KARL & KARL

[2010] FamCA 573

FAMILY COURT OF AUSTRALIA

KARL & KARL [2010] FamCA 573

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Karl

RESPONDENT: Mr Karl

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9881 of 2008

DATE DELIVERED: 26 MARCH 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 26 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS SEVDALIS

SOLICITOR FOR THE APPLICANT: JOHN CONQUEST

COUNSEL FOR THE RESPONDENT: MR P DAVIS

SOLICITOR FOR THE RESPONDENT: TIMOTHY MEPSTEAD

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS C SMITH

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

Orders

1. That all outstanding applications be adjourned for final hearing before me as the second case (as at this time) in the list of defended matters for the period of ten days commencing on 30 August 2010 at 10.00am as a three day matter.

2. That the matter be listed for mention before me at 9.00am on 29 July 2010 by telephone with the practitioners providing my Associate by email by 4.00pm on the last business day before the hearing with the telephone number on which they can be contacted for the hearing.

3. That unless otherwise impracticable, Registrar Field be appointed as the docketed registrars responsible for the management of the case.

4. That by 4 pm on 11 June 2010 the applicant file:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

5. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 11 June 2010.

6. That by 4 pm on 9 July 2010 the respondent file:

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

7. That the wife have leave by 9 April 2010 to issue subpoenae to:

   (a)     D Consulting Pty Ltd; and

   (b)    Macquarie Investment Management Limited,

   both returnable at 9.30am on 20 April 2010.

8. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

9. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

   (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

   (b)refer the case to the trial judge for directions as to its future management; or

   (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

   (d)return the case to the Registrar’s docket on a date to be fixed for further management

   AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

10. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 27 August 2010 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

11. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

12. That by 4.00pm on 13 April 2010, the husband provide to the wife:

    (a)all bank statements of any account held in his name or that which is jointly held by him and another person;

    (b)any documents in relation to the ownership of the horses;

    (c)all documents relating to the loan account of $787,000 in the trading trust; and

    (d)any documents relating to the shares held on trust by the husband for D Consulting Ltd.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9881  of 2008

MS KARL

Applicant

And

MR KARL

Respondent

REASONS FOR JUDGMENT

1. On 26 March 2010 the parties attended the first day of their final hearing.  The case was sent to the first day by Registrar Field.  The registrar’s orders were made on 16 February 2010.

2. Counsel for both the husband and the wife indicated that all parenting issues save for some very minor matters that were still subject to discussion, were all agreed between the parties.  The difficulty was that the Independent Children’s Lawyer did not agree.

3. In respect of the parenting issues, there are three children.  They are J born in April 1994 and who is therefore almost 16 years of age, A who was born in December 1996 and is therefore 13 years of age and M who was born in September 2003 and who is therefore 6 years of age.

4. The husband and the wife have been involved in a week about arrangement with the children for approximately 18 months.  Since litigation began, they have undergone an issues assessment relating to the children with a family consultant and have had a contested hearing before the Senior Registrar on 29 January 2009 at which point in time, the Independent Children’s Lawyer was appointed. 

5. At the time the senior registrar examined the matter, the issue upon which he had to rule was a modest one in parenting terms. 

6. Before me, the parties agreed on the final orders reflecting the interim arrangements that had been put in place when the hearing occurred.

7. The Independent Children’s Lawyer initially opposed the orders being made requesting that I make an order for a family report.  That was opposed by both counsel for the husband and the wife.  The Independent Children’s Lawyer said that she had three concerns:

   (a)   the wife’s health;

   (b)   the youngest child’s mild intellectual disability; and

   (c)   the amount of educational support that was occurring in each household.

8. All of the matters of concern may affect the future welfare of the children but the Independent Children’s Lawyer conceded there was no issue of protective concern such as would involve the Department of Human Services.  In essence, the Independent Children’s Lawyer said she could not consent to the orders.  She had not spoken to the children nor had she had anything more than the issues assessment by the family consultant.

9. Mr Davis on behalf of the husband said that the Independent Children’s Lawyer should not be permitted to proceed further because the parents had reached a private agreement.  He said the action of the Independent Children’s Lawyer was an inappropriate role.  Ms Sevdalis on behalf of the wife offered as one solution that the Independent Children’s Lawyer could be discharged.

10. Both parents agree they have worked things out and each acknowledges that the other is a good parent.  That statement was made publically.

11. The Independent Children’s Lawyer was appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”). Section 68LA(4) provides that the Independent Children’s Lawyer is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings. As such, the Independent Children’s Lawyer is not only a party to the proceedings but must contemplate what is best for the children based on the evidence available. The Independent Children’s Lawyer took the view that she would benefit by having a family report. However, as I pointed out, without significant cooperation from the parents, it would be difficult to see how a family report could get to the bottom of whatever was concerning the Independent Children’s Lawyer. It is the function of the Independent Children’s Lawyer to adopt a particular course of action that is in the best interests of the child and make a submission accordingly. That does not mean that the Court has to accept that submission. The relevant provisions of s 68LA make it abundantly clear that just because the parties resolve a parenting dispute, the Independent Children’s Lawyer is not redundant.

12. Section 68LA(5) sets out the specific duties of the Independent Children’s Lawyer.  Those are to:

    (a)act impartially in dealings with the parties to the proceedings; and

    (b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

    (c)if a report or other document that relates to the child is to be used in the proceedings:

    (i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

    (ii)ensure that those matters are properly drawn to the court’s attention; and

    (d)endeavour to minimise the trauma to the child associated with the proceedings; and

    (e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

13. Notwithstanding the fact that this is an area of private law, the Act has made it clear that the Independent Children’s Lawyer must act objectively in the best interests of the children.

14. Although I have no evidence in the Court file, there was no suggestion that the Independent Children’s Lawyer had not acted other than impartially.  Section 68LA(5)(b) requires the views of the children to be put before the Court.  That does not necessarily require a family report but the Independent Children’s Lawyer at least has the obligation to speak to the children.  To some extent, in this case, that can be overcome by both parents indicating that the children were content with the current arrangements.

15. The Act also requires the Independent Children’s Lawyer to endeavour to minimise the trauma for the children.  In this case, it was strongly argued by Mr Davis that putting the children through that family report exercise would do the exact opposite.  Having regard to the united position of the husband and the wife, I have to agree.

16. Finally, it is the responsibility of the Independent Children’s Lawyer to facilitate an agreed resolution of matters but only to the extent that doing so is in the best interests of the children.  In this case, Ms Smith made it clear that she was uncertain as to what was in the interests of the children in the future but with both parties adamant that they are doing what is best for the children, as they will have the ongoing responsibility, I can draw some comfort from that.

17. In my view, whilst the issues of concern are not matters where the Court ought to intervene because the parties could organise their own lives without orders anyway, it is also important to recognise that there is only so far that a court can go where there are no protective concerns.  A court cannot by its orders, make good parents and as such, even with the best philosophical intentions, cannot orchestrate the children’s future beyond the reasonable parameters which are very much under the control of the parents.

18. In those circumstances, the most sensible conclusion is to order that these children live according to the parenting orders as requested by the parties and I find that in those circumstances, they are in their best interests.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 July 2010