By Nicola Berkovic, Legal Affairs Correspondent, The Australian

SYSTEMIC FAILURE ALLEGED IN LEGAL AID GOVERNANCE

An independent children’s lawyer accused of misleading the Family Court in a case involving two children later gunned down by their father has been the subject of four complaints to Legal Aid NSW, a tribunal has heard.

The revelation raises potential questions about the level of oversight provided for independent children’s lawyers, who are appointed to represent the best interests of children and play a crucial role in many family law cases.

The conduct of independent children’s lawyer Debbie Morton previously came under scrutiny at an inquest into the deaths of Jack and Jennifer Edwards, who were shot and killed by their father at their West Pennant Hills home in Sydney’s Hills District in 2018.

Ms Morton was appointed to represent the Edwards children during a custody dispute between the parents.

The inquest has heard she misled the Family Court — a claim she denies — when she characterised the father’s violence as “heavy-handed parenting” and failed to mention his 18-year police history of domestic violence.

The NSW Civil and Administrative Tribunal on Monday heard that Legal Aid NSW had received four complaints against Ms Morton. One related to a case in which she was appointed to act only last year, known as Rader & Rader, in which two children were dragged unnecessarily from their beds at 2am by police officers and shifted to their grandparents’ care.

The full Family Court said in an appeal against the decision that the “drastic” order should not have been sought by the ICL or made by the judge, and had caused both children ongoing trauma.

The court ordered they be returned to the father’s care.

Ms Morton has since been removed from Legal Aid NSW’s ICL panel.

The father, “Mr Rader”, sought information from Legal Aid under the Government Information (Public Access) Act about its handling of his complaint against Ms Morton, about how many other complaints it had received about her, and about its actions in response.

It refused his request for the information, prompting him to launch NCAT proceedings.

Mr Rader told NCAT there was an “overwhelming public interest” in the release of the information because it could potentially disclose a “pattern of behaviour” by Ms Morton, and a “systemic failure in governance” by Legal Aid.

“Ms Morton was appointed as the ICL in my case after information came to light about the Edwards case,” he said.

Kiri Mattes, from the Crown Solicitor’s Office, told NCAT the disclosure would not be in the public interest because individuals expected complaints about ICLs to be kept confidential and family law cases were “highly sensitive”. The complaints were also often defamatory and not substantiated.

NCAT heard that Legal Aid received a referral from a Family Court judge related to Ms Morton’s conduct in the Rader case. It is unclear whether this was one of the four complaints.

Ms Morton said she had been unaware of the judge’s referral until the NCAT proceedings.

Shine Lawyers national practice manager Lisa Flynn said her firm was investigating a civil claim on behalf of the two Rader children alleging professional negligence on the part of “this lawyer”.

“What this family has been through is devastating,” she said. “Two children are suffering severe psychological trauma, which our client believes could have been avoided had the independent children’s’ lawyer appointed by Legal Aid acted differently.”

For Kids Sake chief executive David Curl said ICLs wielded “enormous power”, which could determine a child’s future, but there was no proper system of oversight.

“There’s no ongoing or proactive monitoring of their performance, they don’t get any routine feedback on the work, and there’s no system of accreditation to ensure they’re actually trained and competent to be working with or interviewing children,” he said.

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