Wettons & Fulwood

[2008] FamCA 429

FAMILY COURT OF AUSTRALIA

WETTONS & FULWOOD [2008] FamCA 429

FAMILY LAW – PRACTICE AND PROCEDURE – application for review of order of Judicial Registrar dismissing father’s application seeking removal or dismissal of Independent Children’s Lawyer – consideration of basis for dismissal of Independent Children’s Lawyer – court slow to dismiss Independent Children’s Lawyer merely on complaint of person involved in proceedings – father asserted delay by Independent Children’s Lawyer in obtaining family report contravened Court orders – allegations by father that Independent Children’s Lawyer biased, violated father’s human and civil rights, influenced single expert and that Independent Children’s Lawyer’s appointment affected father’s ability to obtain legal advice – no evidence indicating human or civil rights violated – not established that Independent Children’s Lawyer biased against father or behaved improperly – opinion of single expert to be tested at trial – no basis for dismissal of Independent Children’s Lawyer – Review application dismissed.

Family Law Act 1975 (Cth) ss 68 & 68LA

P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1
T and L (2000) FLC 93-056
Lloyd and Lloyd and Child Representative (2000) FLC 93-045

APPLICANT: Ms Wettons

RESPONDENT: Mr Fulwood

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADF 1140 of 2003

DATE DELIVERED: 18 June 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

Orders

1. The Review Application filed by the father on the 12 February 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wettons & Fulwood is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1140  of 2003

MS WETTONS

Applicant

And

MR FULWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on the 12 February 2008 the father seeks various orders including a review of the order made on the 13 December 2007 by Judicial Registrar Forbes, a reconsideration of the original application and “a stay of the trial until this matter and current contravention pertaining to this file number are resolved.”

2. On the 13 December 2007, Judicial Registrar Forbes dismissed the Application in a Case filed by the father on the 15 November 2007.

3. The Application filed by the father on the 15 November 2007 sought the following orders:

   “1.The removal/dismissal of the independent children’s lawyer from this current matter.

   2.The psychologist report provided by [Dr C] to be set aside and/or dismissed from the proceedings.

   3.That the Court provide Orders directing the relevant authority or authorities to investigate and/or address any possible improper or criminal conduct which may be determined from the hearing of this application, at either State or Federal level.

4.That the Court Order a further hearing requiring the presence of the child psychologist, [Dr C], to discuss the validity of the report, if Order 2 or this application is not granted.”

1. The application for review was not filed until the 12 February 2008. The father was able to file the application because on the 8 February 2008 I granted him leave to file an application for a review of the orders of the Judicial Registrar, in so far as it relates to the father’s application to discharge the appointment of the Independent Children’s Lawyer, on condition that he file and serve his application for review and any supporting affidavit within 14 days from that date.

Hearing

1. The father’s application for review was heard on the 20 March 2008.  Both the father and mother appeared in person.  Mr Boehm of counsel appeared for the Independent Children’s Lawyer.

2. In the usual way the matter was heard by submissions on the papers.

Background and Chronology

1. The father was born in May 1969 and is aged 39.  The mother was born in May 1973 and is aged 35.   The parties were married in April 1994.

2. In about September 2002 the parties separated.  They were divorced in October 2005.  The decree became absolute on the 19 November 2005.

3. There are three children of the relationship; J born in March 1995 now aged 13, M born in February 1997 now aged 11 and D born in October 1999 now aged 8.

4. Proceedings between the parties concerning the children commenced in May 2003.  Consent Orders were made finalising all matters on the 4 June 2003.

5. In August 2004 the mother commenced further proceedings.  Since then there have been further applications filed including amended applications for final orders.  Interim orders have been made by Senior Registrar Kelly (as she then was) and Judicial Registrar Forbes.

6. The mother formed a relationship with Mr R and has resided with him from time to time.

7. On the evening of the 7^th February 2005 the mother alleges that at about 11pm the father entered the home in which she and Mr R were residing.  The children were in their bedrooms asleep.  The mother alleges that the father then “walked into my bedroom turned on the light and then attacked my partner [Mr R] with an axe and struck him twice.  The children were awakened.”  Mr R was taken to hospital and was in intensive care for many weeks.

8. Shortly thereafter the orders providing that the father have contact with the children were suspended.

9. The husband was charged with attempted murder of Mr R.      

10. In August 2006 the father was convicted of grievous bodily harm with intent to cause grievous bodily harm and aggravated serious criminal trespass on his guilty plea.  In November 2006 he was sentenced to eight years and six months imprisonment with a non-parole period of six years.  He will be eligible for home detention in November 2009.

11. The father alleges that the mother and her partner Mr R have abused the children and have not cared for them adequately.

12. The mother opposes the father’s application to spend time with the children.

13. By further amended response seeking final orders filed on the 5 March 2008 the father sought various orders including that the children reside with the mother and that he and the mother “share the parental responsibility for the day to day care, welfare and development of the children”.  He sought that he spend time with the children on the first Saturday in every third month between 11.30 am to 5.30 pm or at intervals the Court deems suitable.  He sought that the time to be spent whilst the father is in custody take place at the Visitor’s Centre of the relevant Custodial Institution.  He also sought “phone contact”  and other related orders.

14. On the 5 February 2008, His Honour Justice Strickland made orders by consent which provided that the paternal grandmother spend time with the children during specified times during school holidays and at such other times as agreed.

History of Listing for Trial

1. Procedural hearings to prepare the matter for trial have been adjourned.  Some of the adjournments have related to the criminal proceedings, the father’s imprisonment and the grandmother’s application.

2. The Independent Children’s Lawyer Mr Terrence Stephen was appointed pursuant to the order made on the 19 May 2005.

3. On the 16 November 2007 a Registrar directed that the matter be listed for final trial as a pool matter in the week commencing 4 February 2008.

4. When the matter came on before His Honour Justice Strickland on the 5 February 2008, consent orders were made in relation to the proceedings brought by the paternal grandmother.  It was noted that the father was not now consenting to the mother having sole parental responsibility.

5. Further procedural orders were made by me on the 8 February 2008.

6. Amongst other procedural orders I vacated the listing for the 12 March 2008 and adjourned further consideration of the review to the 20 March 2008.

7. The listing of the final determination of the children’s issues has been postponed pending the resolution of the father’s application by way of review of the Judicial Registrar’s orders.

The Law

1. The review before me for determination is the review of the order of the Judicial Registrar which dismissed the application of the father which sought that the Independent Children’s Lawyer be removed or dismissed.

2. The review is a hearing De Novo and not an appeal.  I have therefore heard afresh the submissions of the parties and considered the evidence presented by each of them.

3. The Family Law Act makes provision for the appointment of Independent Children’s Lawyers. Section 68L provides power to make an order for the independent representation of the child’s interests.

4. Section 68LA sets out provisions relating to the role of the Independent Children’s Lawyer.

5. The Independent Children’s Lawyer 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).

6. As his Honour Justice Chisholm said in T and L (2000) FLC 93-056:

   “An application to remove a Child Representative is not strictly governed by the principle that the child’s best interest must be treated as the paramount consideration, but the child’s interest 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.”

7. The basis for the dismissal of the Independent Children’s Lawyer was discussed and set out in Lloyd and Lloyd and Child Representative (2000) FLC 93-045. Some of the circumstances were described as follows:

   3. Some of the circumstances which would lead the Court to consider discharging a separate representative are:  

   (i)if there is evidence that the separate representative had, in any way, acted contrary to the children's interests;  

   (ii)if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;  

   (iii)if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or  

   (iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.  

   …

   5.There are a number of reasons why the Court should be slow to discharge a child representative on the basis of the largely unsubstantiated complaints of one of the parties. These include:  

   (i)     the best interests of the children have to be borne in mind;  

   (ii)the Court should treat allegations of lack of impartiality with caution;  

   (iii)the public policy consideration of cost and any new separate representative having to spend a lot of time acquiring the necessary knowledge of the long proceedings.”

Father’s Documents and Submissions

1. I have before me the application of the father filed on the 15^th November 2007 and his affidavit filed on the same day which supported his application for the dismissal of the Independent Children’s Lawyer before Judicial Registrar Forbes on the 13^th December 2007.  The Court has also received the Form 2 Application in a Case filed by the father on the 29^th January 2008, his affidavit of the same date and his Application in a Case filed on the 12^th February 2008.

2. In the November affidavit the father asserts that the Independent Children’s Lawyer has contravened the Court orders made on the 19^th May 2005.  This apparently refers to the order of Senior Registrar Kelly requiring the Independent Children’s Lawyer to make arrangements for a Family Assessment report to be prepared.  The letter to the husband’s solicitors from Mr Stephen dated 12 July 2005 indicates that the assessment had not been prepared and drew the husband’s attention to the need for the husband to consider his position particularly in view of his risk of self incrimination in the preparation of the family assessment report and the consequences for the father pending the hearing of his criminal charges.

3. The father alleges that the Independent Children’s Lawyer has “maintained a bias” against the father.  The father alleges that the Independent Children’s Lawyer has “violated the human rights and civil rights of the father”.  The father also asserts that the Independent Children’s Lawyer has attempted to influence or has influenced the single expert Dr C, the child’s psychologist.

4. The subsequent affidavits filed by the father and in particular the affidavit filed on the 11^th March 2008 continued the allegations made by the father concerning the conduct of the Independent Children’s Lawyer.

5. The more recent affidavit alleges that the Independent Children’s Lawyer did not take action even though the father asserted that the mother had contravened the orders.  In the later affidavit the father alleges that Mr Stephen has conducted himself in a “deceptive and misleading manner”.  He refers to dealings between Mr Stephen and the paternal grandmother.

6. The father asserts that he has been denied legal assistance because of some alleged conflict between the provision of legal assistance to the father and the role of the Independent Children’s Lawyer.

7. At the hearing before me on the 20^th March 2008 the father appeared by telephone link unrepresented.  He asserted that his bail conditions in relation to the Supreme Court Criminal proceedings did not restrict his ability to have contact with his children.  He asserted again in general terms that the Independent Children’s Lawyer had violated his human rights.

8. The father also relies on the affidavit of his mother sworn on 3^rd March 2008.  He refers to the attachment to his mother’s affidavit.  He sets out in detail the events leading up to the consent order made in relation to the paternal grandmother’s application. 

9. The Independent Children’s Lawyer’s affidavit denies the generalised allegations in the paternal grandmother’s affidavit that Mr Stephen had been “manipulative, aggressive or difficult to talk to”

10. This allegation is not established.

11. The Independent Children’s Lawyer does not have any power to refuse the father contact with the children.  Only the Court has the power to make or refuse to make interim orders.  Counsel also correctly pointed out that this Court is not bound by the bail conditions or absence of bail conditions when determining what is in the best interest of the children by way on interim or final orders. 

12. The Independent Children’s Lawyer explains any delay in finally determining these proceedings.  It has not been a delay caused or contributed to by the Independent Children’s Lawyer rather other circumstances, particularly the father’s incarceration, his criminal proceedings and more recently these ongoing interim proceedings have delayed the final determination.

Mother’s Documents and Submissions

1. The mother did not support the father’s application. 

Independent Children’s Lawyer’s Documents and Submissions

1. The Independent Children’s Lawyer, Mr Terrence Stephen, relies upon the affidavits sworn by him filed on the 21^st February 2008 (document 68) and the 28^th March 2008 (document 72).  Paragraphs 8 to 25 of the earlier affidavit deal with the arrangements for the psychologist’s report by Dr C.

2. Paragraphs 26 to 30 of the first affidavit refer to the husband’s allegation that the appointment of the Independent Children’s Lawyer has in some way prevented him from obtaining legal advice.

3. In the second affidavit Mr Stephen deals with the allegations that he has in some way influenced the recommendations of Dr C.  He denies any influence.

Findings

1. The father asserts that the delay by the Independent Children’s Lawyer in obtaining the Family Report contravened the order of the 19^th May 2005.  I have considered the correspondence from the Independent Children’s Lawyer and in particular the letter of the 19^th May 2005.  I note that the Independent Children’s Lawyer received the file assigned to him on the 12th July 2005.  On that date he wrote to the husband’s solicitors raising his concerns about the assessment taking place whilst the allegations concerning the criminal charges of attempted murder against the husband remained unresolved.  On the 25^th August 2005 Senior Registrar Kelly (as she then was) suspended the previous order concerning the assessment.

2. The Independent Children’s Lawyer has acted appropriately when not requiring the father to discuss with the Independent Children’s Lawyer or with the psychologist the events surrounding his outstanding charge of attempted murder whilst the husband awaited trial.

3. The husband has not presented any cogent evidence which would suggest the appointment of the Independent Children’s Lawyer has affected his ability to obtain legal advice.

4. The father merely alleges that the Independent Children’s Lawyer has inappropriately influenced the single expert.  This is denied by the Independent Children’s Lawyer.  The opinions of the single expert will be subject to appropriate testing at the trial.

5. In his affidavit filed on the 20^th March 2008 the Independent Children’s Lawyer deals with the allegations relating to his dealings with the paternal grandmother.  Considering the evidence of both the paternal grandmother and the Independent Children’s Lawyer, and in particular the documents and explanation provided by Mr Stephen, I am satisfied that there is no evidence which suggests that the Independent Children’s Lawyer has behaved improperly.

6. Another factor, but not a determining factor, is the likely delay and cost of a new Independent Children’s Lawyer acquiring the knowledge and becoming familiar with the large amount of material concerning the best interests of these children.

7. As indicated in Lloyd and Lloyd Child Representative (Supra) “the Court should treat allegations of lack of impartiality with caution”.  The Court should be slow to dismiss the Independent Children’s Lawyer merely on the complaint of a person involved in the proceedings.  An Independent Children’s Lawyer should not be dismissed merely because of the personal view of one of the litigants.  This is particularly so bearing in mind the personal and emotional nature of proceedings in the Family Court of Australia. 

Conclusions

1. Having carefully considered the history of the matter, the allegations made by the father and the response of the Independent Children’s Lawyer I am satisfied that the Independent Children’s Lawyer has not behaved improperly.  The evidence does not indicate that the human rights or the civil rights of the father have been violated as alleged by the father. 

2. In the context of these proceedings the father has not established that the Independent Children’s Lawyer has shown an unfair or improper bias against him.

3. The father has not established any basis for the dismissal of the Independent Children’s Lawyer.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  18 June 2008