Thomas & Anor and Franklin & Anor
[2014] FamCA 1037
•21 November 2014
FAMILY COURT OF AUSTRALIA
| THOMAS AND ANOR & FRANKLIN AND ANOR | [2014] FamCA 1037 |
| FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR DISCHARGE OF INDEPENDENT CHILDREN’S LAWYER – BIAS – whether a reasonable person would reasonably consider the Independent Children’s Lawyer had formed a view adverse to their position based not solely on the evidence – consideration of the special role of the Independent Children’s Lawyer – application for discharge dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO EXCLUDE FAMILY REPORT – whether the Family Report writer complied with obligations under the Rules – whether there was a fundamental failure to consider all of the relevant information –report excluded. |
| Family Law Act 1975 (Cth) s68LA Family Law Rules 2004 (Cth) r15.51, 15.54, 15.59 Child Protection Act 1999 (Qld) |
| F and R (No. 2) (1992) FLC 92-314; (1992) 15 Fam LR 662 In the Marriage of Bennett (1990) 14 Fam LR 397 Lloyd and Lloyd and Child Representative (2000) FLC 93-045 P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1; (1995) FLC 92-615 Re K (1994) 17 Fam LR 537 Re P (a child): Separate Representative v JHE and GAW (1993) FLC 92-376; (1993) 16 Fam LR 485 Re R (1995) FLC 92-564; (1994) 18 Fam LR 370 |
| FIRST APPLICANT: | Mr Thomas |
| SECOND APPLICANT | Ms Thomas |
| FIRST RESPONDENT: | Ms Franklin |
| SECOND RESPONDENT | Mr Lowther |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 2356 | of | 2013 |
| DATE DELIVERED: | 21 November 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 22 July 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPLICANTS: | Honeychurch Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Tucker |
| SOLICITOR FOR THE FIRST RESPONDENT: | Carroll Fairon Solicitors |
| THE SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Walker-Munro |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That no party have leave to rely on the Family Report prepared by Mr C.
That the parties are restrained and an injunction issue restraining each of them from providing a copy of the Family Report prepared by Mr C to any person.
That the Independent Children’s Lawyer forthwith arrange for the preparation of a further Family Report for use in the proceedings.
That the application for the discharge of the Independent Children’s Lawyer is dismissed.
That the application by the Independent Children’s Lawyer that the Applicants pay costs is dismissed.
That the Applicants’ Application for leave to provide a copy of all relevant material, including the records of the Department of Communities, Child Safety and Disability Services (the Department), Family Reports and any child assessments to all of the child’s treating medical practitioners is adjourned to the next interim hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas & Franklin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2356 of 2013
| Mr Thomas |
First Applicant
And
Ms Thomas
Second Applicant
And
| Ms Franklin |
First Respondent
And
Mr Lowther
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The Court is asked to determine the Applicants’ Application[1] that:
a)the appointment of Mr C as the “single joint expert” in the proceeding is terminated and a further Family Report be prepared by a person other than Mr C; and
b)the Family Report exhibited to the affidavit of Mr C filed 31 January 2014, (the Report) prepared by Mr C, not be “entered into evidence” at the trial of the matter and that no party be permitted to rely upon it;
c)the appointment of Ms Jensen as the Independent Children’s Lawyer – a matter which followed the Order made 23 August 2013 - is terminated and an alternative person is appointed to that role;
d)leave be given to the Applicants to provide a copy of all relevant material, including the records of the Department of Communities, Child Safety and Disability Services (the Department), Family Reports and any child assessments to all of the child’s treating medical practitioners.
[1] Amended Application in a Case filed 16 May 2014.
The Application is opposed by both the mother and the Independent Children’s Lawyer.[2]
[2] Response to an Application in a Case filed 11 June 2014.
Counsel for the Applicants did not press that part of the Application which sought that, in determining the Application, the Court grant leave to the Applicants to cross-examine the Independent Children’s Lawyer. This is, of course, relevant to the application for costs by the Independent Children’s Lawyer, which also requires determination.
The circumstances which led to the parties’ involvement in proceedings before the Court may be gleaned from a perusal of the Reasons for Judgment delivered on 23 August 2013.
That part of the Application which relates to the Family Report
Mr C, a psychologist previously employed by Legal Aid Queensland, authored the Family Report after conducting interviews on 12 December 2013. It is uncontroversial that an updated Family Report is likely to be required by the time this matter is ready for trial and that, because he is no longer employed by Legal Aid Queensland, this will be prepared by a person other than Mr C.
In this circumstance, it might have been thought there is little utility in the current application. However, it is very clear[3] that both the mother and the Independent Children’s Lawyer intend to rely on the contents of the Family Report at the yet to be listed interim hearing of the mother’s application for interim parenting orders.[4]
[3]See: correspondence from the mother’s solicitor to the Independent Children’s Lawyer dated 11 February 2014 (Exhibit "LMH 5", affidavit of Ms S filed 16 May 2014) and written submissions relied upon by the Respondent and the Independent Children’s Lawyer.
[4] Filed 13 March 2014.
Such reliance by the mother is unsurprising given that the Family Report recommends that the child R (“the child”), born in 2010, move from the Applicants’ care to live with her and that the Court impose a 12 month moratorium over his time with the Applicants.
Mr C is the person from whom the Independent Children’s Lawyer obtained a report for use in the proceedings. His evidence is intended to be received as that of an expert witness. He is not a “joint single expert” nor is he a single expert witness in this proceeding. There is no appointment as a ‘single expert witness’ which can be ‘terminated’ as sought by the Applicants.
An Independent Children’s Lawyer is in a special position vis-a-vis the parties in respect of the tendering of reports at a hearing or trial. Rule 15.51 (2) of the Family Law Rules (2004)(the Rules) provides that an Independent Children’s Lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the Court’s permission. This distinguishes the position of the Independent Children’s Lawyer from that of a party who must apply for the Court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.[5]
[5] Rule 15.51 (1) of the Rules.
The mother and Independent Children’s Lawyer oppose the orders sought in relation to the Family Report on the basis that the proper time for a challenge to its contents is at trial where those matters relied on by the Applicants as providing the basis for the orders they seek can be put to Mr C and answered by him.
It is correct to suggest that, when a party takes issue with the evidence given by a witness called in another party’s case, the “usual” course is to have the witness vigorously cross-examined at the final hearing. However, this is not the only option.
Section 69ZR of the Family Law Act1975 (Cth) clearly empowers the Court to make determinations, findings and orders at any stage in proceedings, such as this, to which Division 12A of the Act applies.
I accept that where, as here, a Family Report which is the subject of significant challenge is to be relied on at the hearing of an application for interim parenting orders, the Court can and, in this case, properly should consider and determine the challenges made to it prior to that hearing. Such consideration must, of course, take into account that no cross-examination has taken place, with the consequence that matters of disputed fact are likely to be difficult to resolve.
In the present case, the substance of the Applicants’ challenge to the Family Report may be refined to the following:
a)the asserted failure by Mr C to discharge the duties imposed on him by the Rules; and
b)that the contents of the Family Report reveal that Mr C brought a preconceived view adverse to the case of the Applicants – as former foster carers for the child - for parenting orders for the child; and
c)criticisms of the manner in which the Family Report considered, or failed to consider, the content of documents produced by the Department.
What do the Rules require of expert witnesses?
The duties imposed by the Rules[6] on an expert witness arise when that witness receives instructions or is told by a party that the witness may be called to give evidence in a case.[7] Mr C became subject to those duties when he was engaged by the Independent Children’s Lawyer to prepare the Family Report: see the ‘Expert Report Referral’[8] (the Referral), clearly designed to comply with the requirements imposed by Rule 15.54(2).
[6] Rule 15.59.
[7] Rule 15.59 (4) of the Rules.
[8] dated 4 December 2013.
Is Mr C an ‘expert witness’?/ Asserted failure to comply with duty as an expert witness
In challenging the receipt and use of the Family Report, the Applicants contend that Mr C has, within it, expressed ‘personal’ opinions and/or views - rather than those based on the evidence available to him – such that he should not be regarded as an ‘expert witness’ (as that term is defined in the Rules) for the purpose of this proceeding. It is further contended that if he is, in fact, regarded as an expert witness, he has failed to discharge the duties imposed by the Rules on such persons.
The terms ‘expert’ and ‘expert witness’ are defined in the Dictionary of the Rules as meaning:
Expert: “an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.”
Expert witness: “an expert who has been instructed to give or prepare independent evidence for the purpose of the case.”
It is immediately apparent from these definitions that, in addition to the requirement for the possession of relevant specialised knowledge based on training, study or experience, “independence” is the hallmark of, and prerequisite for, a person to be considered both an “expert” and an “expert witness” in proceedings.
The term “independent” is not specifically defined in either the Act or the Rules. Included within its ordinary meanings are: “impartiality, being separate from and not being connected with something else”.
Thus, it may easily be concluded that a witness is not an ‘expert witness’ unless that person is an ‘impartial’ person with relevant specialised skill, knowledge and training who has been instructed to give or prepare ‘impartial’ evidence for the purposes of the case and who has, in fact, given ‘impartial’ evidence.
Under the Rules, an expert witness has a duty to:
a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability; and
b)consider all material facts, including those that may detract from the expert witness’s opinion.[9]
[9] Family Law Rules 2004 r15.59
It is to the necessary prerequisites of ‘impartiality’, ‘objectivity’ and an ‘unbiased opinion’ and the requirement to consider all material facts – including those which may detract from the expert witness’s opinion - that the thrust of the submissions made by Counsel for the Applicants is directed.
The Applicants additionally submit, in essence, that Mr C’s failure to review relevant material (despite a request to do so), failure to seek input from the child’s speech pathologist and treating psychologist and failure to review the Review Report in any meaningful way means that his report has proceeded on such a factually inaccurate or deficient basis that the opinions expressed within it are not objective or are of so little probative weight as to render such report irrelevant.
Asserted failure to give an objective, unbiased, independent and impartial opinion
Mr C’s affirmation that the opinions he expresses in the Family Report are independent and impartial[10] is nothing more than an expression of opinion about a fact to be established: it remains for the Court to determine whether, in fact, the expressed opinions are independent and impartial.
[10] Paragraph 4, Family Report, affidavit of Mr C filed 31 January 2014.
The Applicants point to a number of matters contained within the Family Report as evidencing Mr C’s failure to give an objective, unbiased, independent and impartial opinion.
For example, at paragraph 49, Mr C expresses the following as a “comment”:
“I am of the opinion that Ms [Thomas] has created a script, from her adolescent experience, that when a child is removed that child does not go back…..”[11]
[11] and again at paragraph 124, Family Report, affidavit of Mr C filed 31 January 2014.
Taken in context, the ‘removal’ referred to is clearly a reference to a child being placed with carers other than that child’s biological parents.
Given that it was referred to by Mr C on two occasions in his report, Counsel, in essence, submitted that this statement, sweeping in nature, appears to have been highly relevant to his ultimate opinion. Additionally, the Applicants assert that the comment is based on inaccurate information, an absence of evidence and ignores their evidence that, in fact, they have been supportive of the reunification of many of the over 30 foster children for whom they have cared – in particular, of these, the child R is the only child whose reunification the Applicants have not supported because of their expressed concerns about his physical, emotional or psychological welfare.
There is nothing in the Departmental records – the Review Report or otherwise – to contradict the information provided by the Applicants about this. Thus, there does not appear to be any factual basis for Mr C’s ‘comment’ or opinion.
Further, at paragraph 129 of the Family Report, Mr C says:
Ms [Thomas] argues that she is [the child’s] mother psychologically, and consequently her role should usurp that of a biological parent who has been independently assessed as being willing and able to parent.[12] (my emphasis)
[12] Paragraph 13, Family Report, affidavit of Mr C filed 31 January 2014.
The phraseology used is reminiscent of that contained within the Child Protection Act 1999 in which the assessment undertaken is to determine whether there is a parent who is “able and willing.” [13] The use of such language and reference to the test applied in child protection proceedings pursuant to State legislation – where the test is whether there is a parent able and willing to care for a child – is, I think, suggestive of a predetermined (albeit, perhaps, subconscious) view that a biological parent should automatically prevail over non-parents when a biological parent is “willing and able” to parent.
[13] Child Protection Act 1999 (Qld) ss 5B, 10, 59.
In addition, Mr C commences his “Summary and Discussion” with the assertion that the Applicants ‘contracted’ with the Department to be foster parents but it appears they “now seek to establish a new contract in a different jurisdiction”. He also expresses the opinion that their behaviours have “grave implications for other children placed in care.”[14]
[14] Paragraph123, Report dated 31 January 2014, Affidavit of Mr C filed 31 January 2014.
Such comments suggest to me that Mr C’s focus is on this broader aspect of this issue, rather than on assessing what care arrangements are in the child’s best interests in the particular circumstances in which the child finds himself.
The Applicants submit in essence that, when taken in combination, the comments, opinions and assertions outlined above, indicate and demonstrate that Mr C brings a preconceived and predetermined view to his assessment of the child’s circumstances and one that indicates an absence of impartial opinion and an underlying personal bias against foster carers like the Applicants who have later sought parenting orders in this Court.
Alternatively, it is submitted that, even if the Court does not conclude that Mr C in fact failed to provide an objective, unbiased, independent and impartial opinion, a reasonable person standing in the shoes of the Applicants reading the Family Report would conclude this.
I accept that, given the manner in which Mr C expressed the opinions outlined above, it is more likely than not that he commenced his assessment of the competing proposals for parenting orders for the child with the preconceived view that he should live with his biological parent as long as she was ‘willing and able.’
I also consider that, when taken in combination, the opinions expressed by Mr C and the manner in which he chose to express them may well appear to a reasonable person standing in the shoes of the Applicants to be the expression of a personal opinion about whether foster parents ought have rights in this Court to advocate for, and seek orders in relation to, children placed into their care by State authorities.
Irrespective of whether, in fact, such opinion negatively impacted on Mr C’s ability to prepare an objective report addressing and considering those matters statutorily relevant to a determination of the orders which are in the child’s best interests, it appears to me that a reasonable person standing in the Applicants’ shoes may well conclude that it has.
Such person may well conclude that Mr C has not considered only the child’s best interests in arriving at his recommendations but, rather, those of other children in foster care and that his focus has been on assessing possible ramifications for other children living with foster carers rather than upon a consideration of the matters relevant to an assessment of those Orders which are in the child’s best interests.
Additionally, the strength of Mr C’s statements is likely to suggest to a reasonable person reading the report that, whatever the evidence, as long as he determined that the mother was willing and able to care for the child, his recommendations would be supportive of such a result.
I think it likely that a reasonable person standing in the shoes of the Applicants may well conclude from the language Mr C chose to use and its underlying intent that Mr C brought to his assessment of this parenting matter and the parenting regime which is in the child’s best interests a predetermined view rather than arriving at one based on a consideration of the material available to him.
Asserted failure to consider all material facts including those which may detract from the witness’s opinion
The Applicants submit Mr C:
a)failed to have regard to or failed to have proper regard to the Case Review Report[15], prepared by a Ms U after the Regional Director[16] requested, on 28 June 2013, that the child’s case be reviewed (the Review Report) – described accurately, I think, as containing “significant and crucial” information; and
b)failed to speak with the child’s treating psychologist, despite being told she had information relevant to his assessment.
[15] Annexure “KT1”, affidavit of Ms Thomas filed 25 February 2014.
[16] Regional Director of the Department’s South East Region.
The Review Report is a review of the Departmental material relating to the child. It contains an assessment of the basis on which the decision to reunify him with the mother had been made. It identifies and recounts significant deficiencies in the Department’s approach to that decision. It also identifies significant errors, both of a positive nature and by omission, in the account provided by Dr L, a Departmental employee, in his affidavit. Hence, the Review Report contains highly relevant information which places the contents of Dr L’s affidavit in context.
This is of particular significance given that the Independent Children’s Lawyer had provided Mr C with a copy of Dr L’s affidavit.[17]
[17] Page 7, Annexure “A”, affidavit of Mr C filed 31 January 2014.
I am satisfied that the Independent Children’s Lawyer provided Mr C with a copy of the Review Report once it was available to her. I arrive at that conclusion having regard to the fact that, whilst referring, inaccurately, to the ‘Case Review Report dated 28 June 2013 and authored by the Regional Director,[18] the quoted content following this reference is, in fact, found at page 22 of the Review Report – as accurately noted by Mr C.
[18] Paragraph 18, Family Report, affidavit of Mr C filed 31 January 2014.
I also accept, however, that the Applicants’ concern about whether Mr C had been given access to the Review Report was understandable given the fact that it was not specifically mentioned in the Referral.
It is, I think, highly likely that such concerns were heightened given that the Family Report contains no specific reference to the Review Report’s conclusions that the Department’s reunification of the child with the mother should not have occurred.
The Review Report and the asserted failure to consider all material facts?
A failure to review every page of often voluminous subpoenaed documentation - as is the case here – may not necessarily mean that the author of a Family Report has failed to consider all material facts. Such facts may, of course, be found elsewhere and the voluminous material may contain nothing more than a repetitive recitation of something already known to the report writer.
In considering the Applicants’ submissions about the Review Report and Mr C’s failure specifically to note certain aspects of it in the Family Report, it is necessary to have regard to the matters Mr C identified as those relied for the opinions expressed in the Family Report and to consider whether close reference to the contents of the Review Report is likely to have made any difference to the same.
Mr C recounts that the Applicants “interpreted” the mother’s behaviour in not having any contact with the child during the 12 month period she was living in Melbourne as “indicative” of her abandoning him.[19] In fact, the Department expressed the same conclusion.[20]
[19] Paragraph 9, Family Report, affidavit of Mr C filed 31 January 2014.
[20] Affidavit of Ms Thomas filed 11 April 2013, at Annexure KT9.
Mr C proceeded on the basis that ‘there is no involvement by the Department of Communities-Child Safety in relation to [B].’[21] This is not accurate as would have been made clear if Mr C had paid proper regard to the Review Report.[22]
[21] Paragraphs 11 and 91, Family Report, affidavit of Mr C filed 31 January 2014.
[22] See for example Review Report at page 9.
Mr C asserts that ‘the Department found that Ms [Franklin] was meeting Case Plan goals…”.[23] This is not accurate as would have been made clear if proper regard had been paid to the contents of the Review Report.
[23] Paragraph 16, Family Report, affidavit of Mr C filed 31 January 2014.
Mr C expresses[24] his understanding that problems with speech can be indicative of emotional neglect. He continues to say that, if it is the case that emotional neglect precipitates speech problems, this could have “implications” for the child’s care when in his foster parents’ home.[25]
[24] Paragraphs 23 and 24, Family Report, affidavit of Mr C filed 31 January 2014.
[25] Paragraph 24, Family Report, affidavit of Mr C filed 31 January 2014.
The clear inference is that, if there are speech problems, the presence of the same may suggest the child may have been neglected whilst in the Applicants’ care: a view completely at odds with the Department’s assessment of the Applicants as exemplary foster carers.[26] Additionally, Mr C expressed these comments without taking advantage of the opportunity - which was available to him - to speak with the child’s speech pathologist.
[26] See Review Report at page 9, 10.
Mr C says that he could not find subpoenaed documentation which would indicate the child was at risk of, or exposed to, family violence on return to his mother’s care. However, the contents of the Review Report, may suggest otherwise.[27]
[27] Review Report, page 21-25.
Additionally, Mr C stated:
In the context of this assessment, Ms [Franklin] is assessed to be a capable and committed parent. There are no indicators of risk associated with her parenting of [the child]. This would appear to be consistent with assessment results of the mother made by Department officers and the manager when a decision was made to reunify [the child] with his mother.[28]
[28] Paragraph 136, Family Report, affidavit of Mr C filed 31 January 2014.
Whilst this assertion is accurate in the sense that Departmental officers proceeded with the child’s reunification with the mother, it fails to record that the Review Report contains significant criticism of the manner in which various Departmental officers assessed and managed that reunification.
I accept that the Family Report fails to outline properly the contents of the Review Report. It fails to note the more recent and significant findings contained in the Review Report. Instead, it proceeds on the basis that the very matters about which Departmental officers were criticised in the review Report remain accurate.
For example, Mr C proceeded to assess the mother’s capacity to parent the child on the basis she had met the goals of the Department’s various Case Plans and ignored the Review Report conclusions that, in fact, the mother had not met these goals and that the child remained at risk of abuse at the time of reunification. Further, Mr C makes no mention at all of the Review Report’s contention that long-term guardianship options – rather than reunification - ought to have been sought by the Department for the child.[29]
[29] Review Report at pages 17-21.
Counsel in effect submitted that, such is Mr C’s personal opinion about the “proper” role of foster carers such as the Applicants, he failed to refer in the Family Report to the information contained within the Review Report and instead referred only to select Departmental case notes which supported his opinion that the child ought live with his biological mother: in essence, it is submitted Mr C deliberately failed to mention the contents of the Review Report where these were adverse to the mother and that, in doing so, he manifested a lack of objectivity and failed to have regard to those parts of the material inconsistent with, and inconvenient for, his overall recommendation that the child return to live with the mother.
Whilst I am not prepared to reach conclusions about intention in the absence of the opportunity to observe Mr C being cross-examined about such matters, I am persuaded that his failure to mention the many relevant matters contained within the Review Report and deal with the same as part of his assessment of the competing parenting proposals means that he has failed to discharge the duty imposed by the Rules upon expert witnesses.
Asserted factual inaccuracies within the Report
Ms Thomas identifies a number of asserted factual errors within Mr C’s report. Of course, a definitive conclusion in relation to such assertions is difficult to reach given the interim nature of this proceeding.
Consequently, I do not consider it open to me to place significant weight or reliance upon assertions of factual error unless the same can be made out or substantiated by reference to corroborative written material produced pursuant to subpoena and having its source in persons other than the parties to these proceedings.
Taking this into account, the following can be said:
a)Mr C said[30] the Applicants interpreted the mother’s lack of contact with the child during the 12 months she lived in Melbourne as indicative of her abandoning the child in circumstances where, in fact, the Department’s correspondence[31] contains the conclusion that “both parents have abandoned [the child] at this stage”;
b)Mr C[32] stated “there is no involvement by the Department of Communities - Child Safety in relation to [B]” and further that “there was a one-month intervention by the Department in relation to [B]” despite:
i)the evidence revealing that B was under a Child Protection Order at the time he was returned to the mother;
ii)the Review Report referring[33] to inaccuracies contained within Dr L’s affidavit: namely, that it did not “clarify” that although [B] was returned to his mother’s care, he was assessed at the time as being at an unacceptable risk of physical abuse and neglect (with the mother being recorded as the person responsible) and “in need of protection” and that this Court was not informed that the Department had applied for a Child Protection Order to supervise B’s ongoing protection and care needs while he resided with his mother.
c)Mr C refers[34] to a statement made by a Departmental officer who was informed that the child’s carers were resistant to and not supportive of the child’s reunification in circumstances where the Review Report notes that such information came from the mother, was made to an officer who had never met the Applicants and did not seek information from them and Departmental records demonstrate a high level of participation and co-operation by the Applicants, particularly in terms of facilitating and supporting ongoing family contact and relationships between the child and his mother and grandmother and providing updates about the child’s health, development and well-being and that the Applicants were said to have appeared to provide an exceptional level of care to the child for the period he was part of their family.
[30]at paragraph 9 of the Family Report.
[31] dated 3 May 2011.
[32]at paragraph 11 of the Family Report.
[33]at page 9 Review Report.
[34]at paragraph 18 of the Family Report.
The Applicants also submit that Mr C deliberately misrepresented critical facts in order to support what they regard as his predetermined conclusion that the child should be reunified immediately with the mother and spend no time at all with them. Again, in the absence of the opportunity to see Mr C cross-examined, I am not prepared at an interim hearing to reach such a conclusion.
I do, however, conclude that a reasonable person standing in the Applicants’ shoes may reasonably conclude that Mr C acted in such a manner and that, by doing so, he failed to discharge the obligation to proffer an independent, objective and unbiased opinion about matters such as the Applicants’ parenting capacity and support for the child’s relationship with the mother and members of his extended maternal family.
Failure to speak with the child’s psychologist
Despite the Independent Children’s Lawyers’ request[35] that he do so, Mr C did not speak with the child’s treating psychologist during the preparation of the Family Report.
[35]In a manner envisaged by Rule 15.54(2)(b), the Referral clearly outlined that the Independent Children’s Lawyer wanted Mr C to speak with the child’s psychologist and the authority required to facilitate this communication was, as advised , duly obtained and provided.
The Applicants’ solicitor took issue with this in correspondence dated 31 January 2014[36] in which she queried how Mr C was able to comply with the obligations imposed on him by the Rules given his failure to engage with the child’s treating psychologist. There is nothing in the material to suggest that Mr C remedied the situation after this correspondence or that the Independent Children’s Lawyer directed him to do so.
[36] Exhibit "LMH 4", affidavit of Ms S filed 16 May 2014.
In fact, the Independent Children’s Lawyer submitted Mr C’s failure to speak with the child’s treating psychologist is a matter which should be raised with him during cross-examination at the final hearing. I consider this an unsatisfactory response given that Mr C failed to comply with her request that he speak with the psychologist.
The Applicants submitted, in essence, that Mr C deliberately acted as he did to enable him to formulate a report supportive of his ‘personal preference’ and to ensure he was relieved of the obligation to deal with and address information which may have been inconsistent with that opinion. Again, in the absence of any cross-examination of Mr C through which he could express his rationale for not complying with the Independent Children’s Lawyers request, I am not prepared to reach such a conclusion.
However, I do consider that, irrespective of whether Mr C in fact proceeded with the suggested intention, a reasonable person standing in the Applicants’ shoes may reasonably reach such a conclusion – especially when this omission is considered in combination with the matters to which I have already referred.
The significance, if any, of Mr C’s decision not to read the Reasons for Judgment delivered 26 August 2013
Counsel for the Applicants criticised Mr C’s decision not to have regard to the Reasons for Judgment delivered on 26 August 2013. The Independent Children’s Lawyers’ evidence makes it clear that Mr C did not wish to be briefed with these Reasons because he did not want the contents of this document to influence his report.
Whilst there seems to me to be nothing improper with an expert preferring to approach their assessment of any matter afresh and untainted by judicial pronouncement, I would have thought a prudent approach would have been to peruse the Reasons at some time prior to completing the Family Report, whether before or after the parties had been interviewed or before or after the review of the accompanying material.
If Mr C had adopted that course in this proceeding, he would have seen that, after carefully reviewing the source documents provided by the Department, I had arrived at conclusions substantially different to those proffered by Dr L in his affidavit and substantially similar to those expressed within the Review Report. The expression of such differences – and the rationale provided for them - may have alerted Mr C to the necessity to have close regard to the Department’s source documents themselves, including the Review Report, rather than Dr L’s affidavit.
Overall conclusions about the Family Report
I have concluded that the deficiencies in the Family Report are such that it does not amount to the expression of expert opinion. I am persuaded, for the reasons outlined above, that Mr C failed to discharge the duties imposed on him by the Rules.
Additionally, I am persuaded that an independent objective observer would conclude that Mr C had brought a pre-determined view to his assessment of the matter.
Having regard to the matters discussed above and for the reason expressed above, I am persuaded that a reasonable person in the Applicants’ position would reasonably entertain a reasonable apprehension that Mr C did not bring an impartial and unprejudiced mind to his consideration of the relevant issues and that he did not, as a consequence of the absence of an impartial and unprejudiced mind, act with the objectivity and independence required by the Court of an expert witness.
I am persuaded that the deficiencies of the Family Report are such that it should not be received into evidence, even taking into account the impact of Division 12A of the Act on the applicability of the provisions of the Evidence Act.
Given its inaccuracies and the associated potential that it might mislead the author of the further Family Report which will now be necessary, the parties will be restrained from disseminating it to any other person.
Application to discharge the Independent Children’s Lawyer
The Court has power to appoint a lawyer to independently represent a child’s interests in proceedings.[37] The Independent Children’s Lawyer was appointed by Order made on 23 August 2013.
[37] s 68L Family Law Act.
On appointment to that role, she became subject to the operation of s 68LA of the Act which imposes the following obligations on any person undertaking the role as Independent Children’s Lawyer:
a)to form an independent view, based on the evidence available of what is in the best interests of the child; and
b)to act in relation to the proceedings in what that person believes to be the best interests of the child; and
c)if satisfied that the adoption of a particular course of action is in a child’s best interests, to make a submission to the Court suggesting the adoption of that course of action; and
d)to act impartially in dealings with parties to the proceedings; and
e)to ensure that any views expressed by the child in relation to the matters to which proceedings relate are fully put before the Court; and
f)to analyse any report or other document, which relates to the child, which is used in proceedings so as to identify those matters considered to be the most significant ones in determining what is in the best interests of the child and ensure that those matters are properly drawn to the Court’s attention; and
g)to endeavour to minimise the trauma to a child associated with the proceedings; and
h)to facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in a child’s best interests.
In P and P and Legal Aid Commission of NSW,[38] after referring to Bennett[39] and Re K,[40] the Full Court said:-[41]
[38]P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1; (1995) FLC 92-615.
[39] In the Marriage of Bennett (1990) 14 Fam LR 397, particularly at Fam LR 404–5.
[40] Re K (1994) 17 Fam LR 537.
[41]P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1, 32-33; (1995) FLC 92-615.
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.
The Court has power to remove a person appointed to act as an Independent Children’s Lawyer in a particular matter.[42] A person appointed to act as an Independent Children’s Lawyer in a matter may be removed if there are proper reasons for doing so, such as a meritorious complaint about the conduct of the person in their role or where there is a reasonable apprehension that the Independent Children’s Lawyer will not deal with the matter impartially.
[42]F and R (No. 2) (1992) FLC 92-314; (1992) 15 Fam LR 662; Re P (a child): Separate Representative v JHE and GAW (1993) FLC 92-376, (1993) 16 Fam LR 485; T v L (2000) FLC 93-056; (2000) 27 Fam LR 40; [2000] FamCA 351; Lloyd and Lloyd and Child Representative (2000) FLC 93-045.
A question to be asked, therefore, is whether, given the significant discretion any Independent Children’s Lawyer has in the manner in which the role is carried out and the statutory obligations discharged, an Independent Children’s Lawyer is carrying out his or her task properly and impartially. It is clear that a mere failure to comply with any guidelines expressed from time to time does not, of itself, indicate that an Independent Children’s Lawyer has acted with any impropriety.[43]
[43] Re R (1995) FLC 92-564; (1994) 18 Fam LR 370.
In T & L (2000) FLC 93-056 Chisholm J considered an application for the discharge of an Independent Children’s Lawyer which involved complaints about the conduct of the matter and the suggestion that an appearance of bias arose from the fact of a former judge’s involvement as special counsel at the firm in which the Independent Children’s Lawyer was employed.
His Honour commented that[44]:
… 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.
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 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.”
[44] See paragraphs 53-55.
It is uncontroversial that the Court should not readily discharge an Independent Children’s Lawyer based upon the unsubstantiated complaints of one of the parties – to do so would obviously mean that a party disenchanted by the approach taken, or views expressed, by an Independent Children’s Lawyer in a matter could obtain the removal of the same for forensic advantage.
The Independent Children’s Lawyer says she is still in the process of forming a view in relation to whether to support the mother’s application that the child live with her.[45] She notes her opinion that the Applicants were very resistant to any increased time between the mother and the child prior to the release of the Family Report but, more recently, agreement has been reached for him to spend additional time with the mother and that not all of this was being used by her for various reasons.[46]
[45] Affidavit of Suzanne Jensen filed 11 June 2014, paragraph 35.
[46] Affidavit of Suzanne Jensen filed 11 June 2014, paragraph 40.
It was not submitted that the Independent Children’s Lawyer is incompetent in a professional sense.[47] I am not persuaded that the Independent Children’s Lawyer has a conflict of interest. There is nothing to suggest that the Independent Children’s Lawyer has acted in a manner contrary to the child’s best interests.
[47]The Independent Children’s Lawyer was admitted to the Supreme Court of Queensland on 7 November 1994 and, thereafter, to the High Court of Australia. She participated in training as an Independent Children’s Lawyer in July 2005. She was admitted to the panel of Independent Children’s Lawyer’s in March 2006 and commenced undertaking work in the role of Independent Children’s Lawyer in late August 2006. In addition, having previously undertaken training in the field of child protection, she has been on the panel with Legal Aid Queensland as a separate representative in child protection matters from 2005 onwards.
Counsel for the Applicants submitted that the Court would conclude, however, that the Independent Children’s Lawyer has demonstrated actions which amount to actual bias or which provide a basis for an apprehension of bias and/or that it is demonstrated that she lacks professional objectivity.
I agree with the comments of Chisholm J in T & L[48] to the effect that:
a)the role of an Independent Children’s Lawyer is of critical importance; and
b)it is critical the system should be perceived to be impartial; and
c)anything that would give people (such as the Applicants) a reason to believe that the Independent Children’s Lawyer might approach the matter in a biased fashion must be carefully examined.[49]
[48] (2000) FLC 93-056.
[49] at paragraph 101.
The question for determination is whether a reasonable person in the Applicants’ position would reasonably entertain a reasonable apprehension that the Independent Children’s Lawyer might not bring an impartial and unprejudiced mind to the resolution of the issues or might not, as a consequence of the absence of an impartial and unprejudiced mind, act with the objectivity and independence required by the Court of an Independent Children’s Lawyer.
A critical question, I think, is whether a reasonable person in the Applicants’ position reasonably entertain a reasonable apprehension that the Independent Children’s Lawyer might not bring an impartial and unprejudiced mind to the resolution of the issues relevant to the competing parenting proposals or might not act with the objectivity and independence required of her because she has previously expressed the view that: the Department would not have been successful in any application for a protection order in relation to the child and the child would have been reunified with the mother
I accept that, in considering the application to remove the Independent Children’s Lawyer, I should also have regard to the additional cost which will, of necessity, result from such a decision and the delay associated with the appointment of a person to replace the current Independent Children’s Lawyer.
Whilst it is clear that the Court is not bound to accept the views/submission of an Independent Children’s Lawyer, and often does not do so, it is a trite observation to say that the views of the Independent Children’s Lawyer often impact significantly on the manner in which evidence is presented: especially given that a Family Report may be adduced without leave. Whilst recognising this, as this case itself makes clear, a party to proceedings in the Court is not beholden to the views expressed by an Independent Children’s Lawyer because it is the Court and not the Independent Children’s Lawyer which must determine those orders which are in the child’s best interests.
Overview of the Independent Children’s Lawyer’s discharge of her obligations
It is not disputed that, during a telephone call on 17 September 2013, the Independent Children’s Lawyer told the Applicants’ solicitor of her opinion that the Department would not have obtained a long-term guardianship order in relation to the child and that the Children’s Court would not have made a long-term guardianship order. The Independent Children’s Lawyer submits that such a view was “merely an observation that I made and related to the solicitors for the parties in this matter” and that it is irrelevant to a determination of what is now in the child’s best interests. This is clearly correct. The focus for all parties in the proceedings must be on marshalling the evidence relevant to those matters relevant to the determination of the orders which are in the child’s best interests.
On 28 November 2013, the Applicants’ solicitor wrote to the Independent Children’s Lawyer to advise that the child’s psychologist believed it important for her to speak with the author of the Family Report or, alternatively, the Independent Children’s Lawyer to provide important information in relation to him before the Family Report was completed. Whilst the Independent Children’s Lawyer asked Mr C to speak with the psychologist, she did not insist that he comply with her direction to do so nor did she speak with the psychologist herself.
Having completed some inspection of documents produced by the Department and noted the Department had not produced a copy of the Review Report (which she knew had been completed), the Applicants’ solicitor contacted the Independent Children’s Lawyer who confirmed the Department ought to have disclosed such document and she would follow the matter up – the Independent Children’s Lawyer did so.
It is clear that Independent Children’s Lawyer had discussions with Mr Ca after he interviewed the parties. She conveyed this to the Applicants’ solicitor, noting some informal discussions with him regarding the interviews, that he had completed personality profiling and that, as a result, she needed to reconsider her attitude toward the child’s time with the mother at Christmas time (she had previously indicated her view that it would not be in the child’s best interests to have additional contact on Christmas Day due to the reactions he had been experiencing whilst attending contact).
I accept that the Applicants’ solicitor gathered from this interaction that the Independent Children’s Lawyer’s view was that the personality profiling administered by Mr C had not been “positive” for the Applicants or their case.
I also accept that, when the Applicants’ solicitor asked the Independent Children’s Lawyer whether Mr C intended to speak with the child’s treating psychologist before finalising the Family Report, the Independent Children’s Lawyer advised that, from her discussions with him, he did not intend to do so – she advised that the Family Report would most likely set out the reasoning as to why Mr C would not speak with her (unfortunately, it does not).
It is not in dispute that the Independent Children’s Lawyer’s attitude to the child spending time with the mother over the Christmas period changed after she spoke with Mr C.[50] That change does not, of course, of itself indicate anything other than that the Independent Children’s Lawyer took into account the opinions expressed by the expert commissioned to prepare the Family Report. Her significant change of position does, however, serve to highlight the significance of opinions expressed by those engaged to prepare expert reports and further highlights the imperative that such reports contain only opinions based on the material available to the expert and not those of a personal nature.
[50]On 20 November 2013, the Independent Children’s Lawyer wrote to the parties indicating that, subject to any further view she might form upon the report process taking place, she did not think it was in the child’s best interests that there be any additional time with the mother at Christmas and the mother should celebrate Christmas with him at the closest visit and on 16 December 2013 she wrote to indicate her view had changed and that the child should spend time, which could be overnight time, with the mother.
Having inspected the Review Report on 19 December 2013 and concerned that the Family Report may be finalised without reference to the contents of the same, the Applicants’ solicitor emailed the Independent Children’s Lawyer on 20 December 2013. She attached a copy of notes she took when she inspected the Review Report and asked that a copy of the same or the Review Report be sent to Mr C before he completed his report.
The Independent Children’s Lawyer replied that day that she had not inspected any of the subpoenaed documents and did not intend to do so until after the next subpoena hearing in late January 2014 when she would travel to Brisbane for the hearing of the appeal (if that proceeded in late February). The Independent Children’s Lawyer contacted the subpoena section at the Court to make arrangements to obtain a copy of the Review Report but was told she did not have leave to inspect and copy and would need to seek this on the next subpoena return date. Whilst the Independent Children’s Lawyer was surprised by this because the Applicants’ solicitor had already been able to inspect the material, there is the clear distinction between leave to inspect and leave to inspect and copy.
In any event, copies of the Review Report and the material subpoenaed from the X Family Intervention Service were sent to the Independent Children’s Lawyer in Mackay on 21 January 2014. The Independent Children’s Lawyer sent this material to Mr C on 23 January 2014, prior to him completing his report.
After the Family Report was provided to the parties, the mother’s solicitors advised she would seek further interim parenting orders to increase the child’s time with her. The Independent Children’s Lawyer then outlined she had consulted with Mr C and that “whilst his view remains that [the child] should be returned to the care of his mother forthwith”, if that could not be agreed, the child should spend more time with the mother - Mr C’s view was said to be that the time should be from Friday afternoon until Sunday afternoon each weekend. The Independent Children’s Lawyer expressed her support of this view.
The Independent Children’s Lawyer also hoped there could be some negotiations between the parties and offered to seek aid to convene a Legal Aid conference to avoid protracted correspondence and significant cost to the parties.[51] These actions were clearly consistent with her statutory obligations.
[51] Exhibit "LMH 6", affidavit of Ms S filed 16 May 2014.
On 6 March 2014, the Applicants’ solicitor advanced the position to the Independent Children’s Lawyer that, as the Applicants intended to seek orders in relation to the Family Report and Mr C’s ‘termination’, the issue of increased time between the child and the mother should await that or a trial.
On about 6 March 2014, the Independent Children’s Lawyer advised the Applicants’ solicitor[52] that “quite independent” of the Family Report, the Independent Children’s Lawyer considered the child needed to spend more time with his mother and siblings in the lead up to the final hearing and that she would support any application brought by the mother for increased time.
[52] Exhibit "LMH 8", affidavit of Ms S filed 16 May 2014.
The Applicants’ solicitor responded that day[53] to ask that the Independent Children’s Lawyer advise as to the evidence upon which she had based her view that the child needed to spend more time with his mother and half siblings.
[53] The Exhibit "LM H 9", affidavit of Ms S filed 16 May 2014.
In correspondence dated 27 March 2014[54], the Independent Children’s Lawyer responded to this request for an explanation of the reasoning underlying her support for an increase in the time the child would spend with the mother.
[54] Exhibit "LMH 10", affidavit of Ms S filed 16 May 2014.
Included within the 27 March 2014 correspondence is the following:
Looking at [the child’s] child protection history and the documents produced by the Department of Communities (Child Safety and Disability Services), the material subpoenaed from the [X] Family Intervention Service and the Department’s own Case Review report, I can indicate that notwithstanding the Case Review considers that the Department did not follow their own guidelines and decision making tools, the Children’s Court is not bound by the Department’s guidelines for decision making. I believe that the Caseworker was quite correct in stating that it would have been unlikely that the Children’s Court would have made another child protection order in relation to [the child]
…
It is my view that the Children’s court [sic] certainly would not have made a long term guardianship order for [the child] at the expiry of their order last May. The children’s [sic] Court may have made another short term order with reunification progressing quickly or a Protective Supervision Order.
In either scenario [the child] would most likely have been back in his Mother’s care by now and your clients would have had little to no say in those arrangements, with the ultimate decision making being done by the Children’s Court and the Department.
Pursuant to the Child Protection Act 1999 the primary responsibility for raising children is with their family and then with the State.
In the child protection system parents have to be both willing and able to care for their children. They don’t need to be perfect – they just need to be good enough.
Whilst I accept that Mr and Mrs [Thomas] have cared for [the child] for the majority of his young life and are like “family” to him, their only standing in the child protection system was as his foster carers.
This matter is not in the Children’s Court and we are in the Family Law jurisdiction where your clients do have standing by reason of their relationship with [the child] for the majority of his life and there are different factors to be considered in determining what is in his best interests.
…
Whilst your clients state that they want [the child] to have a relationship with his Mother, their actions belie their words. Their initial application was for [the child] to spend time with his Mother as agreed between the parties. It is very clear that your clients are reluctant to agree to any more time or any meaningful time between [the child] and his Mother.
…
There was no evidence that the reunification should not happen and so it proceeded.
Whilst the content of the correspondence is unfortunate in that it makes significant unhelpful reference to how proceedings might have proceeded in another Court exercising a jurisdiction different to that exercised by this Court, I am not persuaded that a reasonable person in the Applicants’ position – with the benefit of legal advice about the different considerations applicable in the different jurisdictions – might reasonably feel that the Independent Children’s Lawyer is or will be biased against their case for parenting orders for the child simply because she made the comments recorded therein.
Whilst the Independent Children’s Lawyer seemingly did not act to remedy Mr C’s failure to do as she asked and make contact with the child’s psychologist, I am not persuaded that this omission amounts to a deliberate failure to obtain information, reflective of prejudgment, rather than an unfortunate consequence of what is highly likely to be a significant work burden.
Independent Children’s Lawyer’s application for costs
The Independent Children’s Lawyer seeks an order that the Applicants pay the costs, in accordance with the Legal Aid Scale, for Counsel to appear at the interim hearing and the amount associated with her travel from Mackay, where she is based, to Brisbane.
Section 117(1) of the Family Law Act (1975)(Cth) (the Act) provides that each party to proceedings under the Act shall bear his or her own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[55] In considering what order, if any, as to cost should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.
[55] Section 117(2) Family Law Act (1975) (Cth).
Mr Thomas is in fulltime employment. Ms Thomas is occupied with matters like the care of their biological children and the child R. Whilst adequate for their needs, their financial circumstances could not be thought of as particularly affluent. Of course, even if it is the case that a party’s financial circumstances are poor, impecuniosity of itself is no bar to an order for costs being made where it is otherwise warranted.[56] The Applicants are not in receipt of Legal Aid funding for these proceedings but bear the cost associated with their legal representation personally.
[56] See, for example, D & D (Costs) (No 2) (2010) FLC 93-435.
The Independent Children’s Lawyer is funded by Legal Aid Queensland, an entity whose increasingly diminished resources are increasingly called upon to assist those who cannot afford legal representation themselves and who satisfy the ever tightening eligibility criteria.
It was not suggested that this Application was necessitated by any failure to comply with previous orders of the Court. The Applicants have been partially successful in the Application.
Whilst I accept that, in correspondence dated 22 May 2014, the Independent Children’s Lawyer asked the Applicants to advise whether they wished her to attend in person in the event that leave was granted for her to be cross-examined or whether her attendance was only required by telephone and that she only learned of the abandonment of the application for leave to cross-examine her on the morning of the hearing, I consider that the nature of the Application is such that personal attendance by the Independent Children’s Lawyer and her appearance by Counsel was preferable in any event.
I am not persuaded that the circumstances are such as to justify the making of an order that the Applicants pay the Independent Children’s Lawyer’s costs.
Liberty to provide information to the child’s treating medical practitioners
It is clear that, given the conclusion reached about the Family Report prepared by Mr C, a new Family Report will have to be prepared. It is highly likely that the mother will seek interim parenting orders, if not pending the preparation of that report, then shortly after it is released. This will provide a better opportunity for the Court to consider whether an order permitting the Applicants to provide the child’s treating medical practitioners with the information sought is appropriate. Consequently, that part of the Application will be adjourned to the next interim hearing.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 November 2014.
Associate:
Date: 21 November 2014
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