The Independent Children’s Lawyer role

The Independent Children’s Lawyer role

Proctor & Proctor [2016] FCCA 613 (23 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/613.html?stem=0&synonyms=0&query=family%20law%20act

The Independent Children’s Lawyer

123. I feel compelled to make some comment with respect to the Independent Children’s Lawyer.
124. On the second occasion that these proceedings came before the Court (25 August 2014) an Order was made for the appointment of an Independent Children’s Lawyer. On the same date a number of Orders were made including:
     1. An Order commissioning the preparation of the Family Report; and
     2. Interim parenting Orders, which provided for X and Y to spend time with their mother each weekend from Friday until the following Monday together with one half of each short New South Wales school holiday period. The Orders provided that the children would spend their remaining time with their father.
125. On 27 October 2014 the Independent Children’s Lawyer filed a Notice of Address for Service. In the intervening period (14 October 2014) the matter had been before the Court and the Independent Children’s Lawyer had sought adjournment on the basis that:
     1. The Independent Children’s Lawyer had not been provided with the documents filed by the parties;
     2. Enquiries were to be made as to the need for a Part 15 Report and, if considered necessary, enquiries would need to be made as to funding and an appropriate appointment.
126. On 14 October 2014 it was noted that compliance with the parenting Orders made only some weeks earlier, on 25 August 2014, had broken down.
127. Following adjournment of the proceedings, to enable the above matters to be attended to, a request was made by the parties and the Independent Children’s Lawyer for administrative adjournment. A brief adjournment was granted.
128. The proceedings next came before the Court 16 December 2014. The matter was, on that date, listed for interim hearing. The Independent Children’s Lawyer did not appear, although a junior solicitor from the office of the Independent Children’s Lawyer with little knowledge of the matter and not on the Panel of Legal Aid Commission approved Independent Children’s Lawyers appeared.
129. At the appearance 16 December 2014, some four months after the Order for appointment of an Independent Children’s Lawyer had been made, it was disclosed that the Independent Children’s Lawyer had not met with the children. An Order was made in the following terms, “The Independent Children’s Lawyer shall forthwith and no later than 23 January 2015, meet with the children”.
130. At all times since these proceedings were commenced the children have been of an age whereby it is difficult to comprehend how or why their views might not be relevant.^[57] The children, at that time, were aged 12 and 10 years of age respectively. The children were suggested by both parents to be expressing “strong views”. Indeed, those suggested views and issues relating to or suggested to impact upon those views and the weight that might ultimately be given to them was made clear in a Child Dispute Conference Memo that had been produced 25 August 2014 and forwarded with the Order appointing the Independent Children’s Lawyer (the Order for appointment of the Independent Children’s Lawyer specifically referring to the Memo as a basis for appointment).
131. Without, for one moment, wishing to become embroiled in controversy arising from Gardner’s theory of “Parental Alienation” as against Johnson’s discourse on Alignment, the terminology arising from those authors, “alienation” and “alignment”, has been used by the parties and the Independent Children’s Lawyer (and, for that matter, the Family Report Writer) throughout the proceedings. Put simply:
     1. Mr Proctor’s case is that the children reject their mother whom he alleges has perpetrated abuse upon and towards them;^[58] and
     2. Ms Proctor’s case is that her relationship with all four children has been actively undermined by Mr Proctor who has embarked upon a conscious and deliberate campaign of alienation.
132. I make clear that beyond a reference to the terminology espoused by Gardner and Johnson, no regard has been had to any literature or research produced by either. The terminology is used as it is the terminology which the parties themselves have used and I am aware of the origin of such terms.
133. I have been at pains to clarify with the parties and each of them (and, indeed, with the Family Consultant during her cross-examination) that such terms have not been used in a “loaded” way intended to import and impermissibly introduce such literature. I have been conscious to ensure that when the parties, the Independent Children’s Lawyer or the Family Consultant have used that terminology that it has been without reference to or reliance upon social science research not properly introduced into evidence. No such research is before the Court and the only social science evidence before the Court is that of the Family Report Writer absent such considerations.
134. I am conscious of and have, throughout the conduct of the trial been conscious of, the absence of expert evidence introduced from any source exploring influence brought to bear upon the children to form views or to make certain statements. In this regard I am conscious of the High Court’s decision in Aytugrul v R^[59] and the Full Court’s decisions in Barclay & Orton,^[60]Maluka & Maluka^[61] and McGregor & McGregor.^[62] I have been vigilant to ensure that only the evidence identified above and nothing else, (whether directly, inferentially or by reference), has been considered.
135. The proceedings next came before the Court 4 May 2015 as a consequence of an Application for Contravention filed by Ms Proctor. At that time arrangements to facilitate the children’s time with the mother had, again, broken down.
136. On 4 May, 2015 there was no appearance by or on behalf of the Independent Children’s Lawyer. It was asserted by Ms Proctor’s lawyers that they had served the Independent Children’s Lawyer with Ms Proctor’s material and given notice that the matter was before the Court that day. In the absence of the Independent Children’s Lawyer the proceedings were adjourned and an Order made requiring that an Affidavit of explanation be filed by the Independent Children’s Lawyer. The Affidavit was filed and I accept the explanation advanced.
137. The proceedings were next before the Court 9 June 2015 following release of the Family Report. On that date the Independent Children’s Lawyer appeared. Hearing dates were fixed for the matter.
138. Shortly prior to the anticipated hearing of the matter (scheduled to commence 24 November 2015) the proceedings were listed at the Court’s own motion for compliance check. This occurred as Mr Proctor, as the Respondent, had filed no material and the time for filing of material had closed. An objection to a subpoena was also listed before the Court.
139. The Independent Children’s Lawyer appeared by telephone 12 November 2015.
140. The proceedings then came before the Court 20 November 2015 as a consequence of an Application in a Case filed by Mr Proctor seeking to vacate the trial. Both parties appeared on that occasion, Ms Proctor represented by Counsel. Counsel for the Independent Children’s Lawyer appeared on that occasion. The Application for vacation was dismissed.
141. On the first two days of trial 24 and 25 November 2015 the Independent Children’s Lawyer did not appear, although Counsel for the Independent Children’s Lawyer was present and conducted the case. On the first day of trial an Application for recusal had been filed by Mr Proctor. After brief submissions the Application was withdrawn and discontinued and the hearing proceeded.
142. The Independent Children’s Lawyer briefly appeared on each of the third and fourth days of hearing. Counsel for the Independent Children’s Lawyer advised the Court, at the resumption of the matter on a part heard basis that the children had met with the Independent Children’s Lawyer during the adjourned period (and as one might expect).
143. Counsel for Ms Proctor commenced their closing submissions with the statement that the Independent Children’s Lawyer, notwithstanding the Minute of Orders proposed on their behalf by Counsel, was not present and had not been present during the hearing, save for a few brief hours and had, thus, not heard the vast majority of the evidence. Counsel’s observation was accurate and germane.
144. Appointment as an Independent Children’s Lawyer is a personal appointment. It is not a generic appointment to a firm of solicitors or a class of people. An individual is appointed as the Independent Children’s Lawyer.
145. At the time of trial, the two children whose interests are represented by the Independent Children’s Lawyer were aged 13 and 11 years of age. The time that they were to spend with their mother, pursuant to Court Orders of long standing, had again broken down and such that there was no communication between the children and their mother.
146. It is easy to understand that Ms Proctor might well have perceived some lack of interest by the Independent Children’s Lawyer in this case and in the interests of these two children.
147. The submissions put by Counsel on behalf of the Independent Children’s Lawyer disregarded any indication that had been given by the Court, including during the re-examination of the Family Consultant, of the findings of credit and of fact that would be made.
148. The submissions put by Counsel on behalf of the Independent Children’s Lawyer were prefaced upon an acceptance of one possible view of the evidence, contrary as it was to that which the Court had indicated would be found at least with respect to certain important parts of the evidence, and did not consider or address any alternate view of the evidence, save that which the Independent Children’s Lawyer advanced. That view was advanced without the benefit of the Independent Children’s Lawyer having been present for the vast majority of evidence given and with scant attention paid, even during those attendances, with significant time devoted to the Independent Children’s Lawyers’ mobile phone.
149. The interests of these children, on one hand suggested to have been abused and ill-treated to a point of natural estrangement and rejection of their mother^[63] if not fear and, on the other hand, suggested to have been alienated from their mother by a deliberate campaign waged by Mr Proctor with cunning and calculation over many years, have not been well served by the Independent Children’s Lawyer.
150. The children’s views, as expressed to the Independent Children’s Lawyer recently and, earlier, to the Family Report Writer, have been advanced as supportive of the “genuine views” of the children and as evidentially supportive of allegations that Ms Proctor had been abusive to the children. This is so notwithstanding that:
     1. The family consultant’s comments regarding caution in weight being attached to the children’s views (which I will deal with shortly); and
     2. Y’s direct statement that there had been no abuse;
     100. A careful consideration of the evidence, especially of Ms P (and that reported by Ms P or as a consequence of what had been reported by Ms P) and that reported by X revealed significant internal inconsistencies, credit issues and alternate explanation (including the wife’s evidence being entirely accurate and explicative of those reports);
     4. The alternate proposition, (of the allegations having been manufactured), being available but apparently discounted if considered at all.
151. In light of the findings that will be made by me with respect to the evidence, I am concerned that these children have been denied agency. Their voice or their genuine voice has not been heard.