BENSON & JEFFREYS

[2019] FamCA 793

FAMILY COURT OF AUSTRALIA

BENSON & JEFFREYS [2019] FamCA 793

FAMILY LAW – CHILDREN – FINAL ORDERS – where the mother and father consent to orders for equal shared parental responsibility and equal time – where the Independent Children’s Lawyer does not consent nor opposes the orders – consideration of the Role of the Independent Children’s Lawyer – orders made by consent of the mother and father in terms of the minutes proposed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Bennett and Bennett (1991) FLC 92-191
Lyons and Boseley (1978) FLC 90-423
Waghorne and Dempster (1979) FLC 90-700

APPLICANT: Ms Benson

RESPONDENT: Mr Jeffreys

INDEPENDENT CHILDREN’S LAWYER: Southern Family Law

FILE NUMBER: MLC 11343 of 2016

DATE DELIVERED: 30 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 20 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Phaedonos Law

COUNSEL FOR THE RESPONDENT: Mr Potter

SOLICITOR FOR THE RESPONDENT: Kelly & Mchale Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Theoharopoulou

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Southern Family Law

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Jeffreys has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 11343 of 2016

Ms Benson

Applicant

And

Mr Jeffreys

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing commencing 19 August 2019. The matter ultimately settled as between the father and the mother and I made orders with their consent in accordance with a minute of orders which provided in effect for the parties to have equal shared parental responsibility and for the children to spend equal time with each of them. There was a notation to the minute of orders to the effect that the Independent Children’s Lawyer (“ICL”) neither opposed nor agreed to the orders. In these circumstances and in order to give the parties some finality I made the orders and reserved my reasons. These are those reasons.

Background

1. The father and mother in this case commenced cohabitation in May 2012. The father’s case was that he and the mother separated in March 2015, whereas the mother asserted that separation had occurred in mid-2016. This dispute is not material to these reasons. There are two children of their relationship X who is six years of age and Y who is three almost four years of age. On 8 February 2017, Judge Wilson made orders by consent in the Federal Circuit Court of Australia which provided for the children to spend time with the father supervised by his mother or his aunt.

2. On 12 April 2017 orders were made by Judge Wilson which provided for the children to live with the mother and spend unsupervised day time with the father. On 30 May 2017, orders were made increasing the children’s time with the father to consecutive days, daytime only. Finally on 6 December 2018, orders were made by consent providing for the children to spend one overnight with the father, once a week.

3. When the matter came on for hearing before me both parties sought orders that the children live with them and there were competing allegations with respect to the risk, albeit for different reasons, each of the father and the mother said the other presented to the children and their respective parenting capacity. Notwithstanding these allegations, the parties ultimately agreed upon a week about arrangement commencing on 6 September 2019.  

The Role Of The Independent Children’s Lawyer

1. The role of the ICL has been considered by the Full Court of the Family Court of Australia (“the Full Court”) and various Trial Judges over many years. In Lyons and Boseley (1978) FLC 90-423 (“Lyons and Boseley”) the Full Court summarised that role as leading evidence from witnesses, cross-examining witnesses, making submissions, ensuring that the wishes of the child the subject of the proceedings is available to the Court and where appropriate being involved in negotiations with a view to a possible resolution of the dispute in relation to that child. At 77,138, Wood J said as follows:

   In my view, what is expected of counsel representing the child is a vigorous and independent approach to the facts, so that the child's wishes, attitudes, anxieties and appreciation of the parental conflict in which he has become involved can be put to the Court from the point of view of the child rather than from the point of view of either of his parents.

2. Wood J went on to say at 77,140 as follows:

   It is very important that the child should not be lost sight of in the tug-of-ware between the parents for the privilege of his company, and the child’s legal representative should be satisfied that agreements for consent orders in relation to custody are in accordance with what the child’s best interests require. In my view the court is entitled to expect this of him, and if need be, ask him to justify his acquiescence to the proposed order.

3. In Bennett and Bennett (1991) FLC 92-191(“Bennett”) the Full Court agreed with the views of the Full Court in Lyons and Boseley and the decision of Treyvaud J in Waghorne and Dempster (1979) FLC 90-700 where he said at 78-735 as follows:

   The role of the separate representative at a hearing is to cross-examine the witnesses, to call evidence touching upon the child’s welfare, where necessary to ensure the children’s wishes are known to the court, and to finally address and make submissions to the court based upon the evidence adduced, and the law which he feels may be of assistance to the court in dealing with the questions raised for its determination.

4. Significantly for the purposes of these reasons the Full Court in Bennett also said at 78-259 as follows:

   We therefore consider that a separate representative must of necessity, form a view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of Counsel assisting a Royal Commission in the sense that his or duty is to act impartially but, if thought appropriate, to make submission suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child.

   …

   Unless the separate representative does this it seems to us that there is little purpose to having a separate representative.

Discussion

1. The Court must have regard to the best interests of the child or children who are the subject of the proceedings. In my view the role of the ICL is to assist the Court in determining the best outcome for the child or those children, whether the proceedings are contested or, as in this case, the parties have reached an agreement. Whilst parties to proceedings will sometimes neither consent to nor oppose orders, the role of a party to the proceedings is in my view very different to that of an ICL. In my view, having regard to the views expressed by the Full Court, an ICL who neither consents to nor opposes orders the parties ask the Court to make may serve little purpose.

2. It was difficult to understand, what the ICL’s view of the proposed orders was or whether in this case she considered those orders were in the child’s best interests in circumstances where the ICL said she neither consented to nor opposed the orders.  It is also not clear what the purpose of the ICL taking that position might have been and the submissions made in response to my questions did little to enlighten the Court as to that purpose. If the ICL does not consider that the proposed orders are in the child or children’s best interests; that view and the reasons for the ICL having formed that view need to be conveyed to the Court in order for it to make its decision as to whether or not it should make those orders.  

3. Ultimately absent any clear opposition to the orders by the ICL and in circumstances where I had the benefit of reading the trial material including the expert evidence and where the parties, who are ultimately responsible for the welfare of these children, had reached an agreement as to what they considered to be in their children’s best interests, I made the orders they sought. However in my view, there is some force in the observations of the Full Court in Bennett as to the purpose and utility of the appointment of an ICL in these circumstances.      

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 October 2019.

Associate:

Date:  30 October 2019