Bondelmonte and Bondelmonte & Anor

[2016] FamCA 1145

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE AND ANOR [2016] FamCA 1145

FAMILY LAW – CHILDREN – Where an application is made for the appointment of a case guardian for the two elder children and that they be granted leave to intervene in the parenting proceedings – Whether the requirements of rules 6.08(1) and (2) and rules 6.09(b) and (c) of the Family Law Rules 2004 (Cth) are satisfied in this case – Where facts are peculiarly within the knowledge of the applicant and the father – Where the requirements of rule 6.08(2) are satisfied – Where the requirements of rules 6.09(b) and (c) are not satisfied – Where the application for the appointment of a case guardian for the elder children is dismissed.

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

Mankiewicz & Anor & Swallow & Anor (2016) 311 FLR 415
Re K (1994) 17 Fam LR 537
Re T (X a minor) (child: representation) [1993] 4 All ER 513

APPLICANT: Mr DD Bondelmonte

1^ST RESPONDENT: Ms Bondelmonte

2^ND RESPONDENT: Mr Bondelmonte

INDEPENDENT CHILDREN’S LAWYER: Ms Connor

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr SJ Williams

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE 1^ST RESPONDENT: Mr Batey

SOLICITOR FOR THE 1^ST RESPONDENT: Broun Abrahams Burreket

COUNSEL FOR THE 2^ND RESPONDENT: Mr Schonell, SC

SOLICITOR FOR THE 2^ND RESPONDENT: Karras Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wearne
Legal Aid NSW

Orders

1. The Amended Application in a Case filed by Mr DD Bondelmonte on 19 December 2016 is dismissed.

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 Bondelmonte & Bondelmonte and Anor 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 SYDNEY

FILE NUMBER: SYC 4839  of 2011

Mr DD Bondelmonte

Applicant

And

Ms Bondelmonte

1^st Respondent

And

Mr Bondelmonte

2^nd Respondent

REASONS FOR JUDGMENT

1. The applicant, Mr DD Bondelmonte, is the brother of the father in these proceedings and the paternal uncle of the three children who are the subject of the proceedings. By way of Application originally filed on 27 October 2016 and now contained in his Amended Application in a Case filed on 19 December 2016, he applies for an order that he be appointed as the case guardian for the two elder children, R born in 1999 (“R”) and S born in 2001 (“S”) (“the elder children”). In the event he is successful in that application, he further he applies for an order that the elder children be granted leave to intervene in the parenting proceedings between Ms Bondelmonte and Mr Bondelmonte. The applicant relies upon his affidavit filed 27 October 2016.

2. The application for Mr DD Bondelmonte to be appointed case guardian is supported by the father. The father sought to rely upon an affidavit filed on the day of the hearing, 19 December 2016, in support of his brother’s application. The mother opposed the father relying upon that affidavit. It would have been procedurally unfair to have allowed the father to rely upon that affidavit and I did not.

3. The application is opposed by the mother and the Independent Children's Lawyer. The mother relies on [29] to [47] of her affidavit filed 6 December 2016 and on a case outline filed 19 December 2016. The Independent Children's Lawyer tendered a number of documents without objection. 

4. Section 65C(b) of the Family Law Act 1975 (Cth) (“the Act”) is in the following terms:

   65C Who may apply for a parenting order

   1.           A parenting order in relation to a child may be applied for by:

   …

   (b) the child;

   …

5. In Mankiewicz & Anor & Swallow & Anor (2016) 311 FLR 415 the Full Court said at [10]:

   The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba).

6. Relevant to this application, the elder children have an unconditional right to apply for parenting orders. It is axiomatic that the two elder children each are “a child” for the purposes of s 65C(b) of the Act.

7. As the Full Court in Re K (1994) 17 Fam LR 537 at 550 point out (at page 550):

   …It is true that at common law a child cannot instruct counsel or a solicitor except through a next friend or guardian [now known under the Family Law Rules as a case guardian]. However, since the enactment of s. 63C(1)(b) of the Act in 1987 [now s 65C(b) of the Act], which enables a child to institute proceedings, the rule that a child may not give instructions should be regarded as having been abrogated by statute, for it seems inconceivable that Parliament intended that a child could commence proceedings but not give instructions to a solicitor or counsel to do so or to conduct the proceedings on his or her behalf.

8. The fact that the elder children are independently represented by the Independent Children’s Lawyer is no bar to them making such an application. The Independent Children’s Lawyer is not the children’s legal representative, is not obliged to act on the elder children’s instructions and must act in what the Independent Children’s Lawyer believes to be their best interests. A lawyer directly representing the elder children is their legal representative, takes instructions from the elder children and is not bound by what the lawyer believes is in the children’s best interests.

9. The current Family Law Rules that govern how a child is to start or seek to intervene in proceedings under s 65C(b) of the Act are found in Part 6.3 Family Law Rules.

10. Rules 6.08 and 6.09 of the Family Law Rules are in the following terms:

    6.08 Conducting a case by case guardian

    2.           (1)  A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.

    3.           (2)  Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.

    6.09 Who may be a case guardian

    4.           A person may be a case guardian if the person:

    (a)     is an adult;

    (b)    has no interest in the case that is adverse to the interest of the person needing the case guardian;

    (c)    can fairly and competently conduct the case for the person needing the case guardian; and

    (d)    has consented to act as the case guardian.

Are the requirements of rule 6.08(2) satisfied?

1. The Full Court in Re K (supra) refer to Re T (X a minor) (child: representation) [1993] 4 All ER 513 which established the proposition that the court has the ultimate right to decide whether a minor who comes before it as a party has the necessary ability and understanding to instruct a solicitor without a case guardian.

2. Counsel for the applicant concedes that the elder children understand the nature of the case.

3. Counsel for the applicant submits that:

   13.1.There is insufficient evidence for the court to be satisfied that either or both the elder children:

   13.1.1.Understand the possible consequences of the case

   13.1.2.Is capable of conducting the case

   13.2.The onus of adducing that evidence is on the mother and the Independent Children’s Lawyer and not on the applicant and the father.

4. R is 17 years and 6 months old and S is 15 years and 8 months old. They continue to reside with their father in the US despite confirmation last week by the High Court that the order requiring them to return to Australia to enable competing parenting applications to be heard and determined. The applicant travelled to the US to visit his brother and the elder children in about September 2016.

5. At [7], [53] and [58] of the applicant’s affidavit he says:

   7. As I identify in greater detail below:

   7.1 [R] and [S] are mature children for their respective ages.

   7.2 They each have expressed views to me of their wishes as to the outcome of these proceedings.

   7.3 They have each expressed concerns to me that their wishes are not being given sufficient and adequate weight and consideration by this Court.

   7.4 [R] and [S] understand that the role of the independent children’s lawyer is to act in their best interests.

   7.5 [R] and [S] wish to participate in the parenting proceedings and put their wishes and views to the Court.

   …

   53. I took this opportunity to ask the boys how they felt about the Court decision. [S] said:

   “Uncle [DD], it’s so unfair that they don’t listen to us.”

   [R] added:

   “I am almost 18 and an adult. We don’t want to go back.”

   [S] then said:

   “We want to stay here with Dad, [Ms P] and [N]. It’s so much better here.”

   [R] nodded in agreement

   …

   58. It was clear to me from both what they said to me and how they behaved, that they wanted to stay living with their father in [the US] and that they wanted their views known.

6. The mother at [42] of her affidavit says that the boys have matured.

7. Given this evidence and particularly the applicant’s assertion that R and S are mature children for their respective ages, I infer that both the elder children are Gillick competent. On that basis I find that they are capable of understanding the possible consequences of the case.

8. Counsel for the applicant argued there was no evidence the elder children were capable of conducting their case. He submitted that the elder children could not conduct the case in circumstances where solicitors are prohibited from entering into a contract with a child and would necessarily require a case guardian. No authority or statutory reference was provided for that submission. There can be no issue that the elder children are capable of giving instructions to a lawyer.

9. When considering whether the elder children could make arrangements to pay a lawyer I note there is no evidence in the applicant’s material to indicate how the costs of the case guardian would be paid although I would infer that the applicant is a person of some means. The applicant does not provide his residential address in Australia in the material he has filed although he provides an address at EE Street, Sydney, which I infer is a business address. Exhibit 20 indicates that it is likely that he is currently living in a house at Suburb G. The applicant said in late September 2016 he travelled to the UK for business. He travelled to UK via the US to spend a couple of days with the father and the elder children. As I stated in my Reasons for Judgment of 8  March 2016 at [60] “the father is a person of significant means” (a finding endorsed by the Full Court at [141] of its Judgment of 8 April 2016) The applicant’s description of the lifestyle that the father and the elder children are enjoying in the US is that they live in a home of a size which surprised the applicant and is situated in grounds which creates a relaxed setting adjacent to the water. The applicant, the father and the elder children all jet skied during the applicant’s time in the US on jet skis maintained by the family. He compared the current accommodation of the elder children to their former accommodation in the Eastern suburbs of Sydney which was according to the applicant “somewhat “cramped””. I comfortably infer that the elder boys are capable of obtaining any funding they need either from their father or the applicant to conduct their case. 

10. I conclude the elder children understand the possible consequences of the case and are capable of conducting the case.

11. If I am wrong about reaching those conclusions upon the evidence I have, there is at least slight evidence upon which those conclusions could be reached in circumstances where those facts are peculiarly within the knowledge of the father and the applicant and where the evidence which I do have is not explained away by either of them. That failure by the applicant and the father allows weight to be given to the evidence favourable to the mother and the Independent Children’s Lawyer and allows inferences favourable to them to be more confidently drawn (I note in that regard the useful discussion of relevant principles and case law concerning fact finding by Gleeson J in her Honour’s judgment in … dated … 2016 tendered by the mother at paragraphs …).

12. Further in the context of the argument as to who bears an onus of establishing whether or not a child understands the possible consequences of a case and is capable of conducting a case the applicant has to satisfy the requirements for rule 6.09(b) and (c) of the Family Law Rules. Both of these subrules are predicated on the elder children “needing a case guardian” (emphasis added). This rule places an onus on the applicant to establish each of the elder children “need” a case guardian. 

13. Counsel for the applicant accepted that if a finding is made that the requirements of rule 6.08(2) are satisfied then the applicant’s application pursuant to rule 6.08(1) would be dismissed. I make a finding that the requirements of rule 6.08(2) are satisfied.

Are the requirements of Rule 6.09 satisfied?

1. If I am wrong about rule 6.08(2) being enlivened, the question arises as to whether the provisions of rule 6.09 are satisfied. The applicant is an adult and has consented to act as case guardian (rule 6.09(a) and (d) Family Law Rules).

2. Both the mother and the Independent Children’s Lawyer submit that the applicant does not satisfy the requirements of rule 6.09(b) and (c) of the Family Law Rules because the applicant has not established that he has no interest in the case adverse to the interests of either of the elder children nor that he can fairly and competently conduct their case.

3. The applicant does not set out in his evidence what orders he would propose to seek on behalf of the elder children. On the day of the hearing he filed an amended application and then further orally amended that application. The orders that he would seek on behalf of the children are, in summary:

   26.1.That the order appointing the Independent Children’s Lawyer, so far as that order related to the Independent Children’s Lawyer independently representing the elder children, be discharged;

   26.2.An order for a views report in respect of only the elder children;

   26.3.That the mother’s Application in a Case filed on 10 February 2016 seeking the return of the elder children to Australia be adjourned until after that report is released; and

   26.4.A discharge or in the alternative a suspension of the return order confirmed last week by the High Court.

4. I accept the Independent Children’s Lawyer’s submission that there are limitations to the orders that the applicant seeks if he is appointed as case guardian which go to the issue of his ability to fairly and competently conduct the case and that the applicant’s orders would lead to a piecemeal approach raising the possibility of multiple interviews by different professionals.

5. The Independent Children’s Lawyer raises the interests the applicant may have in this case against the background of the relationship he has with his brother and in particular:

   28.1.The fact that the applicant is a current director of a company with the father and a former director and current shareholder of another of the father’s companies (see Exhibit 20); and

   28.2.Counsel for the applicant appearing at this hearing has previously appeared in the High Court for the father. 

6. These matters were not disclosed by the applicant and they were not the subject of any response by counsel for the applicant once they were raised.

7. I accept the Independent Children’s Lawyer’s submission that I need to consider the position in which I might be placing the elder children if one or both of them change their views.

8. Currently the elder children’s interests are aligned with those of their father but if they change, absent transparency in respect of the relationship between the applicant and the father, there is force in the submission that the applicant would be aligned to the father and would not fairly and competently conduct the case for the elder children. 

9. As part of the role of the Independent Children's Lawyer, she has an obligation to “ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court” (s 68LA(5)(b) of the Act).

10. By way of justification of the orders the applicant proposes, counsel for the applicant complains about the conduct of the Independent Children’s Lawyer at the time of the hearing that culminated in the orders that were made on 8 March 2016 and since that time. Counsel for the applicant asserted that the Independent Children’s Lawyer has failed in her duty under s 68LA(5)(b) of the Act. The only evidence to which the applicant refers is the statement made by S at paragraph [53] of the applicant’s affidavit that “they don’t listen to us”. The applicant also makes more general assertions that the children are of the view that their wishes are not being given sufficient and adequate weight and consideration.

11. Information and findings about the elder children’s views are set out in my Reasons of 8 March 2016.

12. In response to the criticism raised by counsel for the applicant, the Independent Children’s Lawyer refers to Exhibit 22 which contains two sets of minutes of orders and directions proposed by the Independent Children’s Lawyer dated 20  June 2016. Both proposed an expedition of the final hearing. The first set of minutes further proposed that the Director of Child Dispute Services in Sydney conduct interviews for a comprehensive family report in mid-July 2016 with that report to be available in early August 2016. If made, those orders would have enabled the elder children to come to Australia in the American summer holidays and for the matter to have possibly been heard on a final basis. In the alternative set of orders, the Independent Children’s Lawyer proposed a Chapter 15 report be prepared in a similar timeframe by Dr FF, Forensic Child Psychiatrist. The Independent Children’s Lawyer also relied upon Exhibit 21 which contains two emails sent to the father’s lawyers, one dated 7 December 2016 the other 9 December 2016. In the first letter the Independent Children’s Lawyer asked that the elder children be made available to speak with her by telephone on Friday 9 December. That did not occur. The letter of 9 December asks for the father’s lawyer to obtain his client’s instructions as to whether or not the boys would like to speak with the Independent Children’s Lawyer one day in the following week. Both these invitations were extended prior to the hearing in the High Court on 13 December 2016. It was asserted, without correction by counsel for the father, that there was no response to this correspondence.

13. On balance, there is no basis on the evidence to found an assertion that the Independent Children’s Lawyer has not attempted to ensure that the elder children’s views are fully put before the court. That of course was never to be in a “views only” report but a full report dealing also with the views of the younger child, the weight to be given to the views of all three children and all the other relevant s 60CC(2) and (3) considerations. It is also difficult for counsel for the applicant to maintain the complaint against the Independent Children’s Lawyer in circumstances where there is non-compliance with an order, now confirmed by the High Court, designed to ensure that the elder children come back to Australia to allow a comprehensive family report to be prepared.

1. The mother’s evidence put in question whether the applicant was or is a significant person in the children’s lives. In the proceedings seeking the return of the children, the residence of the applicant was not proposed by the father as an alternate place the children could live nor was he identified as a person who could assist with their accommodation. When that matter was raised with counsel for the applicant he said that he had no instructions from the applicant about his client’s ability to accommodate the elder children in Sydney pending the final resolution of the proceedings.

2. Counsel for the mother submits, and I accept, that the applicant leads no evidence that he has considered the significant issue of the two boys’ relationship with their sister. The applicant does not make any reference whatsoever to the younger child in his evidence.

3. There is no evidence that the applicant has spoken to either parent as to the orders he seeks on behalf of their children (although the sibling relationship to which I have referred would lead me to infer that the father well knows what the applicant is doing). There is nothing in the applicant’s evidence that would indicate that the elder children know that the applicant has filed the application to be their case guardian nor any indication of their views about the applicant being the person to do so. On the face of his evidence, the applicant has filed the application which he says is motivated by a desire to promote their welfare but without their specific consent.

4. Having considered the matters discussed, I am unable to find that the applicant has no interest in the case that is adverse to the interests of the elder children and that he can fairly and competently conduct their case.

Conclusion

1. I conclude that the requirements of rule 6.08(2) of the Family Law Rules are satisfied and accordingly 6.08(1) has no application. In the alternative I find that the applicant has not satisfied the provisions of rule 6.09(b) and (c) of the Family Law Rules. Accordingly, the application by Mr DD Bondelmonte to become case guardian is dismissed and consequently I dismiss the other applications which he seeks in his Amended Application in a Case filed on 19 December 2016.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 December 2016.

Associate:

Date: 22 December 2016