In a parenting case in the family court at Newcastle, a father attempted to have the Independent Children’s Lawyer in his case discharged, claiming she lacked impartiality. However, the court found he had not established bias simply because he “believes it to be so”.
In the reasons for judgment in the case called Jardine & Sackville (court-ordered pseudonyms), the judge dismissed the allegation of bias and said that appointing a new Independent Children’s Lawyer would only delay the case further and cost the community, as the father had made use of Legal Aid.
The parenting case involved two children aged 5 and 7. The father had been through litigation previously with another child of a prior relationship, and the same Independent Children’s Lawyer had been retained in both proceedings.
The fact that the Independent Children’s Lawyer supported the mother’s case in these proceedings had led the father to believe that the Independent Children’s Lawyer was biased against him. He “believes the mother’s lawyer and the Independent Children’s Lawyer are colluding to thwart the parenting orders he proposes in respect of the two children”.
The court explained that while a previous judge in the proceedings had recused herself on the principles of ostensible bias, “these principles are applied to ensure the objective impartiality of judicial officers, but such principles do not apply identically to disqualify lawyers, Independent Children’s Lawyers and expert witnesses”.
Arguing an Independent Children’s Lawyer is not impartial
Instead, the court outlined the established bases on which an Independent Children’s Lawyer can be discharged. A court can consider the discharge of an Independent Children’s Lawyer if:
- There is evidence that the Independent Children’s Lawyer has in any way acted contrary to a child’s interests;
- There is evidence that the Independent Children’s Lawyer acted incompetently in a professional sense;
- It is apparent that the Independent Children’s Lawyer has demonstrated a lack of professional objectivity; or
- To continue to act would involve the Independent Children’s Lawyer in a breach of a fiduciary duty or a conflict of interest.
The court noted the father’s submissions in this case were based entirely on the ground relating to professional objectivity, but said the father unfortunately “did not lead any evidence to establish the ground, but instead relied upon his submissions about what he perceived the Independent Children’s Lawyer has or has not done”.
It was found the father “honestly believes the Independent Children’s Lawyer is biased against him” but the judge said this was a misunderstanding:
“The subjective views of a litigant are not, of themselves, probative of the fact. In other words, the Independent Children’s Lawyer’s bias is not proven merely because the father believes in it. All of the submissions made by the father in support of his application were the product of only his belief or perception.”
A fair trial
The judge further opined:
“During his submissions, the father said ‘All I want is a fair trial’, which is what he will get. The presiding judge ensures a fair trial; not the witnesses within it. Even if the Independent Children’s Lawyer has formed a view which is adverse to the father’s interests, it will not deprive him of a fair trial. Her eventual submissions about the orders needed to quell the dispute between the parties may not even be persuasive, much less dispositive.”
“The Independent Children’s Lawyer is obliged to represent the children’s best interests and that will generally entail her formation of a particular view about the parenting orders which will most effectively serve the children’s best interests. The father cannot have the Independent Children’s Lawyer discharged merely because, in the exercise of her duty, she forms a view that the children’s best interests will be served by orders that more closely reflect those proposed by the mother than those proposed by him.”
At first the father said a court transcript would prove “the Independent Children’s Lawyer’s eagerness for her re-appointment as the children’s representative in these proceedings, enabling her to exert her adverse views of the father”. But when he was given an opportunity of an adjournment to obtain the transcript, he rejected this. The judge said: “Inferentially, he must accept the transcript of that court event would not bear out his complaint.”
Why not simply appoint a new Independent Children’s Lawyer, just in case?
The father attempted to argue that “no harm would result from the grant of his application, even if the Independent Children’s Lawyer’s bias is not evident”. However, the court said that this was false. There had already been numerous delays in the proceedings and the court was unwilling to initiate another delay by discharging the Independent Children’s Lawyer. This would “burden the community with extra cost”. The court rejected doing so “simply so the father’s belief in her bias can be appeased”.
The dad’s application to have the court discharge the current Independent Children’s Lawyer was therefore dismissed.
The case reinforces the critical importance of supporting allegations of bias within the judicial system with evidence rather than merely putting forward a personal view about any lack of objectivity.
You can read the case here.
Independent Children’s Lawyers are appointed by the family courts to represent vulnerable children. You can read more about Independent Children’s Lawyers on the national Legal Aid’s dedicated website.
If you need family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services, on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
