Lancet & Lancet
[2008] FMCAfam 525
•14 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANCET & LANCET | [2008] FMCAfam 525 |
| FAMILY LAW – Children’s issues – order for appointment of Independent Children’s Lawyer – appropriate orders when legal aid decline to provide funding – the court has no power to require legal aid to fund an Independent Children’s Lawyer – the parties, not the court, should pursue funding reviews with legal aid. PRACTICE & PROCEDURE – Stay of proceedings – power to stay family law proceedings – whether proceeding should be stayed – orders for separate representation of a child the subject of proceedings – Legal Aid not providing funding for Independent Children’s Lawyer – not appropriate to consider stay until review processes at legal aid exhausted. |
| Family Law Act1975, ss.60B, 68L, 68LA, and 69ZN Legal Aid Act 1978 (Vic.), s.34 |
| Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 JJT; Ex parte Victoria Legal Aid, Re [1998] HCA 44; (1998) 195 CLR 184 K, Re1994] FamCA 21, (1994) FLC ¶92-461 Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378 |
| Applicant: | MS LANCET |
| Respondent: | MR LANCET |
| File number: | MLC 1286 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 14 May 2008 |
| Date of last submission: | 14 May 2008 |
| Delivered at: | Ballarat |
| Delivered on: | 14 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.D. Curtain |
| Solicitor for the Applicant: | Vicki Sweet Family Law |
| Counsel for the Respondent: | Ms J.L. Stewart |
| Solicitor for the Respondent: | BJT Legal |
ORDERS
That the parties each resubmit the order of Magistrate Robinson for the appointment of an Independent Children’s Lawyer to Victoria Legal Aid together with an appropriate application for aid, and pursue such processes as are reasonably available to obtain a grant of aid for an Independent Children’s Lawyer until:
(a)an Independent Children’s Lawyer is appointed;
(b)the Victoria Legal Aid review processes are exhausted; or
(c)the parties are able to fund an Independent Children’s Lawyer of their own choice; or
(d)further orders are made.
IT IS NOTED that publication of this judgment under the pseudonym Lancet & Lancet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BALLARAT |
MLC 1286 of 2008
| MS LANCET |
Applicant
And
| MR LANCET |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This case concerns the care arrangements for three young children, A, born in 1998, B, born in 2000 and C born in 2002.
For many months leading up to these proceedings, the father had been actively participating in the children’s lives, caring for them, taking them to sporting events, and on his case had a close and loving bond with them. There were consent orders for the children to spend
5 nights a fortnight with the father made in May 2007 by consent.
Most recently, on 20 April 2008 at around 1.00 am, the wife says that the husband broke into her home through the living room window, armed with an axe. She was protected by neighbours, although the husband broke free from the hold of neighbours, at least once, in his attempts to pursue the wife. Eventually he was arrested by police. The children were in the home at the time, in bed asleep when the attack began, awaking to the sounds of smashing glass and screaming. The incident has had a significant impact upon the wife and the children, including one of the children commencing bed wetting, and another being teary at school.
The wife had the benefit of an Intervention Order in the past, however it expired on 20 July 2007. The wife says that in January 2007 the husband had ‘pulled a flick knife at changeover’ and had abused and threatened her regularly, including threats to blow up her car. In December 2007, the husband pleaded guilty to a number of breaches of the Intervention order. At that time, he stated to the state court that he had completed an anger management course and was ‘moving on’.
As a result of the incident the wife brought an urgent application for orders suspending the husband’s time with the children. As the family live in a regional centre, this application was listed before a State Magistrate. On 23 April 2008, Magistrate Robinson made orders suspending the husband’s time with the children. Her Honour also made orders for counselling of the children, and provision for telephone contact should a counsellor recommend it for the children. Her Honour also appointed an Independent Children’s lawyer under
section 68L(2) of the Family Law Act1975, and adjourning the matter to 30 April to allow the parties time to prepare material for an interim hearing. On 30 April, her Honour continued the suspension of the husband’s time with the children, made orders for the preparation of a psychologists report with respect to the children, and a psychiatric report with respect to the husband. Her Honour, assuming that Victoria Legal Aid would fund an Independent Children’s Lawyer in a case such as this, made orders for the psychiatrist to be nominated by the Independent Children’s Lawyer if the parties could not agree.
The issues are complex in that the Husband’s behaviour in April 2007 may be the result of a psychiatric illness. The husband admits to problems with alcohol, at least in the past. However, the husband denies the other allegations of the wife, and alleges that the wife has been unable to provide for the emotional wellbeing of the children. He says that she ‘yells and screams at them’, is ‘cold’ towards them, and that the children do not enjoy being with her. He alleges that the wife’s ‘focus in life is not the children who seem to come second to her’. He says the children are often unkempt, and not properly provided for by her.
It is likely that the Wife’s interests would be best served by never seeing the husband again. What time the children ultimately have with the husband (if any) needs to be determined with the children’s interests as the paramount consideration. What is ultimately going to be in the children’s best interests is a very difficult question, particularly if the children have previously had a strong emotional attachment to the husband, and the event in April was the result of an acute episode of mental illness that can be treated and managed in the future. If there is any truth in the husband’s allegations against the wife neither party may be able to present a case that clearly focuses on the best interests of the children, unclouded by their own interests.
Unfortunately, no Independent Children’s Lawyer had been appointed by Victoria Legal Aid when the proceedings came before me. I must now consider whether other orders should be made to attempt to have an Independent Children’s Lawyer appointed, and whether the proceedings should be stayed until that occurs.
Independent Children’s Lawyers
The power to appoint an independent children's lawyer is set out in s.68L of the Family Law Act. This section is engaged if the court considers that a child ought to be independently represented by a lawyer:
68L(2) [Order for independent representation for a child] If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
In determining when ‘the child’s interests … ought to be independently represented’, it is necessary to consider the ‘interests’ of the child, the objects and principles of the relevant division of the Family Law Act, and the role of an Independent Children’s Lawyer under the provisions.
The ‘interests’ of the child that are affected are the child’s day to day care welfare and development, the choice of adult who has legal control over the child’s activities and future until the child attains majority. In cases such as this it is difficult to consider an interest of the child that is not affected as the court orders will determine who has effective legal and practical control over the child’s life. Almost every parenting case has such far reaching consequences, at least in theory. In this case, however, the two adults that are presently charged with that responsibility have either behaved in a way or are the subject to allegations that lead to real doubt over their capacity to fulfil their duties to the children, if the allegations are true.
When one turns to the objects and principles of the Family Law Act the starting point is s.60b:
OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
60B(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) [Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Not only is it clear from the objects and principles that the interests of the children is to be the focus of the proceedings, but s.60ca provides expressly that ‘a court must regard the best interests of the child as the paramount consideration’. One also sees in s.60k clear requirements for the court to act quickly in cases involving allegations of family violence or child abuse. (Although I am not certain that the precise procedural documents that would be required to engage that section have yet been filed, I have no doubt they will be in the near future)
When one turns to the procedural provisions of the Family Law Act, sections 69ZN(2) through 69ZN(6) set out the principles that are particularly apt in this case:
69ZN(2) [Principles in interpreting this Division] Regard is to be had to the principles in interpreting this Division.
Principle 1
69ZN(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
69ZN(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
69ZN(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
69ZN(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
The role of the Independent Children’s Lawyer is described in s.60la as including:
General nature of role of independent children's lawyer
68LA(2) [Independent children's lawyer's role] 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.
68LA(3) [Suggested course of action] 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.
68LA(4) [The independent lawyer is not the child's legal representative] The independent children's lawyer:
(a) is not the child's legal representative; and
(b) is not obliged to act on the child's instructions in relation to the proceedings.
Specific duties of independent children's lawyer
68LA(5) [Duties of independent children's lawyer] The independent children's lawyer must:
(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.
More detailed guidelines have been published by the Family Law Courts, setting out the expectations of Independent Children’s Lawyers by the courts. Those guidelines include:
5. Relationship with the Child
The child has a right to establish a professional relationship with the ICL. In considering any views expressed by the child and the steps to be taken in a matter the ICL is to be aware:
· that each child will have different emotional, cognitive and intellectual developmental levels, family structures, family dynamics, sibling relationships, religious and cultural backgrounds; and
· that children are vulnerable to external pressures when caught in disputes involving their parents.
5.1 Information which should be explained to the child
When the ICL meets the child, s/he should explain to the extent that is appropriate for the child:
· the role of the ICL including the limitations of the role;
· the Court process (including any anticipated interlocutory stages); and
· the other agencies that may be involved and the reasons for their involvement.
The ICL is to ensure that the child is aware that information provided by the child to the ICL in some circumstances may have to be communicated to the Court, the child's parents or other persons or agencies. A strategy should be developed in consultation with any Family Consultant involved in the case and with the child as to the manner in which this is done. The aim is to minimise the potential for any adverse reaction towards the child.
· Despite the inability to guarantee the child a confidential relationship, the ICL should, however, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:
· how the child can have a say and make his/her views known during the process;
· that where a child of sufficient maturity wishes to have a direct representative who will act on the child's instructions, the ICL should inform the child of the possibility of applying to become a party to the proceedings;
· the involvement of any report writer, the nature and purpose of the report, the use to which the report will be put and that all parties will see the report; and
· how the ICL can be contacted by the child.
…
6.2 Meeting the Child
It is expected that the ICL will meet the child unless:
• the child is under school age;
• there are exceptional circumstances, for example where there is an ongoing investigation of sexual abuse allegations and in the particular circumstances there is a risk of systems abuse for the child;
• there are significant practical limitations, for example geographic remoteness.
…
6.5 Case Planning
The ICL is to seek to develop a case plan at the earliest opportunity, where appropriate, in consultation with any Family Consultant or other expert involved in the case.
In the case plan, the ICL should:
· canvass the nature of any reports or examinations of the parties and/or the child;
· develop a strategy for the involvement of the child in any examination/assessment process;
· liaise with any Family Consultant involved in the case, relevant government departments, contact centres, schools and agencies to bring together relevant information to assist the Court in assessing and determining the best interests of the child;
· develop opportunities for the matter to reach an agreed outcome which best promotes the child's best interests;
· provide information, support, and assistance as required for or requested by the child during the process of litigation, whether directly or by way of appropriate referral;
· be vigilant and make every endeavour to minimise systems abuse of the child; and
It is clear from the Act and Guidelines that the Independent Children’s Lawyer is to be an active independent advocate acting in the children’s best interests.
In Re K [1994] FamCA 21; (1994) FLC ¶92-461, the Full Court developed some guidelines for the appointment of an Independent Children’s Lawyer under the provisions as they were in 1994. Relevant to this case are the following extracts from the Full Court’s guidelines:
(i) Cases involve allegations of child abuse, whether physical, sexual or psychological.
In such cases we consider that the separate representative has an independent investigative role and that the child in any event should have an independent person looking after his or her interests. The separate representative can in such cases also fulfil the function of arranging for the collation of expert evidence and presenting that evidence to the Court.
(ii) Cases where there is an apparently intractable conflict between the parents.
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 long standing 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.
…
(vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare.
Such conduct would include cases where there is a background of serious family violence. In using that term we make it clear that it extends beyond actual physical violence to circumstances where there is a history of serious threats or psychological and emotional abuse of one or other of the parents or some other person having significant contact with the child. It is obvious that if one party is in serious fear of the other the child may need separate representation to protect his or her position
In this case I have no doubt that the learned State Magistrate’s order for the appointment of an Independent Children’s Lawyer was appropriate. There is nothing to indicate that the parties have the capacity to fund an Independent Children’s Lawyer from their own resources (as I have ordered in another case on this circuit) and must rely upon Victoria Legal Aid in this regard.
When Victoria Legal Aid does not appoint an Independent Children’s Lawyer
The question which arises in this case is what to do once Victoria Legal Aid declines to action an order requesting that it arrange the appointment and funding of an Independent Children’s Lawyer.
It must be noted that it is no part of the court’s role to determine to whom or to what extent Victoria Legal Aid funds litigation. That is entirely a matter for the Victoria Legal Aid, which is responsible to the relevant Minister and parliament for the use of the funds disbursed for that purpose: it is an administrative function, not a judicial function: see Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184.
It was submitted to me that Victoria Legal Aid undertakes what is in effect an indiscriminate allocation of 40 Independent Children’s Lawyer appointments at the beginning of each month in response to the first 40 orders received, and thereafter simply declines every other request. I do not have evidence of how Victoria Legal Aid chooses to disburse the funding it receives from the Commonwealth for family law matters. It appears to me to be remarkable if it were disbursed on an indiscriminate basis, as alleged. However, that is not a matter for the court. It is clearly a matter within the purview of the Commonwealth Attorney-General as it is the Commonwealth that provides family law funding.
It was further requested by the parties that the court ‘re-make’ the Independent Children’s Lawyer appointment order at the commencement of the following month, so that it would be received by Victoria Legal Aid within the first 40 requests for the next month. This appears to me to be entirely inappropriate. The making of another order in the same terms appears to me to be contrary to law. Once an order has been made by the court, it is not appropriate for the court to then make the same order over and over in some hope that it will make any difference. Indeed, as a matter of law once the court has dealt with an issue, that is the end of it, subject to appeals. Whilst there is the ability to alter procedural orders, there nonetheless ought to be some change in circumstances that makes the previous order inappropriate.
I have been asked by the parties to consider requiring the staff of the court, or at least my chambers staff, to post another copy of the order to Victoria Legal Aid at the start of each month until such time as the order may be actioned by them. It appears to me that this submission must also be rejected as:
a)If the process is designed to manipulate the system Victoria Legal Aid has adopted to determine the funding of cases (even if it is an indiscriminate grants system), it is inappropriate for the court to participate in such a scheme;
b)It is a very real waste of public resources to have an officer of the court simply photocopy an order and post it to Victoria Legal Aid (potentially month after month), when Victoria Legal Aid have already received a copy of the request.
c)If the court engaged in the practice suggested, then it would effectively be reviewing orders for the appointment of Independent Children’s Lawyers to determine whether to resubmit them to Victoria Legal Aid. The parties would be entitled to be heard if the court were not considering re-submitting the order and notice of the decision which may then be subject to judicial review if it is an administrative decision.
d)For the court to engage in such a process would undermine the authority of the court as it would be a tacit acceptance by the court that at least in one area that the court did not expect its orders to be respected after the expiration of one month or unless submitted a number of times.
e)If an Independent Children’s Lawyer is not funded by Victoria Legal Aid the appropriate review mechanism is provided for in s.34 of the Legal Aid Act1978 (Vic). This review mechanism allows for a person affected by the decision to seek a review through Victoria Legal Aid’s review process. Adopting the system requested appears to thwart the parties’ rights of review through Victoria Legal Aid.
It remains, it seems to me, a political and administrative question as to the method by which the funding is administered (and also how much funding is provided) for what is effectively children of those families without financial resources that become embroiled in family law proceedings.
In these circumstances, at most, I would order that the parties pursue the appointment of an Independent Children's Lawyer in accordance with the orders, either by funding directly from their clients, if their clients happen to come into funds (which seems particularly unlikely) or by themselves making application to Victoria Legal Aid on behalf of their children for funding or review of funding decisions by whatever process the Victoria Legal Aid office has established in this regard, and pursuing such processes until such time as the process is reasonably exhausted, there is an appointment of an Independent Children’s Lawyer, or further orders are made in the proceedings.
Stay of Proceedings
I have considered carefully whether or not I should order a stay of the proceedings until such time as an Independent Children’s Lawyer is appointed. A stay of proceedings is a serious question. The parties have a right to a determination by the courts and the Commonwealth courts have habitually held that a case properly filed in court must be heard and determined by the court. Indeed, that is the very nature of the function of the court: to hear and determine the cases that are brought before the court. However, in limited circumstances the court does have power to stay proceedings.
In Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ at [23] said:
24. In Jago v. District Court of New South Wales ((26) [1989] HCA 46; (1989) 168 CLR 23.) … Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness ((28) ibid, at p 28.). His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v. Department of Labour ((29) (1980) 1 NZLR 464, at p 481.):
“public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
…
In her judgment in Jago ((31) ibid, at p 74.), Gaudron J stressed that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands." Her Honour added the comment ((32) ibid) "that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand". …
25. It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v. Spautz ((34) [1992] HCA 34; (1992) 174 CLR 509, at pp 519-520.). When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition ((35) ibid, at p 520, see, in particular, the approving reference to the judgment of Richardson J in Moevao v. Department of Labour (1980) 1 NZLR 464, at p 482.).
In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ said:
6. … In Walton v Gardiner[15], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter[16] in which Lord Diplock spoke of "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". His Lordship went on to describe as "very varied" the circumstances where "abuse of process" can arise[17]. It will be necessary to return to that consideration later in these reasons.
7. In Hunter[18], Lord Diplock disavowed the use of the word "discretion" in describing the exercise of the power to prevent abuse of process. Thereafter, in R v Carroll[19], Gaudron and Gummow JJ observed that the use of the term "discretion" in this context indicates no more than that, although there are some clear categories, "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse". They added[20]:
"It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration."
8. A further distinction must now be drawn. It is accepted that the inherent power identified by Lord Diplock applies to both civil and criminal proceedings. However, the power does so with somewhat different emphases attending its exercise. In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said[21]:
"The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice."
These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law. Earlier, in Jago v District Court (NSW), Mason CJ had observed[22]:
"[T]he criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context."
Abuse of court process
9. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues.
…
14. In Ridgeway v The Queen, Gaudron J explained[32]:
"The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose[33], as well as proceedings that are 'frivolous, vexatious or oppressive'[34]. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard[35]. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories'[36] because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case[37]. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose[38] and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging'[39] or 'productive of serious and unjustified trouble and harassment'[40]."
15. Earlier, in Rogers v The Queen, McHugh J observed[41]:
“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."
There is no doubt that in this case the recourse to the court’s processes by the parties is for a legitimate purpose. In these proceedings, the children are not a party. An order has been made that their interests in the proceedings ought to be independently represented. A finding implicit in the orders for the appointment of an Independent Children’s Lawyer is that the children’s interests are not likely to be adequately represented by their parents. If the children are not represented in these circumstances, there is a real risk that the proceedings will be unfair to them. There is also a real risk that the further hearing of a case, in these circumstances, would be likely to bring the administration of justice into disrepute. This is particularly so in the context of cases where the children’s best interests are the paramount consideration under the legislation. Indeed, if resources are such that there is any funding available, there is a strong argument that the person most affected by the proceedings (the child) ought to be funded before other parties.
The impact of proceedings continuing without an Independent Children’s Lawyer will be likely to manifest itself in many practical ways, for example:
a)the likelihood of the case being actively controlled and managed by the assistance of an Independent Children’s Lawyer is lost;
b)the likelihood of the impact of the proceedings being greater upon the children due to a lack any sense of input into the process due to being represented is greater;
c)the potential safeguards against family violence are less as there will not be an independent representative of the children to press their needs;
d)the likelihood of a cooperative and child-focused approach being engendered during the interlocutory stages is less;
e)the risk that appropriate evidence gathering will not be undertaken;
f)the risk that issues bearing directly on the children’s needs will not receive an appropriate focus.
Whether the court can ultimately provide a fair trial in this particular matter, from the perspective of those likely to be affected most by the orders (the children), is open to real question if they are not represented by an Independent Children’s Lawyer or an independent litigation guardian. Notably this is a case where there has been a finding that they ought to be represented.
However, this is not a case where one party, at arms length, seeks recourse against another. To stay proceedings involving children also runs a risk that children are left in an inappropriate situation with their carers unable to obtain orders. This difficulty must be balanced against the factors weighing in favour of a stay. In children’s cases, this will often be a difficult balance and often result in a refusal of a stay, despite the real problems with the proceedings.
In this case the parties have open to them avenues to pursue with Victoria Legal Aid for the funding of an Independent Children’s Lawyer. In these circumstances it seems to me that it is not appropriate to formally stay the proceedings at this time, and I therefore will not issue such an order today. This is a question that may need to be considered if no funding is provided for an independent children’s lawyer.
In the circumstances, I propose to make orders in terms of the drafts proposed by the parties for the other interlocutory issues in the matter and to order that the parties each resubmit the order of the learned State Magistrate for the appointment of an Independent Children’s Lawyer to Victoria Legal Aid together with an appropriate application for aid, and pursue such processes as are reasonably available to obtain a grant of aid for an Independent Children’s Lawyer until:
a)an Independent Children’s Lawyer is appointed;
b)the Victoria Legal Aid review processes are exhausted; or
c)the parties are able to fund an Independent Children’s Lawyer of their own choice; or
d)further orders are made.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Acting Associate: Robin Smith
Date: 28 May 2008
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