No removal of Independent Children’s Lawyer

No removal of Independent Children’s Lawyer

Dickens & Dickens [2016] FamCA 115 (1 March 2016)

FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of order appointing the Independent Children’s Lawyer – Where the father submits the Independent Children’s Lawyer is not impartial or independent and is an advocate for the mother – Where there is no evidence the Independent Children’s Lawyer has acted contrary to the children’s best interests – Where the father has not demonstrated that the Independent Children’s Lawyer is incompetent or lacks professional objectivity – Where there is no basis for discharging the Independent Children’s Lawyer on the basis of actual or perceived bias – Father’s application is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer seeks an updated Chapter 15 expert report be prepared – Where the father objects to the preparation of that report by the expert previously involved in the matter – Where the father asserts that expert is not impartial and has failed to undertake his duties to the court under part 15.5 of the Family Law Rules – Where the court is satisfied that expert should prepare the report and orders are made in accordance with the Independent Children’s Lawyer’s application.

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/115.html

Legal principles in respect of the removal of an Independent Children’s Lawyer

46. 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] FamCA 351; (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. In respect of interlocutory matters however, there is a duty on the Independent Children’s Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children’s Lawyer’s independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.

The father’s evidence

54. In his affidavit sworn 1 October 2014, the father refers to the fact that on 2 September 2014, the lawyer for the mother wrote a letter to the Independent Children’s Lawyer saying that C was on a “blue card” and it was the lawyer for the mother’s understanding that that was a step before “further suspension”. The father claims that the mother’s lawyer subsequently indicated that the reference in a letter to C should have been a reference to B. The father’s complaint against the Independent Children’s Lawyer is that the Independent Children’s Lawyer did not make his own independent inquiries to ascertain the correctness of what the mother’s lawyer was saying prior to a hearing held on 16 September 2014. The father asserts that as a result of this misinformation, a court order was made for Mr Q to provide counselling for the boys for alleged behavioural problems. The father asserts that Mr Moylan’s support of counselling for the children was not to help them but rather to “legitimatise the faults and inappropriate opinion evidence and false statements contained in the COPS events, … and …, created by police officers, [DD] and [EE] during March 2014”. The COPS event … is an event record relating to the night upon which a recovery order to recover C from his father was executed by the police on 18 March 2014 (Exhibit 57). The father will seek to challenge various aspects of what Inspector EE has written in this event’s entry, including challenging her expertise to express the opinions that she has (see Exhibit 58). What Inspector EE wrote was as follows:

On Tuesday 18^th of March 2014 the Family Court of Australia issued a Recovery Order to recover [C] from his father and return him to his mother. At 8.20pm police attended the father [Mr Dickens] residence at [FF Street, Suburb K] and executed the order. [C] was removed and conveyed to [Suburb K] Police Station where he was returned to his mother [Ms Dickens].

While police were attempting to execute the order [Mr Dickens] was obviously trying to upset his son and made the process very distressing for him. [Mr Dickens] stated, “[C] I am sorry but the court and the police are not here to help you they are trying to hurt you they don’t care about you. Don’t trust them”. This and other similar dramatic statements were said over and over and you could see that [C] was becoming more distressed. He was crying and shaking his head. Inspector [EE] said, “You are upsetting him we are not going to stand here and have you speak to him like that. As a parent you need to reassure him so that he is not scared and upset as much as possible under the circumstances”.

[Mr Dickens] was being very dramatic and speaking in a tone and manner that was designed to scare [C]. [Mr Dickens] sat [C] down and became very serious making him look at him in the eyes and said, “Remember what we talked about, stay strong don’t let them change your mind. They are not there 24 hours a day”. This statement was repeated over and over at least five times until police again had to interrupt and say OK we are going now. It sounded like he was threatening [C] not to go back on something he had said or done. As police were walking out the door [Mr Dickens] was saying, “Your mother doing this shows you that she doesn’t love you she doesn’t care about you”. To police he said, “Are your children safe at home”. After police left [Mr Dickens] rang [Suburb K] Police Statement and asked for the names of the police that had attended had [sic] if they had children.

Police are concerned that [C] is being exposed to psychological harm.

55. I am unable to conclude that the Independent Children’s Lawyer’s support for therapy for the children is motivated by a desire to cover up faults, inappropriate opinion and false statements created by police officers.
56. The father asserts that the mother, her partner, the mother’s lawyer and the Independent Children’s Lawyer have set out to “manufacture new favourable evidence based on tainted expert spin”. I am also unable to find that is so.
57. The father complains that the Independent Children’s Lawyer attended the event at court on 16 September 2014 by telephone and that he was “difficult to hear and there was some rather strange noises in the background at his end”. That is of no moment.
58. The father annexes to his affidavit sworn 1 October 2014, a letter that he wrote to the Independent Children’s Lawyer on 8 September 2014. In that letter, the father sets out in more detail his conviction that “by design or mistake the Independent Children’s Lawyer got it wrong in the recommendations the Independent Children’s Lawyer made to Sexton FM in 2011 and are continuing on the same trajectory. The father charges the Independent Children’s Lawyer with acting in self-interest and not in the best interests of the children and that the Independent Children’s Lawyer has been assisting the mother’s lawyer and has joined forces with the mother’s lawyer. In the letter, the father reiterates that it is his conviction that the police have been involved in the cover-up and the Independent Children’s Lawyer has refused to acknowledge that that is so. The father catalogues in the letter examples of abusive behaviour by “dishonest police officers” and concludes by saying, “These are some of the police officers who are entrusted to protect our children and who can illegally influence, in a significant way, when young children get to see their fathers and I deem officers DD and EE to be part of this category”.
59. In the letter, the father goes on to make the following charges against the Independent Children’s Lawyer:
    <li “=””>59.1. Ignoring an email the father sent on 17 March 2014 in which the father informed the Independent Children’s Lawyer that he was retaining C because of an alleged assault by the mother’s partner;

<li “=””>59.2. Delaying the issue of subpoenas so that the father would not be given any time to inspect material;<li “=””>59.3. “Cherry-picking” evidence from material subpoenaed to the police for presentation to the court on 28 April 2014;<li “=””>59.4. Ignoring evidence detrimental to the mother and to the mother’s partner;<li “=””>59.5. Failing to keep an impartial and inquiring mind and failing to exercise independent forensic judgment;<li “=””>59.6. Failing to put to the court information provided to the Independent Children’s Lawyer by the children in conversations between the children and the Independent Children’s Lawyer;<li “=””>59.7. Advocating supervised time between the father and C in circumstances where the father asserts there are outstanding serious allegations of assault by the mother’s partner upon C;<li “=””>59.8. Attempting to inappropriately read written submissions prepared by the father;<li “=””>59.9. Failing to interrogate the mother in relation to her questioning of the children;<li “=””>59.10. Questioning the father in respect of his willingness to return C to his mother.

60. The father concludes by alleging that the Independent Children’s Lawyer’s acts and admissions indicated that the Independent Children’s Lawyer was not acting in the best interests of the children; was not impartial and the Independent Children’s Lawyer had deliberately failed to comply with his legal and professional requirements for improper purposes.

Material tendered by the father

61. As indicated, apart from the affidavit of 1 October 2014 to which I have already referred, the father relied upon a number of exhibits. It is simplest if I describe each Exhibit.

Exhibit 48

62. Exhibit 48 is the email the father sent to the mother on 17 March 2014 informing her of his decision not to return C to her care because C was scared because the mother’s partner kept hurting him. He informed the mother that C had a sore back and had seen a doctor that morning and had been given a medical certificate until Wednesday. He also informed the mother that he saw the police at midday that day.

Exhibits 49 and 50

63. Exhibit 49 are Optus records the father tenders to demonstrate he made telephone calls to the children’s schools after 2 September 2014 to check on each child’s performance at school.
64. Exhibit 50 is a copy of the letter written by the mother’s lawyer dated 2 September 2014 referred to above.

Exhibit 51

65. Exhibit 51 is a COPS event reference number … which is the initial COPS entry for 14 March 2014 which contains the entry “reason for no action – incident rejected. Fabrication”.

Exhibit 52

66. Exhibit 52 is a COPS entry of an attendance by the police at the mother’s household at 10pm on Sunday 5 February 2012. The father had given police information that he had concerns that his two children had been subjected to an assault by the mother’s partner. The police verified that the children seemed to be well cared for. The COPS entry indicated that the mother’s partner was agitated and confrontational; smelt strongly of intoxicating liquor and was well affected. The exhibit makes clear that both children were in bed asleep at the time the police arrived at the premises and that both children stated to the attending police officers when they were woken that they were fine and ok. Neither child presented with injuries. The exhibit also indicates that the father attended the police station on 27 February 2012 to follow up the investigation and told police at the time that “I’ll escalate this higher if nothing is done”; “I’ve already reported one incident where the Commissioner asked me if I wanted this police officer sacked, I told him that everyone makes mistakes”; “I’ll speak with [Mr GG], the superintendent, the Ombudsman, the Commissioner and the media if I have to”.
67. The father had produced to the police a tape recording of his conversation with C on the telephone. The police entry records that the police viewed the recording to be an attempt to have the child conspire with the father and encourage the child to say that he was not ok.

Exhibit 53

68. The father tendered pages 155 and 156 of Exhibit 53 which are documents produced under subpoena by Family and Community Services. Those pages are a contact record by a “notifier” whose name has been redacted. The father asserts that it should be inferred from the content of the contact record that the notifier was the Independent Children’s Lawyer. Although there is no direct evidence as to who spoke to the Department, that is a reasonable inference, although there are other possibilities. The note is dated 31 March 2014. The Department are told that the police are currently investigating an alleged assault on C by the step-father that occurred about a week previously. The Department are informed about the circumstances of the execution of the recovery order and that the police were concerned the father may be saying inappropriate things to C and may be psychologically abusing him. The caller was concerned about what the father may do and that the father may react negatively if the investigation did not result in charges being laid against the step-father. The caller said that the father paid attention and cares for C more than B. The caller informed the Department that the matter would appear in court in about a month’s time and that in the meantime the court had suspended C’s time with his father.
69. Even if the Independent Children’s Lawyer was the notifier, the statement about the police’s concerns in respect of the father’s behaviour is consistent with the COPS statement contained in Exhibit 56 (which is set out above and which the father energetically puts in issue).
70. The father also complains that, in the event that the notifier was the Independent Children’s Lawyer, the Independent Children’s Lawyer was providing information to the Department based on the account of the police without the Independent Children’s Lawyer talking to the child. There is no evidence that the Independent Children’s Lawyer had not spoken to the children and the Independent Children’s Lawyer puts in issue that he had not met with the children in relation to the March incident.
71. The second contact record (page 155 of Exhibit 53) is a second contact record where the Department are informed of the allegations of assault that have been made and that C, in the presence of his father, had said that “His step-father severely kicked him in the back and assaulted him five times on his head with a rolled up sleeping bag and twice more by a ball. [C] said his mother was also assaulted in his presence by his step-father. There were no signs of injury or marks noted by [the notifier]”. It is less likely the Independent Children’s Lawyer made this notification.

Exhibit 54

72. Exhibit 54 are further documents provided by the police. The father relies upon a document dated 9 May 2014 which appears to be a copy of a page from a diary upon which a police officer has written the following questions and answers:

Questions for [I.C.L.]: –

1) Who is the caregiver to the children? [Ms Dickens]

live w mum; no time w dad; only [C]/phone access [indecipherable]

2) has it previously been found in FLC that [Dickens] children fabricated stories &/or were coached by [Mr Dickens]? 1^st set of proceedings – court accepted children were being coached & encouraged re: Foster Incident

3) what happened in FLC re: the allegations of the WWE match? No answer recorded

4) is [Dr L] prevented from treating [C]?

not sure? – will check

5) what court ordered / formal counselling has been offered to the boys & what has it revealed?

Various experts suggested by court; [Dr F] & [Mr Q – have been [indecipherable]

6) has the boys schools been contacted? No answer recorded

73. The father put some emphasis on the fact that the Independent Children’s Lawyer, in response to questions from the police officer, said words that led to a police officer making a note that in the first set of proceedings, the court accepted that the children were being coached and encouraged. The father relies upon that to suggest that the Independent Children’s Lawyer was providing inaccurate information to the police. I note however, that at [60] of Sexton FM’s 2011 reasons (exhibit 46), Her Honour concludes that “I also give substantial weight to my findings about the pressure the children are under from the father’s unrelenting attempts to have them adopt his highly critical opinion of the mother and [the mother’s partner]”.

Exhibit 55

74. This is an affidavit filed by the father on 19 March 2014 which sets out his version of the events of March 2014 that led to him retaining C and includes photographs that he took which the father asserts demonstrate the “lower back injury”.

The father’s oral submissions

75. The father in oral submissions made the following charges against the Independent Children’s Lawyer:
    <li “=””>75.1. The Independent Children’s Lawyer in the first proceedings had ignored the mother’s breach of an order which required Professor BB to be the single expert and the fact that the mother had been expert shopping to secure Dr U as the single expert;

<li “=””>75.2. The Independent Children’s Lawyer ignored or trivialised evidence regarding both the children being assaulted by the mother’s partner and the mother covering up the abuse;<li “=””>75.3. The Independent Children’s Lawyer trivialised the photos to C’ foot that were the subject of evidence in the first proceedings (2011);<li “=””>75.4. The Independent Children’s Lawyer and counsel instructed by the Independent Children’s Lawyer behaved as an advocate for the mother;<li “=””>75.5. The Independent Children’s Lawyer ignored C’ crying in a telephone call to the father in February 2012;<li “=””>75.6. The father complains that the Independent Children’s Lawyer supported an application for an ex parte recovery order in circumstances where he had received the email from the father saying that the child was being retained because of an alleged injury to the child perpetrated by the mother’s partner. The father asserts the Independent Children’s Lawyer failed in his duty to attempt to negotiate an outcome short of a court order which involved the police attending his home and taking C compulsorily;<li “=””>75.7. The father alleges that the Independent Children’s Lawyer did not place any weight on the fact that the mother had involved the children in counselling for over a year without informing the father that she had done so.

The Independent Children’s Lawyer’s submissions

76. The Independent Children’s Lawyer submitted that in relation to his interaction with the police, it was entirely usual and necessary for an Independent Children’s Lawyer to speak to the police where there is an ongoing investigation about alleged abuse of a child in the mother’s household. The investigation was in relation to the mother’s partner arising out of the father’s allegations made in March 2014 and may have involved possible criminal charges against the mother’s partner. The police did not find sufficient evidence to charge the mother’s partner. The Independent Children’s Lawyer said that one of the calls he made to the police was at the request of the presiding judicial officer who had requested an update in relation to where the police investigation was up to.

Conclusion

77. I find that it was appropriate for an Independent Children’s Lawyer to interact with both the police and the Department in circumstances where both those agencies have an ongoing interest in knowing about what was happening in this court and the Independent Children’s Lawyer had a vested interest in knowing what either of those authorities were doing in respect of the children from time to time.
78. The Independent Children’s Lawyer also correctly says that notwithstanding any recommendation or position he may have taken from time to time at any court event, the ultimate decision for making orders (for example a recovery order or an order altering the arrangements in respect of a child’s time with a father) is a matter for the presiding judicial officer. I accept that based on information the Independent Children’s Lawyer had at the time, that he made a bona fide assessment that supporting an application for a recovery order was appropriate in the circumstances. Although the father wishes to vigorously challenge the police assessment of his behaviour on the events of 18 March 2014 and the police records on an untested basis, the Independent Children’s Lawyer was entitled to form a view that the father acted inappropriately on that occasion.
79. Making submissions and assertions, based upon what the father hopes to prove at a final hearing, provides no basis for the application. For example, the father’s assertions about his behaviour on 18 March 2014 cannot be accepted as uncontroversial, given what is in the written police document. There is nothing in what the father has adduced by way of uncontroversial evidence that would provide a basis for discharging the Independent Children’s Lawyer on the basis of actual or perceived lack of impartiality. There is no evidence that the Independent Children’s Lawyer has acted contrary to the children’s interests. The father has not demonstrated that the Independent Children’s Lawyer is incompetent in a professional sense nor has demonstrated that the Independent Children’s Lawyer lacked professional objectivity. No conflict of interest is established.
80. Accordingly, I dismiss the father’s application to discharge the order appointing the Independent Children’s Lawyer.