Legal principles in respect of the removal of an Independent Children’s Lawyer
In the matter of Dickens & Dickens [2016] FamCA 115 Justice Watts considered an Application that the Independent Children’s Lawyer be discharged. In paragraphs [46] to [53] His Honour summarised the relevant legal principals to be applied to such an application as follows:
“Legal principles in respect of the removal of an Independent Children’s Lawyer
46. The Legal principles in respect of the removal of an Independent Children’s Lawyer In Lloyd & Lloyd and Child Representative(2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:
[11] Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances 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.
47. At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative 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 child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that 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 child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
48. In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
49. Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children’s Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
50. If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
51. In T & L(2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:
The critical question … is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father …
52. The test that I shall apply is that the father needs to establish that the Independent Children’s Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children’s Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41]–[61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children’s Lawyer to argue firmly and fearlessly for what the Independent Children’s Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children’s Lawyer is in when fulfilling that role because it may be that the Independent Children’s Lawyer is required to challenge the position of one or other of the parents.
53. It is usually the case that the Independent Children’s Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children’s Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children’s Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time…”
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