Children – criticisms of independent children lawyer’s chronology insufficient to justify their removal

In Lim & Zong [2021] FamCAFC 165 (27 August 2021), Tree J, sitting in the appellate division of the Family Court of Australia, dismissed an appeal from Judge Coates’ dismissal of a father’s application to discharge an independent children’s lawyer (ICL).

The father’s complaints related to a chronology document filed by the ICL and its content.

The court said (from [21]):

“A number of authorities have considered the removal of an [ICL], and … the circumstances which may justify such a course. From those, the following points may be discerned:

• It is not inconsistent with the independent … discharge of an [ICL]’s obligations … to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by …
• … [T]he [ICL]’s owes the same professional obligations to the court as does any licenced legal practitioner …
• On occasion, the [ICL] will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings …
• Inevitably the role of the [ICL] involves an exercise of professional judgment which may, on occasion, be precarious and difficult …
• It is not appropriate for a litigant to endeavour to micro-manage the [ICL], or critique every step that they take …
• … [E]ven if an [ICL] does make a mistake, the court will [not] necessarily accede to an application to have them discharged. …
• It is inevitable that the high standards of competence which the court expects of [ICL] are not always met. …
• A court should be slow to discharge an [ICL] on the basis of largely unsubstantiated complaints of one of the parties (…)
• [34] … [E]ven if it be that the [ICL] was mistaken … and acting upon that mistaken belief, misinformed the court via her … chronology, that is not conduct which would justify her discharge, unless it could also be shown that it was done either deliberately, or recklessly. (…)
• [63] … [A] chronology is simply an aide, and is not evidence. It is simply too long a bow to draw to say that … the [ICL] thereby misconducted herself in a way which justifies her removal. … ”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).