred to what the children might think about the matter later in life. This is highly speculative, and if in later life the children re-examine the matter, I suppose they might have access to the court's reasons for whatever ruling is made about the child's representative.
There is some evidence to the effect that the father has involved the children in the dispute. If this is so, they might perhaps adopt some of his views. But this could not be a proper reason for discharging a child's representative. Such an approach would mean, in effect, that a litigant could have a child's representative replaced by encouraging a child to have and express hostile views about the child's representative. Mr Schroder submitted that this was what the father was seeking to do in this case, "fishing for another child representative who might have a different view". Further, it may well be that if the father is influencing the children, they would be likely to become hostile to any child representative who took a view different from that of the father.[41]
[41]A similar point was made by Rourke J in Bennett, above.

Whether child representative should be removed on account of bias

Having disposed of what I consider to be mistaken submissions, I turn to what I regard as the more important submissions. I have already referred to the facts and the relevant principles of law. The critical question, I think, is whether a person in the father's position might reasonably believe that the child's representative would not be impartial, but would be prejudiced against the father by reason of his association with the former judge.
As in all such matters, much depends on the particular facts of the case. The former judge's findings were made in the delivery of a judgment, and are thus a matter of public record, and are of course known to the parties in this case. This is not a case about confidential information. On the contrary, the judge's whole knowledge of the case derived from evidence that was known to the parties, and his comments were equally public. Everything was "on the table", so to speak. And, as pointed out in the child representative's submissions, the role of the judge was not partisan but was "that of objective decision maker".
No statement was made, evidence given, or undertaking offered in relation to any past or future collaboration between the child's representative and the former judge relating to the case. I considered the possibility of having the matter re-listed so that any such evidence could be considered. I decided not to do so, however. If the child representative had sought to lead evidence or give undertakings to the effect that there had been and/or would be no communication with the former judge, and if that in the light of that material I had declined to remove the child representative, I might then have be seen to have assisted one side and thus not to have acted impartially.
The child representative's submissions states that:
the Judge's (sic) role within his new environment is different from that of a practitioner. He does not share in the caseload or administration of the firm not attend at the offices on a regular basis. He provides written advices and conducts mediations. His role is discrete.
There is no evidence of these matters, although I hasten to say that I have no reason to doubt the accuracy of the submission. However in my view the point is not what the former judge actually does, but what a reasonable person in the position of the father might assume he does.
In my view a reasonable person in the father's position might reasonably assume that the former judge would be likely to influence the conduct of the case by the child's representative. I think there are at least three possibilities. One is that the former judge might repeat his views, or expand on them, in conversations with the child's representative. Another is that the child's representative might consult with the former judge about the conduct of the case, and that the judge's adverse view of the father might underpin any resulting decisions. Another, more subtle, is that the child's representative might, perhaps unconsciously, feel uncomfortable in formulating and acting upon a favourable view of the father, knowing that it is inconsistent with the view that the former judge has, or at least had in 1993. To put this another way, the child's representative's close association with the former judge might create an initial assumption, even unspoken, that the father's position is lacking in merit.
Are such concerns theoretical or fanciful? It might be said that the former judge has had no involvement in the case since his judgment in 1993, and much has happened since then, and that neither the former judge or the child representative would consider that the former judge's view in 1993 was of much interest in deciding what should be done in the year 2000. However there is no evidence about this, and a person in the father's position might reasonably assume that the child's representative might have consulted with the firm's "special counsel" about the case. I cannot think of any ethical reason why the child's representative should not engage in such discussions. Indeed, if he considered that the former judge may have some insight into the matter, it might be thought to be part of his duty to the children to obtain what benefit he could from a conversation with such a convenient source of information or advice. I do not think the father could reasonably be expected to make any particular assumptions about what role the former judge might have in the firm generally or in his case in particular, although he would no doubt assume that the judge's role would be a senior and important one.
Again, it might be said that if the former judge were to be involved in the case, he would keep an open mind. In a recent case Hayne J has held, in an application that he disqualify himself from hearing a matter, that the mere fact that a judge has previously expressed a conclusion on a point of law will seldom if ever warrant a conclusion of appearance of bias.[42] However that case relates to a conclusion of law, not of fact.
[42]Helljay Investments v Deputy Commission of Taxation (1999) 74 ALJR 68.
Next, it might be said that any prejudice flowing from such conversations would be insubstantial, since the former judge's view is already on the record and it is hard to see how the matter could be taken any further even if there were conversation between the judge and the child's representative. But this would be to ignore the possibility that conversations with the judge would reinforce his views and impress them on the child's representative, or that he would express them in stronger terms than he had in the judgment (judges sometimes moderate the terms of their findings about character and the like to prevent unnecessary hurt to litigants).
It is important, I think, that in this case the judge's adverse finding was a point that would be of obvious relevance to the father's section 118 application, namely whether he expresses his hostility to the mother by unreasonably bringing applications. In that sense, the case for removal of the child's representative is stronger than it might be had there been only a tenuous connection between the judge's view and the subject matter of the impending proceedings.
I take into account the consequences of removing the child's representative. In this case, if the child's representative were removed, in my view it would be necessary to appoint another child representative. It is obvious, in my view, that such a course, assuming that another representative could be appointed, would involve additional costs. It would disadvantage the children by depriving them of a child's representative who is familiar with the case and substituting one who may need to subject them to further interviewing. In this respect the new child's representative would face a difficult dilemma. On one hand, he or she might feel it important to interview the children. On the other, doing so might well cause further stress for the children, and risk what has been referred to as institutional child abuse. There are obvious advantages in continuity.
It is submitted by the child representative that if the current child representative were removed, another "would not be delegated by the Legal Aid Commission". I do not think there is any basis on which I can make that assumption.
I now turn to the interests of the children. I have already indicated the importance of their interests in dealing with this matter. It is difficult to make firm findings prior to a hearing of the merits. It is reasonable to assume that other things being equal they would be disadvantaged by any delay in the hearing of any issues in these proceedings. They would almost certainly be disadvantaged if they were unrepresented in any further proceedings that might be heard. And I have found that there is no basis for complaint against the child representative’s conduct of the proceedings to date. On the other hand, their interests would not be promoted by a hearing that could be reasonably perceived as unjust. It is in their long-term interests, in my view, that any orders made should be according to justice. Otherwise, there would be less likelihood that the orders would be respected, and a greater likelihood that the dispute would fester. On balance, I do not think that the children’s interests would be promoted by refusing to make the order sought by the father.
It is necessary to balance all these matters. I consider that a reasonable person in the father's position, learning that the child representative, a partner in a small family law firm, has as "special counsel" to the firm a judge who had made an adverse finding against the father in earlier proceedings, a finding on the very matter in issue in the proceedings, might reasonably feel that the cards were stacked against him. That is, he might reasonably feel that the child's representative would be biased against him. In those circumstances, independence being essential to the role of the child's representative, he might reasonably feel that justice would not be done. I have taken into account the unfortunate consequences that would be entailed if the child's representative is to be removed.
In the end, having weighed up the matters to which I have referred, including the interests of the children, I have concluded that the principle that justice must be seen to be done is of such importance that in this case it is necessary that the child's representative be removed.
It is entirely regrettable that this situation has come about. I have already concluded that there is no substance in the specific complaints by the father against the child's representative. Mr Schroder submitted that the father had already shown hostility to the child's representative and that he has in effect seized on this matter as "another arrow in his quiver" to use the image of Mr Tonge. However, the problem is not of the father's making, and he is entitled to make the argument that the situation resulting from the former judge's position with the firm, in all the circumstances, creates a situation in which justice would not be seen to be done if the child representative is not removed.

A separate child's representative for each child?

The father submitted that a different representative should be appointed for each child. He submitted, in effect, that their positions were very different and that it would be appropriate for each to have a separate representative.
It might be argued that if time and resources for family law litigation were unlimited, each child should have a separate legal representative in all parenting cases. Whatever might be thought of this, such an approach is hopelessly unrealistic given limitations of court time and legal aid funds. It is in any case doubtful if such an arrangement would always be to the advantage of children. In practice, even where children's interests were significantly different, one child representative might well be able to ensure that appropriate evidence was put before the court, engage in appropriate testing of evidence, and make submissions that would helpfully identify the needs of each of the children and assist the court in making a determination.
It follows that the question whether different representatives should be appointed where there are several children must be answered by reference to the particular circumstances of the case, and taking into account such matters as the availability of legal aid funds. It would be a normal part of the child's representative's task, of course, to take whatever steps might be necessary to ensure so far as practicable that appropriate evidence of each child's wishes, interests and perceptions is before the court.
In the present case, the matter currently before the court is whether orders should be made that would permit the father to bring further applications relating to the children. I have already referred to the background of the parenting issues. That background indicates that the interests of each child may well not coincide. However I am not persuaded that, at least at this stage of the proceedings, it is necessary to appoint a separate representative for each child.

Orders

I will give consideration to the most appropriate form of order. I have no doubt, of course, that the child representative would stand down if the court so indicated, and I note that the mother’s submission suggests rather gracefully that the child representative be given the chance to stand aside. However the child representative may think it appropriate to test this ruling on appeal, and it is necessary therefore that there should be an order that could be the subject of appeal. I am inclined, therefore to make the following order:

That the child representative be restrained from further representation of the children in these proceedings.

I certify that the preceding 127 paragraphs are a true copy of the reason for judgment herein of His Honour Justice Chisholm

Associate

[2000] FamCA 351

15 March 2000