Boyle and Kennan

[2011] FamCA 356

FAMILY COURT OF AUSTRALIA

BOYLE & KENNAN [2011] FamCA 356

FAMILY LAW – PRACTICE AND PROCEDURE - Appointment of independent children’s lawyer over lack of support by parties

APPLICANT: Mr Boyle

RESPONDENT: Ms Kennan

FILE NUMBER: MLC 12438 of 2007

DATE DELIVERED: 9 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Hartley Healy Lawyers

Orders

IT IS ORDERED THAT:

1.This matter be adjourned for a first day hearing on 27 May 2011 at 9.00 am.

2.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child M born … November 2002 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be familiar with the matter and to attend on the first hearing date.

3.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5.That the reasons for judgment this day be transcribed and when settled a copy be placed on the Court file.

AND IT IS NOTED that the mother and the child M will travel to Melbourne to arrive prior to 27 May 2011.

IT IS NOTED that publication of this judgment under the pseudonym Boyle & Kennan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12438 of 2007

Mr Boyle

Applicant

And

Ms Kennan

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. I have heard the submissions of the lawyers for both parties on the issue of whether there should be an independent children’s lawyer. 

2. The mother says that she can not afford to pay for an independent children’s lawyer.  I don’t know whether that is in fact the case.  I don’t have evidence of the financial situation before me but more relevantly for that submission, it was not put that an independent children’s lawyer would ask for a financial contribution from the parties or either of them.

3. Mr Parker raises further points.  He submits that on balance he doesn’t think that an independent children’s lawyer would advance the case to an extent which is greater than the costs and time that would be extended by virtue of an independent children’s lawyer’s involvement. 

4. I agree that the involvement of an independent children’s lawyer usually does add some time to the final hearing but that is a matter which is usually because the independent children’s lawyer adduces relevant evidence or has a perspective different from the parties.

5. As to costs, no submissions were made in relation to how independent children’s lawyer is funded in Victoria but the costs of duplicating documents, sending correspondence as well as the extended time in a trial in my view do not outweigh the benefit potentially for M of having an independent children’s lawyer. 

6. In relation to the benefit, Mr Parker said that they have a balanced and well respected family report writer.  However, the parties will recall that at the time this matter was mentioned before me earlier this week, the wife took exception to some parts of Mr L’s report to an extent that it is now my impression that Mr L is an expert who is under some form of criticism or attack. 

7. The other matter which arises from the mention earlier this week is that the wife has a certain perception of these proceedings.  Those perceptions are covered in Mr L’s report and, in particular, that part of it in which he refers to the wife as saying that she is effectively immune from M being removed from her day to day and primary care by orders of this Court.  They were the same comments that she made to me earlier in the week. 

8. I am not satisfied on what I have heard to date that I can necessarily rely on both of the parties together presenting all of the facts and matters in the case that the Court has to have regard to in making a decision which is in the best interests of M.  For the mother’s part, it is abundantly clear that the mother does not regard the proceedings as capable of resulting in M being removed from her care so I query how seriously she will prepare for or prosecute her case.  Those who represent the father are there to represent him, not the child.  Presumably, they will point to behaviour by the wife that they will endeavour to characterise for the court as obdurate and high handed and indicative of the mother not being able or prepared to permit M to have a meaningful relationship with the father.  If this is so, the effect of a significant change in parenting arrangements and/or deficits and shortcomings of one or both of the parents will be conspicuously lacking if presentation of the evidence is left solely to the parents.

9. The role of an independent children’s lawyer is to form an independent view, based on available evidence, of what is in the best interests of M and then act in these proceedings in what he or she believes those best interests to be.[1]  The independent children’s lawyer will not be not retained by the M and he or she will not be bound by any instructions from him.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by M are fully put before the court, to analyse documents, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

10. The Court will require child focussed evidence as well as evidence of the parties in order to make a determination in which M’s best interests are the paramount (but not the sole) consideration.

11. In all of the circumstances, I am satisfied that the appointment of an independent children’s lawyer is not only warranted, it is required.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 March 2011.

Associate: 

Date:  19 May 2011