Glanville and Glanville and Anor

[2013] FCCA 2412

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLANVILLE & GLANVILLE & ANOR [2013] FCCA 2412

Catchwords:
FAMILY LAW – Children – parenting orders – appointment of independent children’s lawyer.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 62G, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR GLANVILLE

First Respondent: MS GLANVILLE

Second Respondent: MS J

File Number: CRC 233 of 2012

Judgment of: Judge Scarlett

Hearing dates: 19 & 20 September 2013

Date of Last Submission: 20 September 2013

Delivered at: Coffs Harbour

Delivered on: 20 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Priestley

Solicitors for the Applicant: Leckie Law

Counsel for the Respondent: Mr Theobald

Solicitors for the First Respondent: Slater & Gordon

Solicitors for the Second Respondent: Peter Blackwell & Associates

ORDERS

1. Under the provisions of section 68L of the Family Law Act 1975 the interests of the children X born (omitted) 2007 and Y born (omitted) 2008 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange the appointment of a suitably qualified person.

2. Within 14 days from the date of these Orders the parties are to forward to Legal Aid New South Wales at Coffs Harbour copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.

3. The Independent Children’s Lawyer is granted leave to issue 10 subpoenas without charge.

4. The Independent Children’s Lawyer is granted leave to inspect and make copies of all material produced on subpoena.

5. The Application is adjourned to 28 November 2013 for mention before Judge Kemp at 9:30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT COFFS HARBOUR

CRC 233 of 2012

MR GLANVILLE

Applicant

And

MS GLANVILLE

First Respondent

MS J
Second Respondent

REASONS FOR JUDGMENT

1. Events in this matter have taken an unexpected turn, which has caused serious debate amongst the parties’ legal advisors.  Yesterday I indicated that I was prepared to commence hearing the parenting side of the proceedings and I was made aware that there was a reasonable possibility that the property side may resolve.  I do not think that that has been taken any further in the light of the events as they have transpired, which is hardly surprising.

2. The Family Consultant in this matter has in fact prepared two reports which have been released to the parties, one dated 7^th January this year, the other one 15^th May.  The Family Consultant herself was available yesterday and the parties’ legal advisors had the opportunity to speak to her about the contents of her Report. 

3. The parenting matter did not resolve and we embarked on the hearing.  Over a period of approximately an hour I heard a cross-examination of the Family Consultant.  Two things became clear from the Family Consultant’s reports.  One was that the relationship between the parties, in respect of the children, appeared to have deteriorated in the period of time between the two of them.  The second was that there was a concern about the situation relating to the older child X, with a degree of separation anxiety and a possibility – I take it no higher than that – of attention deficit disorder or possibly ADHD. 

4. In any event, this has particular relevance on the parenting arrangements between the parties including arrangements for X to go to school after spending time with one or other parent.  In the course of her evidence before the Court yesterday, the Family Consultant made it clear that she had varied her view as a result of some discussions which she had had with Dr A, a consultant paediatrician who has treated the child.  As a result of what the Family Consultant said were her discussions with Dr A, she varied her recommendations to provide that, in her view, the child should go to school from the home of the one parent – each time being the mother – but that there should be more weekend time with the father and more time during the school holidays.

5. This was a significant change, although possibly more significant than the parties were aware, even when the matter was before the Court yesterday.  Counsel for the Applicant Father tendered today, without objection from counsel for the Respondent Mother, a short letter from Dr A dated yesterday, 19^th September.  That letter referred to the child X and stated:

   The description of separation anxiety that I discussed with Ms B on Monday 16 September 2013, was sourced from mother’s verbal reports during consultations and her written reports.  My office was informed by Ms B in a telephone call that she was appointed by the Court in this matter.  

6. That is the message that came from Dr A’s letter tendered to the Court this morning.  It is not surprising that this letter was a cause of concern.  It appears that the view of Dr A, a consultant paediatrician and a person of some expertise, is coming to the Court in a second hand and indirect fashion which does not provide the best evidence of the view of Dr A.  I am informed and I am not surprised, that it is common ground between the parties’ counsel that there is a need for a report directly from Dr A. 

7. In my view, that is clearly the case.  It should be on affidavit, it may well be that Dr A may have to be cross-examined at some stage.  Mr Priestley of counsel for the Father also submitted that the Father sought to obtain evidence from the teacher of the child X and felt that there was a need to issue a subpoena for that evidence to be obtained.  Whether or not the teacher is prepared to depose to an affidavit is a matter of which we have no knowledge, but clearly there is nothing to stop the Father’s solicitors from issuing a subpoena to the teacher. 

8. The position, as far as counsel for the Mother is concerned, is that the situation has reached such a stage that it would be desirable and indeed preferable for there to be an Independent Children’s Lawyer appointed.

9. The reasons given for that by Mr Theobald, as I understand, are first, that there is – to use his words – “intractable hostility” between the parents on that issue.  And second, that the Independent Children’s Lawyer could exercise an independent role in gathering information for the benefit of the Court as to what is the situation, in respect of X in particular, but in the best interests of the children generally.

10. The appointment of an Independent Children’s Lawyer is opposed by Counsel for the Applicant.  His view is that, whilst there have been disagreements between the parties and they are engaged in litigation, that is not of itself evidence of an intractable conflict.  Indeed, they had jointly tendered on occasions in respect of matters involving the children’s welfare.  I have adjourned for the purpose of refreshing my memory about guidelines for appointing an Independent Children’s Lawyer, which are set out in the decision of Re K[1]. This is a decision of the Full Court of the Family Court handed down in 1994 and which remains to my mind still as valid an authority on the guidelines for appointing an Independent Children’s Lawyer now, as it was when it was handed down some 19 years ago. 

    [1] (1994) 17 Fam LR 537; FLC 92-461

11. The guidelines that are set out in the CCH Family Law cases commence at page 80,773 and proceed to 80,775.  At page 80,774, their Honours refer to cases where there is an apparently intractable conflict between the parents.  They go on to say:

    In this regard, we lay stress upon the words intractable conflict.  There is a dispute, of course, in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of longstanding conflict between the parents.  In such cases, the child is very much a pawn in the dispute, and is often used as such by either or both parents.  In these circumstances, we think it important that the child have the support and assistance of an independent person, and that the Court similarly have the assistance of such a person to present the child’s point of view. 

    Their Honours go on at page 80,775 to say that:

    In these cases, we are particularly mindful of the important honest broker role which can be played by a separate representative, especially if he or she is appointed early enough in the proceedings.

    One of the other guidelines I note on 80,775 is whether issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children. 

12. Had this case come to Court at the time of the first Family Report in January, it would be difficult to say that there was an intractable conflict between the parents.  Regrettably, it is clear that over the following months the degree of conflict between the parents on children’s issues appears to have increased significantly, and I take that very much from the second Family Report of May of this year, and from the evidence of Ms B.

13. The question of whether or not there is separation anxiety in respect of the child X, and the need to deal with his particular issues, has assumed a much greater importance than I suspect any of the parties’ lawyers believed in the days leading up to the hearing of this case.  This is not a case where the Court should take the parties’ lawyers to task for not preparing the matter sufficiently, because it is clear that what has arisen has only occurred in this past week, and it has thrown a completely different complexion on the matter, to the extent that the Court needs, in my view, a significantly greater degree of evidence relating to the children than any of the parties’ lawyers would reasonably have believed. 

14. I am of the view that the most efficient and satisfactory way of marshalling this evidence to be put before the Court is through the appointment of an Independent Children’s Lawyer under the provisions of section 68L of the Family Law Act 1975 (Cth). An Independent Children’s Lawyer can obtain evidence from the various medical professionals involved, and can consider the matter in an independent way from the views, no matter how sincerely held, of each of the parents.

15. It is late in the proceedings, one would say, to appoint an Independent Children’s Lawyer, but again, this is the way that this case has developed and for the best interests of X and Y, I am of a view that this is procedurally the best way to do it. Accordingly, under the provisions of section 68L of the Family Law Act 1975, the interests of the children X, born (omitted) 2007 and Y, born (omitted) 2008, are to be independently represented by a lawyer and Legal Aid New South Wales is requested to assist in arranging the appointment of a suitably qualified person.  Within 14 days from the date of these Orders, the parties are to forward to Legal Aid New South Wales at Coffs Harbour copies of all applications, responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.  The Independent Children’s Lawyer is granted leave to issue 10 subpoenas without charge. 

16. I propose to adjourn this matter for mention and I am suggesting 28^th November at 9.30am here.  As to the future hearing of this matter, my own view is that the parenting issues could take up to three days.  I have no idea at this stage as to whether the property issues will resolve naturally, but it seems to me that the case could take longer than the time normally available for a final hearing in a busy circuit such as Coffs Harbour. 

17. That may well require the matter to be specially fixed either in Sydney or in Coffs Harbour and at this stage, I would be unwilling to commit myself as to which was the more appropriate way because in each case it will involve some arrangements to be made.  I am hoping, however, that by 28^th November the position can be clearer and if the matter comes before Judge Kemp on that day, the matter can be mentioned by him.

18. The fact is, though, that this is a matter in which I am now involved.  I am most clearly part-heard and obviously I will need to stay with the matter and whether I hear it in Coffs Harbour or Sydney is a matter that we can decide on a later date.  I require a transcript of my reasons for this decision; they will be placed on the file. The Independent Children’s Lawyer, when appointed, is granted leave to inspect and make copies of material produced on subpoena. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  31 March 2014