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An independent children’s lawyer was cautioned for “cascading failures”, including for not chasing a non-responsive lawyer to ensure affected children understood final court orders.
The independent children’s lawyer (ICL) failed to comply with a seven-day deadline to explain final court orders to three children caught up in a Federal Circuit and Family Court of Australia (FCFCOA) matter.
Having chalked the deadline failure up to the conduct of the parents’ lawyers, the board was less concerned about this and more concerned about her “totality of failures” after final orders were made.
This included a failure to follow up with the mother’s lawyer when they did not respond to an email seeking to facilitate a time to speak with the children, a failure to follow up with the father’s lawyer when one of the children did not attend a Zoom meeting, and a failure to report back to both that she had failed to comply with the deadline orders.
The board added that she should have reported back to both parents’ lawyers prior to the discharge of her year-long appointment in May 2024.
With respect to at least one of the three children, the board considered it was “particularly important” that the final orders were explained to the child by an independent person, particularly as one order made it possible for the child to make decisions about her living arrangements.
“The board considers that this matter demonstrates cascading failures by the practitioner,” the board determined in its recent decision.
“One failure on its own does not amount to unsatisfactory professional conduct, indeed even a failure to undertake more than one of the steps … may not amount to unsatisfactory professional conduct, but it is the totality of failures that lead the board to the conclusion …”
The ICL was “particularly reluctant” to acknowledge the things she should have done differently, which demonstrated “limited insight into her conduct and the potential impact of her conduct on the parties”.
This includes the ICL’s excuse that she did not want to “hound” one of the children into speaking with her, given the child’s circumstances.
While the board accepted it required discretion, it considered that a “competent and diligent lawyer would have done more” to attempt to speak to the children to explain the orders, and would have reported back to the parties to ensure they understood she could not comply.
