Vale & Vale

[2016] FamCA 307

FAMILY COURT OF AUSTRALIA

VALE & VALE [2016] FamCA 307

FAMILY LAW – LEGAL PRACTITIONERS – Discharge – Where the mother seeks an order that the ICL be discharged – Whether the ICL has shown bias towards the mother and acted unprofessionally – Application dismissed.

Family Law Act 1975 (Cth)

Knibbs and Knibbs [2009] FamCA 840
Kingley & Arndale (No 2) (2010) 255 FLR 326
Bondai & Bretton (No 2) [2010] FamCA 1237
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

APPLICANT: Ms Vale

RESPONDENT: Mr Vale

INDEPENDENT CHILDREN’S LAWYER: Doris Chan

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 6 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 April 2016

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Mr Ulbrick

G & D Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Doris Chan
Legal Aid Queensland

Orders

1. The mother’s Application in a Case seeking discharge of the Independent Children’s Lawyer is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale 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: SYC 7455 of 2012

Ms Vale

Applicant

And

Mr Vale

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. This is an application brought by the mother, who is a party to parenting proceedings awaiting trial in this Court’s list, for an order that the Independent Children’s Lawyer (“the ICL”) in the case be discharged. Although the precise wording of the order sought by the mother was not that the ICL be discharged, that is the nature of the order that she effectively wanted the Court to make.

2. The ICL, Ms Doris Chan, who has been in the matter for some time, opposes the mother’s application. The father, too, opposes the mother’s application.

3. I do not intend to discharge Ms Chan. I will dismiss the mother’s application for her to be discharged. These are my reasons for so deciding.

Some relevant background

1. The parents have competing applications for final parenting orders concerning their two children, who are 14 and 12 years of age respectively. The proceedings have been highly conflictual. The mother makes allegations that the father perpetrated physical violence against her and the children during the relationship and around the time of the breakdown of their relationship and her separation from him. However, final parenting orders were made by consent in early 2013. Those provided essentially for the children to live with the mother and to spend regular unsupervised time with the father.  Contravention proceedings were soon commenced by the father in which he alleged the mother was not complying with the final orders in respect of the children’s time with him.

2. There was a hearing of an application in this Court at which the mother’s solicitors appeared but the mother did not. That solicitor was given leave to withdraw and ceased acting for the mother. The mother and the children then could not be located and a recovery Order issued. At some point in this time, the mother obtained passports for the children, apparently forging the father’s signature on the passport applications. There is no dispute that the mother then attempted to leave Australia with the children, with the intention of relocating them to live in Country D. That plan was apparently thwarted at the Sydney airport, but the mother somehow avoided having the children “recovered” pursuant to the recovery Order.

3. The children were later recovered by police in a New South Wales country town and delivered into the father’s care. They have remained in his care since and that was last confirmed by order of the Principal Registrar of this Court (“the PR”) by judgment delivered on 11 February, 2016 following a hearing that took place on 10 December, 2015.

4. The interim parenting Orders the PR made that day provided for the children to continue to live with their father and to have supervised time with their mother at a children’s contact centre in Sydney after an initial series of supervised visits at the Child Dispute Services offices in the Brisbane Registry of this Court, under the supervision of Mr E, Family Consultant. There were other orders made by the PR in that judgment restricting the mother from gaining access to knowledge as to the school the children attend, the address at which they live with the father, the names and addresses of medical practitioners and counsellors they attend upon and also in respect of publication of material that might identify the children or the parties. Most of the Orders made by the PR were urged upon the Court by the ICL.

5. Apparently, unhappy and dissatisfied with that outcome, the mother has since filed a number of applications that seek to review the PR’s decision. It is in at least one of those applications that the mother seeks orders that include the discharge of the ICL. All of those other applications remain pending and have been adjourned by me to be heard by a Judge in a judicial duty list in the near future after the determination of this application to discharge the ICL.

6. The mother appeared before me without legal representation. The ICL appeared instructing counsel. The father was represented by a solicitor.

7. In support of her application, the mother relied on a number of her own affidavits to which were attached quite a number of annexed documents. She made lengthy oral submissions.

The mother’s case for the ICL’s removal

1. The mother presented a case that the ICL should be discharged because she has not been acting impartially or independently in the matter and because she has acted unprofessionally and even dishonestly, allegedly manufacturing evidence to put before the Court.

2. The mother deposed to a number of factual matters in her affidavits that she submits support the position I have just set out. I do not intend to refer to them all. Of particular significance, though, she asserted that the hearing before the PR on 10 December, 2015 was not concluded and was adjourned part-heard to a later date. She asserted that she then sought to enlist the support of the ICL to put further relevant evidence before the PR and that the ICL refused to assist her and then lied to her in a letter by telling her that the matter had indeed concluded on 10 December, 2015 with all parties having concluded their submissions on that day and was not part-heard. The mother argued that this demonstrated bias and unprofessional conduct on the part of the ICL. She asserted that the PR then delivered her judgment in the matter although she was only part-heard.

3. On the day of the hearing before me, the ICL, through her counsel, maintained the position that the hearing was concluded on 10 December 2015 and that she had not lied at all to the mother. The mother did not accept this and I decided to take the course of playing the audio transcript of the last few minutes of the hearing before the PR on 10 December, 2015.

4. After listening to that audio transcript, I was completely satisfied that the PR had thanked the parties and their legal representatives for their assistance and reserved her decision, concluding her hearing of the matter. The PR informed the parties that she would endeavour to deliver her judgment and make orders as quickly as she could. I was completely satisfied that the mother was just plainly wrong about what had happened that day. If she honestly believed that which she was asserting, she simply misunderstood what had happened and what had been said. That she could have is rather perplexing as she is an intelligent and articulate person. Nevertheless, she then compounded her apparent misunderstanding by attributing malice, unprofessionalism and bias to the ICL who had pointed out to her in written correspondence nothing other than the truth of the fact that the matter had been concluded on 10 December 2015, contrary to the mother’s assertion. Much of the mother’s argument against the ICL evaporated on the clarification of her fundamental mistake.

5. The mother also asserted that Ms Chan had shown bias and acted unprofessionally by not adducing evidence of the children’s school reports at the hearing before the PR on 10 December 2015. Ms Chan had tendered a copy of a letter from the New South Wales North East Public School of Distance Education dated 20 September 2013. The mother had the children being educated by correspondence and internet through that school at that time. That letter had been made an exhibit in hearing before the PR. The mother, who the letter had been sent to in the first place, complains that she was not provided with a copy by the ICL at the time the letter was tendered. The mother asserts that the letter should have been “tabled and discussed in a hearing in the interest of procedural fairness”. This forms part of her criticism of the ICL.

6. The copy of that letter became an exhibit in the hearing before me. It reflects concern on the part of the school that there had not been a regular return of “physical evidence of completed work”.  I expect the ICL tendered it in support of expressions of concern about the children’s education whilst in the mother’s care.

7. I understood the mother’s argument to also be that the ICL should have put in all of the children’s school reports for that time and that by not doing so, she was demonstrating bias against the mother, as the reports demonstrated the children were performing well at the distance education school they were attending in 2014, the Brisbane School of Distance Education. To prove the point, the mother tendered into evidence before me, a bundle of reports for the two children. Those reports from 2013 and 2014 are, on my perusal, reasonably positive.

8. However, in contrast, the father immediately tendered into evidence before me reports for the children from Brisbane School of Distance Education for second half of 2014, the period when the mother was in hiding with the children and unable to be located by Information or Recovery Orders. Those reports presented a very different picture. The children had presented very little work for the semester. The school could provide little if any reporting on their performance.

9. Clearly, the mother herself, in trying to prove a point against the ICL was being very selective herself about what she adduced into evidence. I certainly was not left considering that the ICL had not done something she should have done in representing the best interests of the children in the proceedings.  

10. The mother argued also that Ms Chan had withheld from her a report obtained from Dr F, psychiatrist, beyond the time within which it should have been provided to her and that this disadvantaged her. She argued that Ms Chan had made “false and misleading statements” to Dr F in the instructions she provided him with at the outset.

11. The evidence she relied upon in support of the submission that she had suffered disadvantage by receiving the report a little over two weeks after it was said to have been filed by Ms Chan was the hearsay reference to her solicitor at the time allegedly telling her that she had been disadvantaged by not having the report at a time of a directions hearing before a Registrar. The mother was unable to expand meaningfully upon that in her oral submissions. With respect to the mother, she did not persuade me that the ICL had made “false and misleading statements” to the doctor simply by asserting that and she did not persuade me that the ICL had caused her any prejudice by not getting a copy of the report to her earlier. Nor was I convinced by the argument that any act or omission on the ICL’s part surrounding that issue was unprofessional or demonstrated bias on her part.

12. The mother complained that Ms Chan’s failure to answer all of the mother’s communications is demonstrative of unprofessionalism and bias. I was not convinced at all.

13. The mother also complained that her receipt of the affidavit and report of Dr F with a copy of a document attached that described Ms Chan as a Rockstar ICL was disturbingly unprofessional, as she thought Ms Chan was using it to display arrogant dominance over her. Ms Chan had quickly communicated an explanation for the mistaken release to the mother of that document in a way that demonstrated, in my view, sensitive contrition for the act that was, I accept, nothing more than an accident. The mother told the Court that she did not consider Ms Chan’s explanation to be false yet nevertheless still submitted that the action supported her being discharged as ICL in this case.

By what principles is an application such as this to be determined?

1. The principles applicable to the manner in which an ICL is to discharge her or his role in Family Law Act 1975 (Cth) parenting proceedings have been extensively considered. So too, have the principles applicable to the question of determining an application to remove and replace an ICL from that role.[1]

   [1]See the discussion by Murphy J of the authorities and the principles in Knibbs and Knibbs [2009] FamCA 840 at [33] – [61] and also the discussion by O’Reilly J on similar matters in Kingley & Arndale (No 2) (2010) 255 FLR 326, 322-334 at [26] –[35] and Bondai & Bretton (No 2) [2010] FamCA 1237 at [43].

2. The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, should be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.

3. I am quite satisfied that it is accepted principle that the Court should be slow to discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.

4. I consider the words of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 apposite.[2] His Honour said:

   A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a [ICL] to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.

   It would be an intolerable situation if a party could successfully apply to have a [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.

   [2]These words were also referred to by Murphy J and O’Reilly J in the passages just referred to.

5. As Murphy J pointed out in Knibbs at [43]-[45], there will be times when the ICL, acting completely within the bounds of his or her duty and in accordance with their independent, professional opinion, as to what is in the best interests of the children in the case, will say and do things that might very well have the appearance of partiality even, perhaps, to the objective bystander. The ICL’s duty and obligations do not require, again as Murphy J said in Knibbs at [49], the ICL to act as merely “a benign or ambivalent mouthpiece for competing evidence.”  It is not uncommon for the ICL to make or cause submissions to be made on his or her behalf by counsel that are completely at odds with the position adopted by one parent and completely consistent with the position adopted by the other parent. The objective bystander might look to that and reasonably consider that the ICL appears to be partial towards one party’s position rather than the other. That does not mean though that the ICL should, on the application of an unhappy parent with whom the ICL is at odds, be discharged from the case.

6. Like so many matters in this Court, it will, in my opinion, be a matter of considering the evidence presented on each application for the discharge of an ICL to determine if the evidence demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal.

7. Parents who are involved in litigation in this Court about their children need to understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case. The ICL might seek from the Court orders completely contrary to orders sought by one or both of the parents. That does not mean the ICL is not acting independently and impartially in the best interests of the children.

The application of the principles to the facts in this case  

1. There is nothing in the evidence presented by the mother that persuades me that the ICL should be discharged in this case. Indeed, as I pointed out to the mother when hearing her application, it is a serious matter to assert in the Court that an ICL, who is an officer of the Court, has manufactured evidence that is false. No solicitor or barrister is ethically permitted to make such an allegation about a party in litigation without good evidentiary grounds for doing so. Parties who do not have legal representation should also understand that they should not make such allegations without good evidentiary grounds for doing so, lest such conduct do more harm to them, their credibility and their case than to the ICL they are making the allegations against.

2. In this case, I saw no evidence that even went remotely near proving the allegation that the ICL manufactured evidence that was false. The mother did not prove her case.

3. If there is evidence that the mother considers should have been before the PR when the PR’s decision was made, then the mother has the opportunity now to put such evidence before the Court herself for the hearing of the review of the PR’s decision. The mother should understand that the ICL makes her own professional decisions about what she adduces into evidence in the representation of the best interests of the children whose interests she is appointed to represent. If the mother considers the ICL has not put in evidence of relevance to those best interests before the Court then the mother should take steps to put that evidence before the Court as opposed to using up precious resources such as the Court’s time criticising the ICL without foundation.

4. These are the reasons why I consider the mother’s application to have the ICL discharged in this case is without any merit and should be dismissed. I order accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 May 2016.

Associate:  L. Bui

Date:  6 May 2016