Hale and Hale
[2009] FMCAfam 669
•12 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALE & HALE | [2009] FMCAfam 669 |
| FAMILY LAW – Final proceedings regarding care arrangements for children aged 12 and 10 – high level of conflict between parties – father lives in rural NSW – mother lives in Adelaide – children live with mother – father alleges mother intent on alienating children from him – children independently represented – role of independent children’s lawyer – evidence concluded – independent children’s lawyer seeks adjournment prior to presentation of final submissions regarding appropriate regime for children – role of independent children’s lawyer. |
| Family Law Act 1975, s.68LA |
| Applicant: | MS HALE |
| Respondent: | MR HALE |
| File Number: | ADC 3419 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 12 June 2009 |
| Date of Last Submission: | 12 June 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 12 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kane |
| Solicitors for the Applicant: | Elrington Boardman Allport |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Lessli Strong & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Boehm |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission of SA |
ORDERS
Further consideration of the matter is adjourned part heard to 3 July 2009 at 10.00am for the completion of submissions.
IT IS NOTED that publication of this judgment under the pseudonym Hale & Hale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3419 of 2007
| MS HALE |
Applicant
And
| MR HALE |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally. At the request of the father’s solicitors, they have been transcribed.
This afternoon, I have to deal with the matter of Hale. It is a complex matter and already has consumed, I think, four days of hearing. It may be less than that, or it may be more – I can’t recall at this point – but it has certainly taken a deal of time, and for all sorts of reasons, regrettably, the hearing had to take place in two discreet portions.
Ms Hale, the applicant mother in the proceedings, was representing herself in the first portion, and more recently, she has been represented by her counsel, Mr Kane.
Essentially, the matter is difficult for these brief reasons: the parties’ three children – [X], born in 1996 and [Y] and [Z], twins, born in 1999 – have lived predominantly with their mother since the parties separated at some stage, I think, in the early part of 2002.
There were proceedings between the parties in, I think, firstly the Federal Magistrates Court in Canberra, and more recently in the Family Court at Canberra. The parties, during their marriage, lived in [D], which is a rural community near Canberra.
One of the major issues which was dealt with in the Family Court at Canberra, in April or May of 2005, was whether the three children concerned should be relocated in their mother’s care, from the [D] area to Adelaide.
Ultimately, his Honour Faulks J determined that the best interests of the three children concerned would be served if they lived with their mother in Adelaide, and his Honour made orders for the children to spend regular periods of holiday time in [D] with their father.
It is common ground that those arrangements have broken down so far as [X] is concerned. More recently, [Z] did not attend in [D] with her father during the Christmas holiday of 2008/9, and more recently again, [Y], while she was on holiday in [D] with her father, was bitten by a snake.
She was very ill and had to have extensive hospitalisation, both in New South Wales at [W], and more recently, in Adelaide. Because of [Y]’s snake bite, an earlier hearing, which was listed for February of this year, didn’t go ahead.
It is the father’s position that, for reasons to do with her own emotional need, the mother is intent on alienating the children from him. It’s his case – and I appreciate in these brief orally delivered reasons, I am not doing his case full justice in terms of its subtlety and complexity – it is his case that the mother has been successful so far as [X] is concerned, that she has been partially successful so far as [Z] is concerned, and there is the prospect that she will consolidate her gain so far as she ([Z]) is concerned in due course, and ultimately, this must mean that [Y], as the sole member of the mother’s household who is supportive of spending time with her father, will in due course be forced to capitulate to the views of her mother and also her older sister, with the consequence that all three children will lose the benefit of having a meaningful relationship with their father.
To a certain extent, the father’s position is supported by Dr Bollard, a psychologist who has been extensively involved in preparing family reports for this court in these proceedings. He prognosticates that there is a real risk of the children losing their relationship with their father.
On that basis, it is the father’s position that the court needs to do something urgently, so far as ensuring, certainly, that [Y] and [Z] have a meaningful relationship with him, and on that basis, it is his position that the court should make orders which would see the children being transplanted from Adelaide to [D] as soon as is practicable. It is his further position that he will be better placed to ensure that the children have a relationship with their mother than the mother is placed to ensure that they have a relationship with him, if the situation is as he proposes, and does not remain as the mother proposes.
The mother has, throughout the proceedings, and particularly whilst she has been acting on her own behalf, maintained that the father’s household is not an appropriate one for children of the ages of [X], [Y] and [Z] to live in, and she has made many criticisms of the father and his present wife; some of those criticisms are historical, others are more recent.
When [Y] was hospitalised at [W], for obvious reasons, that incident precipitated a very great deal of emotion. [Y], it seems, was very severely ill and there were doubts that she would pull through. Thankfully, she did pull through and she is much better, I am thankful to say, but it is certainly the father’s position that the mother behaved in an inappropriate way at [W], and he, throughout the case, was critical of the mother’s behaviour.
It is, I think, common ground that at the hospital, in the early part of this year, Ms Hale contacted New South Wales Police, and she has made, apparently, some allegations about incidents which she says occurred involving the children at the father’s home, which she alleges involve transgressions of the criminal law, and those matters are still in the process of being investigated and I will come to that in a moment.
When Mr Kane and his instructing solicitors, Elrington Boardman Allport, became involved in the matter, I was told by Mr Kane that the mother was no longer pursuing the aspects of her case that the father’s home was an unsuitable and unsafe one for children of the ages of these children to spend time in, and in cross-examination, Mr Kane did not, as I recall, cross-examine Mr Hale about matters that had been raised by his client in material which she had, I think, prepared herself. But the issue of the mother’s complaints to the New South Wales Police and what action the police, if any, would take, remained outstanding.
Given the level of complexity in this matter, at an earlier stage in the proceedings, I made an order that the children be independently represented in the case, and their representative is Ms Reed, an experienced Adelaide family lawyer, who is employed by the Legal Services Commission of South Australia. She has instructed Mr Boehm of counsel to appear on her behalf throughout these proceedings. The evidence in this matter concluded, I think, on 29 May 2009. At that stage, Mr Boehm told me that his instructor wanted to consider the evidence and consider her position before making a recommendation to the court, and on that basis, the proceedings were adjourned until today.
I haven’t heard Mr Boehm’s submissions, but I suspect they will involve the fine balance of this case. On the one hand, he will no doubt say the children have an entitlement to have a meaningful relationship with their father, and it is extremely detrimental to their best interests, particularly so far as [Z] and, to a lesser extent, [Y], is concerned, that a viable relationship may potentially be extinguished, and he will point to Dr Bollard’s view that there is a very significant likelihood that that relationship will be extinguished because the mother and [X], on the one hand, are not supportive of it.
But on the other hand, no doubt, I suspect, Mr Boehm will tell me that he is concerned that the three children concerned are well established in Adelaide; they are apparently happy children, they are doing well at school, they have friends, commitments, a loving relationship with their mother, and they do not wish to move to live in [D], and it would not be in their best interests to impose an extreme solution on them. Anyway, Mr Boehm wanted some time to consider his position, and I was prepared to give him that time, given the issues and the complexity in the case.
Today, Mr Boehm has asked for more time, and he has informed me that his instructor has not, as yet, formed a definitive view as to what is likely to be the best outcome for the three children concerned. The reason for that is as follows: Mr Boehm has consistently told me that Ms Reed is anxious to know what is the result of the police investigation as a result of Ms Hale’s complaint to the New South Wales Police in the early part of this year.
It became clear from the evidence, as it came from the parties, that
Ms Hale knew that the children concerned had been interviewed by some South Australian police officers at the request of the New South Wales Police – there had been, I think, some video taped interviews, and they appear to have been quite extensive.
He tells me that the police in South Australia have now sent a brief of evidence including, no doubt, the interviews from the relevant children, to a Detective B in New South Wales, and Detective B is the officer who has been tasked to investigate the mother’s complaints. He will read the material sent to him by South Australian Police by Wednesday next week, and he will be in a position to decide what, if anything, should happen by the latter stage of next week.
Ms Reed then wants to subpoena the police file, and once she has read the documents therein, she will be in a position to make a recommendation, and Mr Boehm, on that basis, whilst acknowledging that it is regretful that the proceedings be adjourned again, submits that, in the absence of any definitive view from his instructor, I am not in a position to deal with the matter today, and I would be derelict in my responsibilities if I went ahead, given the central role the independent children’s lawyer holds in these proceedings. Mr Kane is not greatly troubled by the adjournment.
He says that he wants to know what the independent children’s lawyer’s position is so that he can respond to it in his submissions, and it would be unwarranted to force Mr Boehm on half-cocked, as it were. Mr Kane’s position throughout is that he has been instructed by his client that she has come to the view that – if she hadn’t already – that she plays a key role in ensuring the children have a relationship with their father, and it is his position that his client is being as proactive as she possibly can be in encouraging the children’s relationship with their father.
And she says – I beg your pardon – rather it is Mr Kane’s position that there may be some silver lining in the dark cloud of any adjournment of the proceedings, in that the children, including [X], may adhere to the orders that his Honour Faulks J made some time ago now, and will go to [D] for the forthcoming midyear school holiday, which starts on
3 July this year.
Ms Lewis is not supportive of the application for an adjournment. She puts her opposition on a number of bases. Firstly, it is her position, I think, that the case has moved on from the mother’s allegations made to the police in the early part of this year and, in any event, the mother has formally indicated that she is not pursuing that former aspect of her case.
Secondly, she also points to the evidence that has been led about what happened at [W], and submits that it is, I think, unlikely that any charges will be raised as a result of the New South Wales Police investigation against her client or any member of his household. It is her case – when I say “her case”: Ms Lewis’ case – that any further adjournment of the proceedings will cause far greater prejudice to her client and his interests than to Ms Hale.
Finally, she points to the significant cost burden of these proceedings for her client, and I think I have already acknowledged that in earlier comments I have made, and she says that at the end of the day, the adjournment will serve no particularly useful purpose, given the police are unlikely to do anything about the matters raised with them.
In those circumstances, she says that it would be perfectly appropriate for Mr Boehm to put an “either/or” – either charges are laid against
Mr Hale or they are not – alternative positions. In answer to that proposition, Mr Boehm reiterates that he is quite simply not instructed with a position at this stage.
The role of the independent children’s lawyer is one which is recognised by legislative provisions – in particular, by the provisions of division 10 of part 7 of the Family Law Act. In section 68LA, the role of the independent children’s lawyer is set out.
Pursuant to subsection (2), the independent children’s lawyer must (a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and (b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
Pursuant to subsection (3) the independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
The role is further teased out in the following subsections (4) and (5) of section 68LA. In those sections, it is pointed out that the independent children’s lawyer is not the child concerns legal representative per se, and as such, is not obliged to follow instructions given to him or her.
Rather, the independent children’s lawyer has a number of other functions. He or she must act impartially, put forward any views which a child has expressed, and importantly, in the context of these proceedings, if a report or other document that relates to the child is to be used in the proceedings, analyse the report or other document to identify relevant matters for the court and ensure that all relevant matters are brought to the court’s attention.
So, in brief, the independent children’s lawyer has a significant role. He or she is not acting for a client, but he or she has a role to ensure that the court does what is best for the child concerned. As such, the independent children’s lawyer speaks from a position of independence and impartiality.
He or she is taken out of the adversarial hurly burly of those representing the parties themselves. In this case, for a number of important reasons, I had [X], [Z] and [Y] independently represented and, as I recall, Mr Hale was in support of their representation, but
Ms Hale, whilst she was acting on her own behalf, was not.
One of the reasons I appointed Ms Reed was because of the very significant level of conflict between the parties, and also the ages of the children concerned. As a result it seemed likely to me that the children were mature children – particularly [X] – and as such, they had an entitlement to have some input into the proceedings.
Having made the decision to have the children independently represented, I think it would be contrary to the view I took when appointing Ms Reed if I compelled Ms Reed and Mr Boehm to present a view which they did not feel was fully formed.
I concede that it is highly likely that not a great deal will turn on what the New South Wales Police do or don’t do, but I don’t think the application for adjournment that has been put by Mr Boehm is a fallacious one. I don’t think it’s related to any incompetence on the part of Ms Reed.
On that basis, I have no reason to think anything other than that, genuinely, Ms Reed wishes to adjourn the proceeding so that she can complete her mandatory task, which is to form an independent view, based on the evidence available to her, of what she thinks will be in the best interest of these three children in this complex and difficult case.
I am very concerned that this case has taken longer than it should have. That’s for a number of complex reasons – the snake bite, of course;
Ms Hale acting on her own behalf initially; then one of the children, I forget who – I think it was [Z] – was ill; and there were more delays.
I think it would be regrettable in the extreme if these proceedings miscarry because Ms Reed does not feel that she has been accorded the appropriate resources to form her view, and I think it makes no sense to compel Mr Boehm to present a view and I think there may be difficulties if he presents hypothetical views.
I agree with Ms Lewis’ position that the proceedings have to be brought to a finality at some stage, and they cannot be allowed to meander endlessly on, because the areas of dispute between the parties, I suspect, have the capacity to be endless, and I cannot adjudicate on all of them. My role is to draw a line, and say: I make the decision on evidence up until that line.
But for the reasons I have provided, I have come to the view that I should adjourn the proceedings. In so doing, I acknowledge the practical difficulties, particularly of reconvening the parties’ respective legal advisors at some mutually convenient time; but, subject to what the parties say, there is, to use the jargon of the times, a window of opportunity on 3 July, which is prior to the formal commencement of the holiday, and I have no commitments in court whatsoever on that day, which is three weeks from today and is a period, I would think, which would give Ms Reed time to do what she wants to do.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 12 June 2009
0
0
1