Mother Seeks Removal of Independent Children's Lawyer
Gillen & Lindo [2021] FedCFamC1F 7 (2 September 2021)
On 15 March 2021, the ICL articulated a conclusion in her submissions, incorporating orders that provided for the father to immediately transition from supervised to unsupervised time. The mother sought the removal of the ICL alleging that such conclusion is violative of s 68LA of the Family Law Act 1975 (Cth) (“the Act”). The Court, in deciding whether or not a removal is justified, relied upon relevant jurisprudence and the Act.
Facts:
The mother seeks the removal of the current Independent Children's Lawyer (the ICL) in this matter, Ms Cruise. The mother's application is opposed by both the father and the ICL. The mother asserts that the ICL should be removed on the basis that she has not complied with obligations imposed upon her by s 68LA of the Family Law Act 1975 (Cth) (“the Act”) which set out the role of the ICL. The criticisms of failures to comply with s 68LA constituted allegations of actual bias, apprehension of bias, failure to develop an independent view of the best interests of the child and failure to act professionally.
On 15 March 2021, the ICL articulated a conclusion in her submissions, incorporating orders that provided for the father to immediately transition from supervised to unsupervised time. The mother alleges that such conclusion were so at odds with the evidence available to the ICL that they indicated either that she was biased, or that a reasonable apprehension of bias arises, or that the view formed was not independent, or that the view formed reflected in no manner the exercise of proper professional judgement in relation to the case. The mother claims that her evidence and the evidence of her supporting witnesses and evidence contained in subpoenaed material and material produced pursuant to s 69ZW of the Act point to the conclusion that the father in these proceedings has engaged in serious family violence against the mother, against the child and against two previous partners - as such, the child requires protection from risk of harm.
The mother asserts that the ICL's position that there should be a move to unsupervised time, considering the protection of risk, constitutes the ICL's egregious departure from her obligations to pursue the best interests of the child.
Issues:
I. Whether or not ICL has complied with obligations under the Family Law Act 1975 (Cth) s 68LA.
II. Whether or not the removal of the ICL is justified.
Applicable law:
Family Law Act 1975 (Cth) s 68LA - provides that the independent children’s lawyer must:
(a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
Howell & Carter (No 2) (2017) 317 FLR 151 - provided that the obligation upon an ICL is as to impartiality, but not so as to exclude an ICL forming views of the case and the best interests of the child prior to the full presentation of evidence.
(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.
Analysis:
The mother submits that she anticipated that the ICL continued to hold the view that supervision should be brought to an end particularly in the light of the fact that the ICL had not filed an updated outline of submissions. However, the circumstances leave the matter less than clear as to whether or not, as anticipated by the mother, the ICL adhered to the position attributed to her. Although the transcript of proceedings as produced by the mother noted that the ICL supported the father’s move to unsupervised time, the ICL was not called upon to advise whether such remained her position. Even if the outline of case reflects accurately the position to be taken by the ICL before the Senior Registrar, that is not a matter sufficient in this instance to warrant the removal of the ICL or to indicate that the ICL was seriously in default of her obligations pursuant to s 68LA.
The position of ICL does not demonstrate apprehended bias as there are considerations that point to the benefits of a move away from the artificial confines of supervised time, and considerations toward the maintenance of supervision as a protective measure.
Conclusion:
The Court dismissed the mother’s Application in a Case filed 16 July 2021 seeking the discharge of the Independent Children's Lawyer (ICL) and appointment of a replacement ICL. In the event that a party seeks the costs of this application, that party is to file submissions in writing in respect of such, accompanied by a schedule setting out the costs sought and their basis, within fourteen days of this judgment. In the event that a party resists costs as sought by another party, that party is to file and serve written submissions in respect of such within 28 days of this judgment. The proceedings are otherwise listed before the Registrar for further directions on a date to be advised.
