19th November 2020
Guardian ad Litem Panel
Department of Communities and Justice
by email
Dear Guardian at Litem Panel
Complaint about Dr Frank Ainsworth, GAL
I am writing on behalf of Sally Smith*, whose Guardian at Litem is Frank Ainsworth.
Mr Ainworth has never met with Ms Smith. He has never spoken with her on the phone. He has ignored emails sent to him by Ms Smith.
When Ms Smith called Mr Ainsworth on the telephone on Tuesday 17th, after her court case of the day beforehand, Mr Ainsworth said to her, "I'm not talking to you. Don't call again," and hung up. I witnessed and overheard the conversation.
At the risk belabouring the point, these 8 words are the only ones Mr Ainsworth has ever spoken to Ms Smith. The significant of this will become apparent.
On Sunday 15th November Mr Ainsworth sent Ms Smith a 239 page affidavit, forwarded to him by Ms Smith's court appointed lawyer, Mr Robert McLachlan. The affidavit is dated 13th November, 2020.
Mr McLachlan had informed Sally Smith in earlier correspondence that he would not talk to her; that he would only communicate with her through Mr Ainsworth, who refused, point blank, to communicate with Ms Smith.
Mr Ainsworth did not inform Ms Smith on 15th November that she needed to read and respond to the 13th November affidavit before mention of her case the following day. He did, however, inform her by email, at 8.20 am on 16th November - the day her case was listed for mention - that DCJ has sought an adjournment of her case until 2nd December.
On Monday 16th November, Ms Smith's case was listed for mention in (Redacted) district court, before Magistrate (Redacted). Mr Ainsworth did not inform Ms Smith at any time that her presence in court was required.
Nor did he speak with Ms Smith before instructing her court-appointed lawyer, Mr. Robert Mc Lachlan.
In writing, on several occasions, Ms Smith made clear to Mr Ainsworth that she wished her son to be restored to her care. All this correspondence is on record with DCJ.
Mr Ainsworth ignored Ms Smith's wishes and, without informing her in advance, instructed Mr Ainsworth that restoration of her son, John Smith*, to her care, was not being requested. This was in total contravention of Ms Smith's wishes.
I have pasted below letters I have sent to the DCJ Minister, Gareth Ward and Secretary Michael Coutts-Trotter about this matter this week as they provide supporting evidence of Mr Ainsworth's failure to represent his client.
Under the circumstances, I believe Mr Ainsworth should be removed immediately as Ms Smith's Guardian ad Litem.
yours sincerely
(Redacted)
Magistrate
(Redacted) Local Court
20th November 2020
Dear (Redacted)
re John Smith*
I am not a lawyer. I have no legal training. I am writing as a layman friend of Ms Smith's.
When it became apparent, in mid September 2020, that Ms Smith... was unable to advocate effectively on her own behalf, I offered to do so. My many approaches to FACS (all on record) to be allowed to advocate were knocked back. "Ms Smith has a Guardian to advocate on her behalf." I was told.
I should add here that the reason why Ms Smith was unable to advocate for herself was that she was greatly distressed by her separation from her son, John. Adding to her distress was the way in which she was being treated by the (Redacted) branch of FACS.
My offer to supervise visits between Ms Smith and her son, John, was knocked back by FACS, with no reason given....Similar offers have been made by two other longstanding friends of Ms Smith's. I wonder if you are aware of this?
On Monday this week, 16th November, you arrived at a legal decision regarding John and Ms Smith without her being present in court to argue her case, and present you with new affidavits. Your decision, a very profound one, given that you were ordering that John be permanently separated from his mother, was made without any reference to Ms Smith's wishes.
As you will be aware by now, Ms Smith was only provided with the 239 page FACS affidavit, upon which you based your 16th November decision, on 15th November 2020. Mr Ainsworth's email message of 15th November reads:
"Here is the lengthy DCJ affidavit. As you will see DCJ is seeking an adjournment until 2 December."
At the time of your decision, on the afternoon of 16th November, Ms Smith had not had one conversation with her Guardian ad Litem. Mr Ainsworth refused to speak with her, insisting that he and she could only communicate via email.
(Redacted) court has informed Ms Smith that she will have to wait for up to a month to acquire a copy of the transcript of what transpired in court on Monday. One thing is certain, however - namely that her Guardian, Mr Ainsworth mislead yourself in declaring that he was of the opinion that Ms Smith should be denied meaningful access to her son until he is eighteen years old; that she was not seeking restoration. This is in contravention of what Mr Ainsworth knew to be her wishes. It is in contravention of what Ms Smith's lawyer, Mr Mc Lachlan knew to be her wishes. In short, Mr Ainsworth did not advocate for her at all.
Why, (Redacted), did you make such a momentous decision regarding the life of (Redacted) year old boy, without Ms Smith being in court and having her voice heard? Did it not occur to you that providing Ms Smith with less than 24 hours to read, respond to and instruct her Guardian vis a vis the 13th Nov affidavit was a denial of natural justice?
And why, given that DCJ had declared its wish to adjourn the case until 2nd December, did you allow it to proceed on 16th November, without Ms Smith's presence?
Given that I have been denied the opportunity to advocate on Ms Smith's behalf, I now ask these questions in my role as an investigative journalist.
Either with your knowledge or without it, you have been deceived by Mr Ainsworth and Mr Mc Lachlan.
As matters stand at the end of the week, on 20th November:
- FACS will answer not questions put to staff by Ms Smith. She is told that she must refer her questions to her Guardian and/or her legal representative.
- Mr Ainsworth and Mr Mc Lachlan refuse to communicate with Ms Smith at all.
- Questions put to Woy Woy court staff are met with: "This is something you need to take up with FACS, your Guardian or legal representative."
To describe this as Kafkaesque is an understatement.
- The Minister, Gareth Ward, and Secretary Michal Coutts-Trotter do not respond in any way to communications with them. Nor do any of those copied on this email.
- It would appear that all those in whose hands John's future lies, especially yours, (Redacted), have decided to abandon even the pretence of transparency, accountability and natural justice and conduct a kangaroo court, from the proceedings of which, Ms Smith was deliberately excluded.
I have pasted below the letter I sent to the Guardian ad Litem panel yesterday.
yours sincerely
James Ricketson
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