The findings of Magistrate Teresa O’Sullivan in the Coronial Inquest into the death of Jack & Jennifer Edwards ought to be read by every family lawyer, Independent Children’s Lawyer or other professional who assists the court in family law proceedings. Click the link to review the findings, from page 149 onwards.
It brings to the forefront the important role that the Independent Children’s Lawyer (hereinafter the ‘ICL’) plays in protecting a child from risk of harm.
As was seen in this case, the guidelines of the ICL, when not fulfilled properly, can have a dramatic impact on the way in which a family law case runs.
The ICL’s view is given significant weight by the Court. The ICL has the judge’s ear and the views of the ICL can and do impact on the orders the court makes in a child’s best interests, for better or worse.
The Coronial Inquest focuses on the conduct of the Independent Children’s Lawyer in the proceedings, from page 149 onwards.
Where did the Independent Children’s Lawyer go wrong?
There has been a lot of discussion in family law focus groups about this case, where the view expressed has largely been that the ICL has been the scapegoat upon which the death’s of Jennifer & Jack have been blamed and that ‘ICL’s don’t have a crystal ball to investigate the claims of alleged victims of domestic violence’. Some legal practitioners have formed the view that nothing the ICL could have done would have made any difference to whether Jack & Jennifer were brutally murdered by their Father before he took his own life (and subsequently caused the death of Olga, the children’s mother, who committed suicide subsequent to the deaths of her two children).
There has undoubtedly been a close spotlight placed on Independent Children’s Lawyers as a result of this inquest that may in some people’s view, unfairly impart a sense of responsibility on ICL’s to protect the safety of a child, in a manner that goes well beyond the role of the ICL.
It is fair to say that hindsight is better than foresight and the ICL’s conduct, where it failed to meet the guidelines, should not be viewed in a vacuum as information in relation to risk of a child always becomes available at stages.
However, this should not prevent an analysis of the conduct of the Independent Children’s Lawyer in this case, as it will serve as a tool to educate all Independent Children’s lawyers about the way they perform their role, now and in the future.
It is difficult to discuss this case and the manner in which the Independent Children’s Lawyer failed in her role in a respectful way, without casting aspersions. Nonetheless, it is important in the view of the writer that we reflect on where the Independent Children’s Lawyer went wrong and how she could have performed her role better, so that we can do all acts and things to avoid this course of events, ultimately leading to the deaths of two children, happening again in the future.
Where did the Independent Children’s Lawyer go wrong in her representation of Jack & Jennifer?
The Independent Children’s Lawyer in this case breached a number of guidelines. We go through the case chronologically to see when and how the Independent Children’s Lawyer breached the guidelines below:
Section 7 ICL guidelines – ICL is required to take into account the views of a counselor/mental health professional when assessing the degree of relevance of allegations of family violence
The first counsellor referred to as RB, who conducted family therapy with Olga, John, Jack & Jennifer, recommended on 30 November 2016, that Family Therapy be put on hold until a Family Assessment/Expert report was completed about risk, protection and resilience factors at which time the aims of therapy could be more clearly stipulated (i.e. whether the family therapy was for the purpose of repairing the children’s relationship with the father or for the purpose of assessing whether a relationship was possible or in the children’s best interests). These recommendations were made due to the nature of the allegations made by each of the parents and the children in relation to domestic violence perpetuated by the Father and due to the fact that each parent had different views about the aims of family therapy.
The views of RB should have played a significant role in influencing the ICL’s position at the interim hearing 3 weeks later on 22 December 2016, and the ICL should have brought to the Court’s attention the view of RB, that family therapy was not in the children’s best interests, at least until provision of an expert report. The ICL failed to inform the Court why family therapy had not been successful and insinuated that the reason for this was due to the mother being uncooperative. The ICL did not inform the court that further therapy was unlikely to be beneficial as stated at this time & advised the court and supported an order that such family therapy continue.
Section 4 ICL guidelines – ICL is required to ensure the Court is informed of the views of Jack & Jennifer in an admissible format where possible
The ICL met with Jack & Jennifer on 19 December 2016. The ICL’s file note did not record any disclosure from Jack & Jennifer that their father had perpetuated violence against them or that they were afraid of him. Instead, the file note stated that Jack was keen on seeing his father and Jennifer was ambivalent about seeing her father. A finding was made about this file note by Magistrate O’Sullivan that it was not accurate to the extent that Jack & Jennifer did not disclose domestic violence by their father, given the disclosures by the children to the mother, to RB family therapist, to the Family Consultant who completed a Memorandum to the court only weeks prior (wherein Jack & Jennifer disclosed domestic violence and said they did not want to see their father) and given subsequent disclosures made to the new family therapist RS in April 2017. The description of the meeting with Jack & Jennifer and lack of disclosures was effectively the polar opposite of all other independent evidence the ICL had before her.
At the inquest, Her Honour found that if Jack and Jennifer had told the ICL something which was materially inconsistent with the mother’s evidence, the CIC memo & RB’s letter (that being that Jack now wanted to see his father) then the ICL had an obligation to put that evidence in an admissible format so it could be relied upon before the Court.
Assuming the ICL was not inaccurate /misleading in her file note and assuming there was a materially inconsistent statement made by the children to her about their father, the ICL failed to put that information before the court, either in an admissible format, or at all.
The court did not accept the ICL’s oral evidence as to what she was told by Jack and Jennifer in December 2016, pursuant to her file note, given she an experienced ICL and she took no such steps to put information before the court about the children’s allegedly changed views.
It is notable that the ICL in her defence argued that she put it in her case outline that the children disclosed domestic violence and that they did not want to see their Father, but Her Honour did not accept this explanation due to the ICL guidelines providing that the evidence must be obtained in an ‘admissible form’.
ICL misled court in relation to Jack & Jennifer’s disclosures, their wishes and breached several guidelines at the Interim Hearing on 22 December 2016
Whilst this is not specifically an ICL guideline, it is also of paramount importance, above and beyond a lawyer’s duty to one’s client that each practitioner upholds their duty to the court. In this regard, all practitioners must take care in their communications with the court so as not to mislead the court in any way.
By the time of the interim hearing on 22 December 2016, the ICL had a significant body of information putting her on notice in relation to the father’s history of domestic and making clear that Jack & Jennifer did not want to see their father, namely as follows:
- The CIC memorandum which identified that Jack & Jennifer had made allegations of violence against their father & both did not wish to see him;
- RB’s letter raising concerns about family violence and child protection issues due to allegations made by each of the parents & the children;
- The father’s affidavit which admitted to hitting and yelling at the child Jack and downplayed incidents;
- The material produced by NSW Police which detailed allegations of domestic violence, including allegations of domestic violence by two of the father’s prior partners, an allegation of stalking by the father’s adult child JC, an AVO JC had filed against her father, and JC also alleged she had been abused by her father as a child and that is why she had cut contact with him.
The ICL nonetheless, on the spot without consultation with the parties or Jack & Jennifer, put a proposal to the court for Jack & Jennifer to spend time with the Father at Christmas, for 3 hours, and furthermore for 3 hours each week thereafter. This proposal was not put to the parents and without consulting an expert or the children and there was no independent evidence supporting why this proposal was in the children’s best interests. The ICL in her oral submissions to the court was critical of the Mother at the interim hearing, stating that she was not supportive of the relationship between Jack & Jennifer and the father, that there was no independent evidence of the allegations made by the Mother of family violence, she said if there is family violence it ‘ought to be taken lightly’ and she put the Father’s behaviour down to ‘heavy handed parenting.’ The ICL specifically stated that nothing in the material caused her any ‘risk concerns’ despite the overwhelming amount of independent evidence to the contrary.
The ICL in this case mislead the court at the interim hearing on 22 December 2016 as follows:
- The ICL misled the court as to the contents of the NSW subpoena material, referring to the contents of it as ‘heavy-handed parenting’;
- The ICL did not accurately inform the court of RB’s views about family therapy, why it had not worked and why it should not continue – instead giving the Court the perception that the Mother was at fault for it not going well as she was not cooperative;
- The ICL did not inform the court of the true nature of the children’s wishes, nor that the orders proposed were contrary to their wishes;
- The ICL put the Father’s behaviour down to ‘heavy handed parenting’ despite no such comments being in the CIC or any other independent evidence before (or not before) the court;
- The ICL did not put evidence before the court as to why the court would made orders that are in accordance with the children’s wishes.
The ICL further breached several guidelines by her conduct leading up to and including at the interim hearing as follows:
- The ICL never sought the views of RB family therapist, the family consultant or the children regarding the proposed contact regime;
- The ICL did not put to the children the contact regime and give them an opportunity to comment on it;
- The ICL did not tell the children she intended to propose orders which were contrary to their wishes;
- The ICL did not put before the court in admissible form how the children would feel if orders were made contrary to their wishes to spend time with their father;
- The ICL promoted orders which enabled the children to come into contact with a person who a had, according to their own disclosures, perpetrated family violence against them;
- the ICL failed to obtain and put before the court any independent evidence supporting why it was in the children’s best interests to have contact with their father, an alleged perpetrator of violence, for 3 hours per week.
The ICL effectively invited His Honour to proceed on the basis of her submission that the children had positively told her they wanted to see their father without drawing His Honour’s attention to the significant evidence to the contrary which had been expressed to third parties other than the mother, and was in an admissible form.
The specific Guidelines breached by the ICL, in conducting herself in the above manner, were as follows:
- Section 4 – The ICL is required to put children’s views before the court, in an admissible format;
- Section 5.3 – the ICL is to arrange for evidence to be before the Court about how a child would feel if the court does not reach a conclusion which accords with the child’s wishes;
- Section 5.4 – The ICL is to advise the child that they intend to make submissions contrary to the child’s views;
- section 4 & 5.3 – The ICL is to ensure that views brought to bear on issues before the court are drawn from & supported by admissible evidence, not from a personal view of the case;
- section 5.2 – The ICL should guard against stepping beyond his/her role and seek guidance from a Family Consultant/other professional where necessary;
- Section 7 – family violence are serious issues & should always be presented (to the court) as being so. The ICL is expected to be alert as to any risk of harm to a child that may arise from the other parties, or the environment in which the child might be.
Given the way ICL misled the Court, the Court placed significant weight on the ICL’s submissions and His Honour supported orders in manner proposed by the ICL and orders were put in place for Christmas contact, and for the children to spend time with the Father for 3 hours per week. Orders were made for family therapy to continue (despite RS assessment that it was not appropriate at this juncture, which was not put before the court).
Section 7 ICL Guidelines – ICL to be alert as to family violence issues & any risk of harm to a child that may arise from the other parties
The ICL required that the Mother’s solicitor arrange for Jack to be brought to her by the Father because ‘the mother brought the children with her last time and I usually alternate’.
In doing so, the ICL failed to have regard to the safety of Jack, given he would be travelling in a car with his father for an hour, a person he had alleged had perpetrated family violence against him.
When the Mother’s solicitor indicated this would not likely happen given the risk allegations in this matter and offered for the Mother to bring Jack to the ICL instead, the ICL threatened to bring an appliaction to the Court to remove the child from the Mother’s care.
Throughout the proceedings this guideline continued to be breached by the continuation of the contact regime between Jack & Jennifer and their father, in circumstances where:
- The ICL was told by the family therapist RS that Jack had his father was physically abusive to him and he did not feel safe with his father;
- The ICL was told by RS that both children had disclosed to RS about the Father’s domestic violence and the fact that they did not want to see their Father;
- Further Affidavits and a notice of Risk was filed by the Mother all of which deposed to acts of domestic violence towards her and towards the children;
- A parenting questionnaire was filled in by the Mother, when the matter was transferred to the family court, disclosing various acts of domestic violence towards her and towards the children;
- The ICL proposed the continuation of family therapy, including that the children be introduced to the father during such therapy, despite that not being the recommendation of the family therapist RS;
- Suggesting to the Mother’s solicitor that the mother was thwarting family therapy & threatening the father’s solicitor that if such conduct continued, she would bring an application to have Jack removed from the Mother’s care;
- Continuing to endorse family therapy despite RS forming the view and expressing that view to the ICL that the father had perpetuated family violence against the children (and alleging instead at the inquest that RS had endorsed the continuation of the therapy).
ICL misled the Court and breached several guidelines at the Interim Hearing on 13 June 2017
On 13 June 2017, the ICL put to the court in a case outline and orally a number of factually incorrect propositions and in so doing she misled the court once again as follows:
- the ICL submitted there was no independent evidence to support the Mother’s allegations despite the fact that:
- both children had told the Family Consultant and RS Family Therapist about family violence towards Jack;
- The Mother had raised issues of violence with the family therapist as recorded in RS letter 30.11.16;
- The Father had admitted family violence in his affidavit but characterised them as less serious;
- The Father had a history of violence against a number of ex partners & a serious disclosure of stalking by his adult child JC;
- the Father had a number of children from previous marriages none of which he had contact with and one of those children JC refused all contact with him because of his violence towards him as a child, and she had a current AVO against him.
- The ICL put to the Court that the Family Consultant has some concerns as to the children’s views being influenced by the mother;
- The ICL failed to inform the court that the children had independently told the Family Consultant about the Father’s violence & selectively quoted parts of the CIC to support her position & did not inform the court of aspects of the CIC which undermined the contact orders she sought;
- The ICL put to the Court that her recommendation to continue the time regime takes into account the children’s wishes when it did not;
- The ICL did not inform the court as to the children’s wishes that they did not want to see their father (in an admissible format or otherwise) nor did she inform the court, the children or the parties she was making a submission that was contrary to the children’s wishes;
- The ICL did not inform the court of her view that the risk to the children had increased in light of the further independent evidence of violence by the father towards the children, that was before her including the significant body of evidence uniformly revealing that the Father was abusive, controlling and violent;
- The ICL put forward a proposal that in effect placed the children in regular contact with an alleged perpetrator of physical harm, contrary to the information the ICL had received from the Family Consultant, the Family Therapists (1 and 2), instead downplaying the risk that the father posed to the children;
- The ICL put forward a proposal, without any independent evidence supporting it (nor had she obtained advice from the family consultant in relation to it) that the father collect Jack from his house each morning and take him to school, and in so doing put Jack in further regular contact with a person who he alleged had perpetrated domestic violence against him and she also put the mother at risk, as such proposal would have involved the Father becoming aware of the Mother’s address. The ICL ignored clear red flags of this proposal as to how it risked Jack’s safety;
- In making this submission, she also failed to inform the court of the fact that the Father was alleged to have been stalking the Mother, including attending one of her yoga classes, a matter which was relevant to the risk of harm to the mother if he was to become aware of her address;
- The ICL gave Her Honour the impression that there was no evidence to suggest why the children should not be spending time with their Father and there was no reason the children were not attending the visits besides ‘the children do not want to go’ despite this being clearly contrary to the volume of independent evidence in the possession of the ICL;
- The ICL put forward the continuation of a contact regime despite the children refusing to attend the visits & blamed the father’s solicitor as he did not seek to discharge those orders despite it being her role to ensure the best interests of the children remained paramount.
The Inquest made findings against the ICL that as a result of her putting several factually incorrect matters to the Court & selectively informing the court of issues in the independent evidence that supported the orders she sought, she misled the court. This ultimately led the court to misapprehend that the mother, rather than the father’s history of abuse and a contact regime designed by the ICL that was contrary to the children’s wishes, was the cause of the children not wanting to spend time with the father. In the ICL’s view, it was in effect the Mother’s fault why the children were not spending time with the Father and not because of his domestic violence towards the children and towards her. The children’s wishes were once again not put before the Court by the ICL. Counsel assisting the court submitted and it was accepted that her submissions had the cumulative effect to create a ‘materially distorted view of the case for the court.’
Having been mislead by the ICL, the Court adopted the orders proposed by the ICL, save for in relation to the proposal that the father collect Jack each morning and take him to school. Orders were thus made for the contact regime to continue, such that Jack & Jennifer would continue to see the father for 3 hours per week. Further orders were made for the Mother to provide confirmation from her employer she was able to drop Jack & Jennifer to school (as the children were at times missing school) and for the ICL to have liberty to apply if Jack missed school.
The guidelines breached by the ICL, in behaving in the abovementioned manner, were as follows:
- Section 4 – The ICL failed to ensure that the court was fully informed of the children’s views;
- section 4 & 5.3 – The ICL made submissions contrary to what the Family Consultant, the Family therapist 1 and 2 had all said were the children’s wishes not to see their father;
- Section 5.3 – The ICL did not put any evidence before the Court as to how the children would feel if forced to have contact with the father;
- Section 5.3 & 5.4 – There was no evidence that the ICL told Jack & Jennifer that she intended to make a submission contrary to their wishes to continue to see their father for 3 hours a week on an ongoing basis, despite their refusal to do so;
- Section 4 & 5.3, section 7 – The ICL disregarded the views of all experts involved and instead advocated for orders that were opinion based, that required the children to have weekly contact with an alleged perpetrator of harm with no expert or admissible evidence on which to base those submissions. She did not present to the court the issues of family violence in a serious manner which she was required to do. She was not alert to the risk of harm to the children as a result of the proposal she made.
Section 7 ICL Guidelines – The ICL should as far as practicable ensure that evidence of family violence & abuse that is relevant to the best interests of the child is put before the Court.
The 2nd Family Therapist RS told the ICL on a number of occasions about her concerns about continuing the family therapy, ultimately culminating with her statement that she had ceased family therapy, that both children had no desire to see their father, that they had been physically and emotionally abused by their father and they did not want him to be a part of her lives. She further opined that the Father had a narcissistic personality disorder, and believed Jack & Jennifer would not be safe from psychological and possibly physical abuse if they were made to see him. She recommended that family therapy therefore cease and asked to write a report for the court about her findings.
The ICL did not ask for a report from RS nor did she put before the Court any evidence in relation to the disclosures by Jack & Jennifer to her and her recommendation about the suspension of family therapy.
ICL misled the court as to the evidence supporting the allegations of family violence towards Jack & Jennifer in her case outline and at the Hearing on 14 February 2018
The ICL misled the court in her case outline as follows:
- The ICL suggested that there was scant independent evidence of family violence;
- The ICL continued to characterise the Mother’s allegations as the ‘Mother’s claims’ & relied on the absence of evidence to police as a basis to minimise the claims, despite the volume of independent evidence in support of the domestic violence having occurred;
- The ICL suggested that “on the evidence currently available, neither party had demonstrated a responsible attitude to parenthood”
Nonetheless, the ICL acknowledged a change of residence for Jack & Jennifer would not be in their best interests and sought orders per the Family Consultant report for the mother to have sole parental responsibility, for the children to live with the mother and spend no time with the father.
A notation was made that any time the father is to spend with Jack & Jennifer in the future is to be in accordance with their written wishes.
At the Inquest, the ICL alleged she had suggested a s68B injunction prohibiting contact between Jack & Jennifer and the Father. However when pressed on this, the ICL said she had only done this because the Mother had requested it. Ultimately, the ICL indicated that the parties did not involve her in the negotiations in relation to final orders and suggested that she did not put such an order to the Court as the parties did not press for it.
This was also a breach of the ICL’s obligations to bring to the attention of the Court any matter relevant to the children’s best interests & which would call into question the advisability of any agreed settlement. If the ICL had come to the conclusion that it was appropriate for a s68B injunction to be ordered preventing any contact, then she should have put that proposal to the court, regardless of whether this was being pressed by the parties at the Hearing.
How can we do better?
The management of this case by the Independent Children’s Lawyer leaves many lessons to be learned as to how we as practitioners can do better in promoting the best interests of the children in the representation of our clients.
The case also leaves important clues for Independent Children’s Lawyers across Australia as to where they can go wrong, the things they need to avoid and some strategies and pitfalls to avoid the same errors of the Independent Children’s Lawyer in this case, which ultimately resulted in emotional harm being done to the children and due to her breaches of the guidelines, she was removed from the Independent Children’s Lawyer panel.
It is hoped that the failures of this Independent Children’s Lawyer in the way she represented her clients Jack & Jennifer, will teach some important lessons to all new and even not so new and experienced ICL’s out there, to enable them to improve their case management regime.
We hope the lessons to be learned from this case help all Independent Children’s Lawyers to be more careful and diligent in their decision making, whilst seeking professional support where appropriate, to ensure compliance with the ICL guidelines. Compliance with the guidelines and consultation where appropriate with our peers will undoubtedly better ensure that the children’s best interests & the child’s protection from harm are paramount considerations in all decision making.
A silver lining OR a preventable tragedy
One silver lining to come out of this tragedy is that many Independent Children’s Lawyers who have read this case will be scrutinising their own conduct in the performance of their duties as an Independent Children’s Lawyer.
But prevention is better than cure. Jack & Jennifer (& Olga) might still be alive, if the risks to the safety of Jack & Jennifer had been brought to the forefront and acted upon by all professionals & agencies (police, ICL & psychologists) earlier. It is also important to note the role played by our legislation in the deaths of Jack & Jennifer, which enabled the Father to obtain a firearm in the first place.
There are many fingers that have been pointed and people/entities who have been blamed in part for the deaths of Jack & Jennifer. Yes it was a preventable tragedy. Yes we all could have done more to prevent it. However, in the writer’s view, we must manage our grief in the appropriate way and assess what we have learned and how we can do better in the future. There are many lessons to learn from this tragedy which we hope will be the instigator for change so as to prevent similar tragedies in the future.
The closing remarks of Magistrate Sullivan are pertinent in this regard:
“It is unquestionable that their deaths, and the subsequent death of Olga, have caused unbearable suffering for many families, friends, and all those whose lives they touched. However, to describe this as a tragedy is to import a sense of inevitability that nothing could have been done to change the outcome. Instead, the evidence before this court plainly reveals that the deaths of Jack and Jennifer Edwards were preventable.”