Fielding & Mason

Case [2021] FamCA 52

FAMILY COURT OF AUSTRALIA

Fielding & Mason [2021] FamCA 52

File number(s): SYC 5298 of 2009
Judgment of: ALTOBELLI J
Date of judgment: 18 February 2021
Catchwords: FAMILY LAW – PARENTING – Application to dismiss Independent Children’s Lawyer – Whether Independent Children’s Lawyer has acted independently – Whether Independent Children’s Lawyer has acted in the best interests of the children – Where no basis found for dismissal of the Independent Children’s Lawyer – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 34, 68L, 68LA
Cases cited:

Goode & Goode [2006] FamCA 1346

Howell & Carter (No. 2) [2017] FCCA 377

Knibbs & Knibbs [2009] FamCA 840

Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

T & L [2000] FamCA 351

Number of paragraphs: 32
Date of last submission/s: 18 December 2020
Date of hearing: 18 December 2020
Place: Sydney
The Applicant: In person
Solicitor Advocate for the Respondent: Mr Gad
Solicitor for the Respondent: LN Legal
Counsel for the Independent Children's Lawyer: Mr Moore
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 5298 of 2009
BETWEEN:

MS FIELDING
Applicant
AND:

MR MASON

Respondent
AND

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

18 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The mother’s application for the Independent Children’s Lawyer to be discharged is dismissed.

2.The matter be listed for Mention on 15 March 2021 at 9:00am.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. These reasons for judgment explain the Court’s decision in an application by the Applicant mother in this case to discharge the Independent Children’s Lawyer.

    BACKGROUND

  2. This case concerns two children, X, born in 2007, now aged 13 years, and his sister Y, born in 2008, now aged 12 years.  Both children currently live with their father and, regrettably, do not spend time with their mother.  Their mother is the Applicant, and their father is the Respondent.  In short, there are competing applications by the parents for the children to live with them, and spend time with the other.  The case is listed for final hearing for four days commencing on Monday, 12 April 2021.  In order to properly understand the context of the mother’s application to discharge the Independent Children’s Lawyer, it is important to set out some history.

  3. The father is 51 years old, and the mother is 47.  Their cohabitation began in 2003, and ended in 2009.  The children were very young when…

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AGLC
Fielding & Mason [2021] FamCA 52
Case
[2021] FamCA 52
Decision Date

CaseChat Overview and Summary

In the matter of SYC 5298 of 2009, Ms Fielding (the Applicant mother) applied to the Family Court of Australia for the discharge of the Independent Children’s Lawyer (ICL) appointed in proceedings concerning her two children, X and Y, who were residing with their father, Mr Mason (the Respondent). The dispute involved competing applications by the parents for the children to live with them and spend time with the other, with the children currently living with the father and not spending time with the mother.

The Court, presided over by Altobelli J, was required to determine whether the ICL had acted independently and in the best interests of the children, such that there was a basis for their dismissal. The mother's application to discharge the ICL was central to the proceedings, occurring at a critical stage as the matter was listed for a four-day final hearing.

Altobelli J reasoned that the ICL owes a duty to the Court, not to the parents. While acknowledging the mother's understandable concerns and frustration with the litigation process, the Court found no grounds to support the discharge of the ICL. The Judge concluded that it would be neither in the children's interests nor in the public interest to discharge the ICL at such a crucial juncture, particularly when detailed preparation for the final hearing was necessary.

Consequently, the mother's application for the Independent Children’s Lawyer to be discharged was dismissed. The matter was subsequently listed for a mention on 15 March 2021.

Orders

Orders of the court

SYC 5298 of 2009

BETWEEN:

MS FIELDING

Applicant

AND:

MR MASON

Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

18 FEBRUARY 2021

THE COURT ORDERS THAT:

1. The mother’s application for the Independent Children’s Lawyer to be discharged is dismissed.

2. The matter be listed for Mention on 15 March 2021 at 9:00am.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

These reasons for judgment explain the Court’s decision in an application by the Applicant mother in this case to discharge the Independent Children’s Lawyer.BACKGROUND This case concerns two children, X, born in 2007, now aged 13 years, and his sister Y, born in 2008, now aged 12 years. Both children currently live with their father and, regrettably, do not spend time with their mother. Their mother is the Applicant, and their father is the Respondent. In short, there are competing applications by the parents for the children to live with them, and spend time with the other. The case is listed for final hearing for four days commencing on Monday, 12 April 2021. In order to properly understand the context of the mother’s application to discharge the Independent Children’s Lawyer, it is important to set out some history. The father is 51 years old, and the mother is 47. Their cohabitation began in 2003, and ended in 2009. The children were very young when the parents separated. The mother commenced proceedings in 2009, and this was finalised at a final hearing before myself, as a Federal Magistrate, and resulted in final orders being made on 16 December 2011 for the children to live with their father, and spend time with their mother. It is purely by coincidence that the current round of litigation relating to the children comes back before me in my current capacity. None of the parties, including the Independent Children’s Lawyer, expressed any concerns about my continuing to hear the matter, once again, to finality. The impression created by the material before the Court is that there were difficulties implementing the 2011 orders and, it would seem, both parents experienced difficulties in their life in this period. The current parenting proceedings were commenced by the mother in 2017 initially in the Federal Circuit Court, and then transferred to the Family Court in 2020. In February 2018 the father moved with the children to Suburb B in the New South Wales D Region. In 2019 the mother moved to C Town, further north in the New South Wales D Region. The mother contends, and there is no reason to doubt, that C Town is 249 road kilometres from Suburb B and it would take two hours and 45 minutes to travel that distance by road. The parental relationship has not been a good one and, indeed, seems to be deteriorating partly because of the current litigation. The parents do not communicate. They do not trust each other. The material before the Court creates the impression that both parents, but more so the father, denigrate the other parent in the presence of the children. Orders for the children to spend time with the mother had been made and varied but the fact remains that the mother has not been able to consistently spend time with the children. From her perspective this is because the father is not complying with the orders. Moreover, she is convinced that he is not encouraging the children’s relationship with her, and in fact is doing precisely the opposite. The father denies this, and contends that the children were initially reluctant, and now simply do not want to spend time with their mother based on experiences that, they tell their father, occurred in their mother’s care.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Perhaps the mother felt that the Independent Children’s Lawyer owed some form of duty to her, but in reality, the Independent Children’s Lawyer owes a duty to the Court, and not to the parents.CONCLUSION Whilst the mother’s concerns about her children are completely understandable, as is her frustration about the litigation process, there is no ground on which to discharge the Independent Children’s Lawyer. Moreover, from this Court’s perspective, it is neither in the children’s interests, nor in the public interest, to discharge an Independent Children’s Lawyer at a critical stage of the case when detailed preparation for a final hearing needs to take place. The mother’s application for the Independent Children’s Lawyer to be discharged is dismissed.

Ratio Decidendi

Legal Principle Established

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