Norfolk and Mervin (No 2)

In the Family Court of Australia, Ms Norfolk (the applicant) and Mr Mervin (the respondent) were involved in proceedings concerning their children. Mr Carter acted as the Independent Children’s Lawyer. The matter had a complex history, including allegations of sexual impropriety and the involvement of multiple expert reports. One of the children, C, has Down Syndrome and other special needs.

The primary legal issue before the court was whether to permit further investigations or reports concerning the children, specifically in light of the respondent father's oral application to prevent any further such processes. This application was opposed by the Independent Children’s Lawyer, who sought to obtain an expert opinion as foreshadowed in a family consultant's report. The court was required to balance the need for information to resolve serious allegations with the potential harm to the children from repeated investigations, a concept referred to as "systems abuse."

Justice Murphy dismissed the respondent's oral application, reasoning that while "systems abuse" is a serious concern and the court must strive to bring disputes to an end, it also has an obligation to gather necessary information, particularly expert evidence, to address serious allegations. The court noted that the Independent Children’s Lawyer, as an officer of the court, is bound by the principles in section 69ZN of the *Family Law Act 1975* (Cth), including the need to consider the impact of proceedings on the child. The judge was persuaded that allowing the Independent Children’s Lawyer to obtain a further expert report was necessary, trusting that the expert would conduct the investigation sensitively, particularly given the child's special needs. The court also considered that the mother's belief system, which could be informed by such a report, was relevant to the proceedings.

The court ordered that the oral application by the respondent that no further investigations or reports should take place with respect to the children be dismissed. The matter was adjourned for directions to progress the case to a final hearing, which was to be conducted by telephone unless otherwise ordered. A separate application filed by the mother was listed for hearing.