NULTY & KENDRICKS
[2019] FCCA 2720
•3 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NULTY & KENDRICKS | [2019] FCCA 2720 |
| Catchwords: FAMILY LAW – Application to discharge appointment of Independent Children’s Lawyer – application to discharge or vary final parenting orders made by consent – Rice & Asplund threshold hearing – risk to child of exposure to further litigation – Costs. |
| Legislation: Family Law Act 1975 (Cth), ss.68L, 68LA, 117 |
| Cases cited: In the marriage of McEnearney (1980) FLC 90-866 |
| Applicant: | MS NULTY |
| Respondent: | MR KENDRICKS |
| File Number: | SYC 3474 of 2013 |
| Judgment of: | Judge M Neville |
| Hearing dates: | 15 May 2019 and 25 September 2019 |
| Date of Last Submission: | 25 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Independent Children's Lawyer: | Ms Weate of Jennifer Weate & Associates |
THE COURT ORDERS THAT:
The Applicant’s Initiating Application filed on 15 March 2019 be dismissed.
The Applicant’s Application in a Case filed on 18 July 2019 be dismissed.
The Applicant’s Application in a Case filed on 22 August 2019 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Nulty & Kendricks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3474 of 2013
| MS NULTY |
Applicant
And
| MR KENDRICKS |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings concerning X (“X”). X was born on … 2003 and is now aged 16 years.
X’s Mother is Ms Nulty. His Father is Mr Kendricks.
X’s interests in the proceedings are represented by an Independent Children’s Lawyer (“ICL”).
After many years of litigation in both the Children’s Court of New South Wales and in this court, final parenting orders were made by consent on 14 February 2017. Those orders provided for X to live with Father, to spend alternate Sundays with the Mother and for his parents to have “joint parental responsibility” for him.
By an Initiating Application filed 15 March 2019, the Mother now seeks to vary or discharge those orders. Her application has been expressed in a number of ways and in broad terms she seeks orders be made that:
a.She have sole parental responsibility for X;
b.X live with her;
c.X spend time with the Father each alternate Sunday;
d.In the alternative, that the parent with whom X lives have sole parental responsibility for him; and
e.That the Court determine where X ought live.
She also seeks a range of ancillary orders designed to support the parenting arrangements she proposes, as well as orders for financial disclosure, “cancellation of child support”, “cost and compensation” to be paid to her by both the Father and the Independent Children’s Lawyer and the discharge of the Independent Children’s Lawyer.
The matter was listed on 25 May 2019 for hearing on a Rice & Asplund threshold issue – that is, whether there has been a change in circumstances sufficient to warrant the Court hearing Ms Nulty’s application to revisit the parenting orders in relation to X.
Following the hearing, and before judgment was delivered on the Rice & Asplund issue, the Mother filed an Application in a Case on 18 July 2019 and a further Application in a Case on 22 August 2019. Those applications were returnable on 25 August 2019. Given that the relief sought in those applications was in similar terms to the relief sought in the Initiating Application the Court heard further submissions on those Applications in a Case and considered those submissions in determining the Rice & Asplund issue.
In addition to the above matters, on 25 August 2019, orders were made for the Mother’s Contravention Application filed on 5 October 2017 to be listed for final hearing on 7 February 2020 at 10.00am. The Independent Children's Lawyer was granted leave to be excused from the Contravention Hearing.
Background
X was born on … 2003 and is now aged 16 years. He has an older brother Mr D, who is now aged 18 years. The parties have been involved in litigation about their children for most of X’s life.
X was the subject of Children’s Court proceedings that commenced in June 2004. Final orders were made by the Children’s Court on 16 May 2005. The Mother filed an application in the Children’s Court to vary those orders on 10 August 2007 resulting in further orders being made on 14 January 2008. The Secretary of the Department of Family and Community Services appealed those orders to the District Court of New South Wales and the appeal proceedings concluded on or around 4 July 2008.
On 21 June 2013, the Mother commenced proceedings in this Court. That application – peppered with various interlocutory applications – culminated in final orders being made, by consent on 14 February 2017.
The final orders provided that the parties have equal shared parental responsibility for X (with a mechanism for consultation by the Father with the Mother), that he live with the Father and that he spend time with the Mother each alternate Sunday and have telephone communication with her each Tuesday, Thursday and Saturday.
Those are the orders the Mother now seeks to revisit.
The following matters seem uncontroversial:
a.The consent orders are not currently being implemented.
b.X is not spending time or communicating with the Mother as had been anticipated by the consent orders.
c.X is now at an age and stage of physical development where he cannot be “forced” to spend time with or communicate with the Mother if he does not want to.
d.The parents are not engaging in consultation about decisions made in the exercise of parental responsibility for X.
The Mother’s applications
As noted, in addition to the Initiating Application filed on 15 March 2019, the Mother has filed Applications in a Case. She also set out a minute of order sought in the case outline she prepared for the Rice & Asplund hearing.
The orders she seeks are difficult to ascertain with precision. For that reason, I consider it necessary to set out the orders sought in each application in their entirety.
In her Initiating Application filed 15 March 2019, and noting that C1 is a reference to the parties’ oldest child Mr D, who, having attained the age of 18 years is beyond the jurisdiction of the Court and that C2 is a reference to X, the Mother seeks:
(1)Protect the name of the children
(2)Variation of orders dated 14 February 2019 (sic) under section 64B 2(i) (sic), the father has failed his parental responsibility to care for the welfare and development of the children: refer to affidavit dated 8 March 2019
(3)Seek vary consent orders dated 14 February 2019 under section 64B 2(1) (sic), 4A: for the reason set out in my affidavit dated 8 March 2019.
(4)Full parental responsibility of C1 and C2 for the reasons set out in Affidavit dated 8 March 2019.
(5)C2 live with mother.
(6)Mother have full parental responsibility of C2.
(7)A warrant issued for the arrest of the father if he fails to relocate C2 into the mother’s care.
(8)Father to have contact every second weekend; 10:00am – 4pm and fail to return to mother a warrant to be issued.
(9)Father show financials statement
(10)Father show cost of children as children have not attended school, absent for long periods and C1 has worked without paying taxes in an apprenticeship for four years refer to affidavit dated 8 March 2019.
(11)Cancel child support till (sic) financials of father be established; income, property etc; refer to affidavit dated 8 March 2019.
(12)Cost and compensation.
(13)Independent Children’s Representative be discharged.
(14)Father be responsible for the daily care, welfare and development of the children when the children are in his care; this has not happened in the father’s care refer to affidavit 8 March 2019.
(15)C1 to live with who he feels comfortable with and C2 live with the mother until he turns 18 years of age.
(16)Mother take full responsibility of C1’s daily care, safety and wellbeing and development.
(17)The respondent father must not interfere in the daily routine of C2 living with the mother.
(18)The school contact mother, not father for C2 and provide all information, reports.
(19)Discharge independent Children’s Representative for reasons set out in Affidavit 8 March 2019.
In the Application in a Case filed 18 July 2019, the Mother seeks:
(1)Discharge 14 February 2017 final orders.
(2)Decide on varying 14 February 2017 final orders to sole parenting, with parent child lives with.
(3)Decide on child support matter.
(4)Decide on property matter.
(5)Discharge Independent Children’s Representative (ICL)
(6)Financial compensation to be paid by ICL.
(7)Cost to be paid by ICL.
(8)Financial compensation to be paid by respondent father.
(9)Cost to be paid by respondent father.
(10)Minimize length of litigation.
(11)Hearing date set for contravention orders.
(12)Cost to be paid for delaying justice.
In the Application in a Case filed 22 August 2019, the Mother seeks:
(1)Discharge 14 February 2017 final orders.
(2)Sole parenting responsibility.
(3)Discharge Independent Children’s Representative.
(4)Determine contravention.
(5)Cost and compensation.
In the case outline document she filed for the hearing on 25 May 2019, she proposed a minute of order in the following terms:
(1)Discharge final consent orders dated 14 February 2017.
(2)Sole parenting responsibility.
(3)The respondent father pay cost to the applicant mother.
(4)The respondent father pay compensation to the application mother.
(5)Discharge the Independent Children’s Representative.
(6)The Independent Children’s Representative pay cost to the applicant mother.
(7)The Independent Children’s Representative pay compensation to the applicant mother.
It appears that the relief sought by the Mother falls into the following categories:
a.Discharge of the appointment of the Independent Children’s Lawyer.
b.Discharge or variation of the final orders made 14 February 2017 and consequent upon that, orders pertaining to parental responsibility for X as well as orders in relation to where he should live and with whom he should spend time.
c.Orders requiring the Father to deliver X to the Mother, that a warrant issue for the Father’s arrest if he fails to do so and that he otherwise be restrained from interfering with the Mother’s parenting of him.
d.Orders requiring the school to communicate with the Mother to the exclusion of the Father.
e.The Father to provide accounts and financial information in relation to himself and the children.
f.Compensation to be paid by the Father and by the ICL.
g.Costs.
The parties’ positions
The Mother’s first stated position was to seek orders that, in broad terms, provide that X live with her, that she hold sole parental responsibility for him, and that he spend time with the Father in accordance with his wishes. As I understood her submissions, she appeared to have varied that at some point to seek orders that the parent with whom X lives should have sole parental responsibility. I did not understand her to abandon her application for X to live with her. I also understood that she considered the Court should conduct an inquiry into his living arrangements and make orders accordingly.
The Mother’s starting position is that the orders of 14 February 2017, made with the consent of each of the parents and the ICL, should not have been made because:
a.There was no evidence before the Court the parties had been able to agree on anything in the past.
b.The presiding judge failed to consider relevant legislative provisions.
c.There were contextual and factual inaccuracies and there was false information in the memoranda and reports of family consultant Ms A.
d.There were issues of family violence and neglect that were not considered prior to the making of final orders.
e.The ICL failed to act at all or otherwise did not act with independence in the proceedings.
She contends that the orders have since broken down and are not being implemented. She contends that she is not participating in exercising joint parental responsibility for X and X is not spending time or communicating with her in accordance with the orders.
The Mother contends that the Court should conduct a further hearing into X’s parenting arrangements because the Court should not allow orders to remain in existence in circumstances where they will be breached, and that further and lengthy litigation – whether by appeal or by contravention applications – will only continue if the orders remain in place.
She contends that the ICL should be discharged as she has failed to act in X’s best interests.
Insofar as she seeks orders for costs and compensation, she contends that she has experienced loss arising from the failure of the consent orders to secure time between herself and X and that she has experienced loss in having to attend Court and represent herself including lost wages.
For his part, the Father appears to agree that the current orders are not being implemented. He contends that at the time they were made, they were “perfect” and that they worked well for a while, but that they are now no longer possible to implement because X does not wish to spend time with the Mother as provided for by the orders.
He attributes X’s unwillingness to spend time with or communicate with the Mother to:
a.The Mother’s decision in the past to stop seeing the children;
b.The Mother’s actions towards X when they did see each other, particularly, having made promises to X that she has not kept, recording and filming conversations and interactions; and checking X for emphysema; and
c.X’s perception that the Mother favours or prefers Mr D.
The Father contends that X is now of an age and of such physical stature that he is unable to physically force him to spend time with his Mother.
As I understand the Father’s position, he agrees that the orders are no longer working but says that even if the Court were to grant all of the orders sought by the Mother, it would be impossible to encourage, direct or force X to live with the Mother. The process of undertaking a further hearing is, therefore, futile.
The ICL submits that the real question arising in this case is whether there is any utility in conducting a further hearing on parenting orders. She contends that there is not having regard to the following matters:
a.X has been the subject of robustly fought litigation for most of his life. He is “over it”.
b.The orders sought by the Mother, particularly that X live with her are unlikely to be made. X is a 16 year old young person who is currently expressing that he does not wish to live with, spend time with or communicate with the Mother. For most of his life, he has lived with his Father. Even orders were to be made in accordance with the Mother’s first application – that is, that X live with her – it is unlikely that they could be successfully implemented given the current state of the relationship between X and his mother and the fact that at 16 years of age he is more than capable of voting with his feet and placing himself back with his Father. The ICL shares the Father’s view that X’s age and stature mean that it would not be possible to encourage, direct or force X to live with the Mother – not that “forcing” a child or young person against their will is appropriate.
c.The principle in Rice & Asplund is specifically directed to ending litigation. Whilst ever there are orders in place – be they orders in their current form or orders in the terms sought by the Mother – there will be disputation and litigation.
Principles applicable to the matters before the Court
Parties, lawyers and judges can never predict with any degree of certainty, that the arrangements put in place by orders made today will meet the needs of the children and their parents in the future. Parenting orders are often made at a time when children – and their parents – still have a lot of living to do. As children get older and mature and develop, their needs, views and wishes may change. Parents too may make – or may wish to make – decisions that are not necessarily compatible with orders made or entered into at some point in the past. It is important, therefore, that parenting orders do not remain static and that they may be revisited by Courts at some future point.
Parenting orders are, however, also often made after robust and lengthy disputation between parents, with the conflict commencing well before they reach the doors of the court. Parental conflict takes its toll on all members of a family – the parents themselves and, most importantly, the children who are often caught in the middle of those parents. It important, therefore, that litigation is brought to an end.
Clearly, there is a tension between these positions. The principle in Rice & Asplund and the body of authority resting upon it, guides the Court in how to balance the various considerations and resolve that tension.
As oft cited, Evatt CJ in Rice & Asplund said:
(The Court) should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation…for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
In SPS & PLS, Warnick J, sitting as the Full Court of the Family Court of Australia explored the rationale behind the rule, observing (at [56]) that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
Citing Nygh J in In the Marriage of McEnearney, Warnick J also recognised that the finality of litigation was particularly desirable in family law:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respect may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
The principle in Rice & Asplund may be considered by the Court as a preliminary (or threshold) issue after an application is made to revisit final parenting orders but before a final hearing of the application is conducted; or it may be considered at the end of a final hearing: SPS& PLS at [48]. When determined as a preliminary or threshold issue the Court may, in the exercise of its discretion, dismiss the application if the applicant is unable to demonstrate a sufficient change in circumstances.
The Court must consider the child’s best interests as the paramount consideration even where the Rice & Asplund issue is determined at a preliminary stage. As Warnick J observed in SPS (and as was affirmed by the Full Court of the Family Court of Australia in Marsden & Winch at [47]):
[81]…when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason…but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will be or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue. (Emphasis added)
In Marsden & Winch, the Full Court provided further guidance in determining whether best interests of the child outweigh the need to revisit orders. The Full Court said at [50]:
…Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child is a decision to be made in each particular care. How is that decision to be made? The Court must look at:
a. The past circumstances, including the reasons for the decision and the evidence upon which it was based.
b. Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
c. If there is such a likelihood, the nature of the likely changes must be weighed against eh potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Insofar as an application is brought to discharge the ICL, the role of the ICL is set out at s 68LA of the Act. It provides as follows:
(1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children's lawyer
(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.
(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.
(4) 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
(5) 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.
Disclosure of information
(6) Subject to subsection (7), the independent children's lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children's lawyer.
(7) The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
(Emphasis added)
It is not in dispute that the Court has the power to remove an ICL: W and M and W [2006] FamCA 512 at [33], citing Lloyd and Child Representative (2000) FLC 93-045; Re K (1994) FLC 92-461; and T and L (2000) FLC 93-056.
An application to discharge an ICL is not to be entertained lightly. Any power to remove an ICL must be exercised in accordance with the proper appreciation of the role of the child representative and, of course, the evidence: W and M and W at [33].
As the Full Court in W and M and W (Bryson CJ, Warnick and May JJ) observed (at [34]): While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant’s position or, from that litigant’s point of view, contrary to the child’s best interests.
The Evidence
Material relied on by the parties
In support of her application, the Mother relied upon the following material:
a.Case Outline document filed 9 May 2019.
b.Initiating application filed 15 March 2019.
c.Her affidavits of 5 October 2018, 8 March 2019, 22 August 2019;
d.Family Reports of 19 October 2015 and 18 January 2019;
e.Child Inclusive Conference memoranda of 28 August 2014; 4 August 2016; 4 October 2016; 20 February 2018.
f.Amended Child Inclusive Conference memorandum of 9 September 2014.
g.Contravention application of 5 October 2017.
h.Application in a case filed 18 July 2019.
i.Further application in a case filed 22 August 2019.
The Father did not file or rely upon any material in the proceedings.
The Independent Children’s Lawyer relied on the following:
a.Family Reports of 19 October 2015 and 18 January 2019;
b.Child Inclusive Conference Memoranda of 24 August 2014, 4 August 2016 and 20 February 2018.
c.Final orders made on 14 February 2017.
Each of the parents appeared self-represented in the proceedings. Given the difficulties that may be experienced by self-represented litigants preparing evidence in support of their own applications, in the course of hearing submissions, I gave each of the parents some latitude to stray beyond the evidence filed so I could gain an accurate picture of what each says is happening for X and what each hopes to achieve for X into the future.
The application to discharge the Independent Children's Lawyer
The Mother contends that the Court should discharge the appointment of the ICL on the basis that she has failed to act in X’s best interests. Given that the ICL made submissions in relation to the Rice & Asplund issue, it is appropriate to first consider the application to discharge the ICL in these reasons.
As noted above, the Mother’s application is based on 3 grounds:
a.Failure to issue subpoenas in accordance with the recommendations of the family consultant;
b.Giving consent to the final orders in circumstances where the ICL was aware there were issues of family violence and poor school attendance; and
c.By failing to initiate and facilitate X’s attendance for counselling, including through Headspace.
Turning to each in turn.
Failure to issue subpoena
In relation to the Mother’s contention that the ICL failed to issue subpoenas, particularly to the Police and to the children’s schools, a review of the Court file indicates that on 1 October 2014, subpoenas for production were issued at the request of the ICL to NSW Police, the Department of Family and Community Services (as it was then known) and Medicare Australia. This appears to me to be consistent with the recommendations of the Family Consultant expressed in the CIC Memorandum dated 28 August 2014.
On 20 June 2018, a subpoena for production was issued at the request of the ICL to Suburb B High School and on 9 October 2018, a further subpoena was issued at the request of the ICL to School C. A review of the CIC Memorandum prepared on 20 February 2018 does not disclose a recommendation that X’s school records be subpoenaed, however, it does disclose the information available to the family consultant that X left School C at the end of 2017 and commenced Year 9 at Suburb B High School. Additionally, Judge Harper (as he then was) noted on 19 June 2018 when the matter was before him, that between 19 June 2018 and the adjourned date (being 24 September 2018) the ICL would, inter alia, issue subpoenas and it would appear that the subpoena issued to Suburb B High School was in accordance with that notation.
Accordingly, it would appear that the ICL not only responded to the recommendation to cause subpoenas to issue to NSW Police and the Department of Family and Community Services, but appropriately sought X’s high school records for both of the schools he attended as per the notation made by Judge Harper on 19 June 2018.
Insofar as a Family Report was prepared on 18 January 2019, there is no recommendation in that family report for any subpoenas to issue.
I consider that the Mother’s contention that the ICL failed to issue subpoenas is not made out.
Giving consent to the orders of 14 February 2017
The Mother contends that the ICL failed to act in X’s best interests by providing consent to the final orders in circumstances where there were contentions as to family violence and contentions that X was not attending school.
The provisions of s 68LA require an ICL to, amongst other matters, endeavour to minimise the trauma to the child associated with the proceedings; and 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.
This is a very complex case with a number of competing considerations. As already discussed, at the time of the final orders, the parties had been engaged in extensive litigation over a period of years. The various memoranda and reports prepared by the Family Consultant had indicated that the litigation itself was having an adverse impact on both children. As I apprehend matters, the ICL was required to balance the competing contentions in relation to risk to X (and, at that time, Mr D) which included not only contentions as to family violence and school attendance, but the risk associated with prolonging of the litigation.
In circumstances where the Mother – legally represented at the time – and the Father each agreed to the final orders, I can only conclude that each of X’s parents considered those final orders to be in his best interests. It is therefore difficult to understand why the ICL is to be criticised for giving her consent to those same orders.
When this was explored with the Mother during the course of submissions, she seemed to consider that the ICL should have disregarded the consent position of each of the parents, declined to give consent to the orders and pressed the Court to conduct a contested hearing. This seems to me to misapprehend the role of the ICL in the present case. As noted, one of the risks identified for the children was the risk of parental conflict, expressed in part, through the ongoing litigation. The making of final orders, by consent, in terms I infer were considered by the parents to be in X’s best interests seems to me to have been open to the ICL in all of the circumstances, and I do not consider that her conduct in having done so warrants any criticism let alone the discharge of her appointment.
Failure to initiate and facilitate counselling
The Mother contends that the ICL has failed to act in X’s best interests by failing to initiate and facilitate X’s attendance on counselling, specifically through the organisation Headspace.
This appears to my mind to misapprehend the role of the ICL. Section 68L of the Act provides that the Court may appoint an Independent Children’s Lawyer to represent the interests of the children in proceedings in which the child’s best interests are, or a child’s welfare is the paramount or a relevant consideration.
The terms of s 68L are clear – the appointment is confined to representation of the child’s interests in the proceedings. Within the terms of that appointment, the role of the ICL is as set out at s 68LA.
The scope of the role does not extend to the initiation or facilitation of counselling for the child whose interests the ICL represents. Such action falls outside the scope of representation of a child’s best interests in the proceedings (adopting the language used at s 68L(2)) and falls outside the scope of acting “in relation to the proceedings” (adopting the language used at s 68LA(2)(b)).
A child’s attendance at counselling is a matter that would usually be left to parents in the course of raising their children either with, or without, a court order requiring it to occur.
I do not consider that the ICL has failed to act in the best interests of X by not initiating or facilitating his attendance for counselling as such action falls beyond the scope of her appointment or her role.
Conclusion in relation to the application to discharge the ICL
I do not consider that the Mother’s contentions that the ICL has failed to act at all or to otherwise have acted in X’s best interests have been made out in the present case. Accordingly, the application to discharge the ICL is dismissed and I will have regard to the submissions made by the ICL in relation to determination of the Rice & Asplund threshold issue before the Court.
The Rice & Asplund threshold issue
Turning then to consideration of the Rice & Asplund threshold issue.
The circumstances at the time of the making of the final orders
The evidence reveals that the final parenting orders were made by consent on 14 February 2017. Ms Nulty was represented by a lawyer in those proceedings. The Father was self-represented. X’s interests were represented by the ICL. Given that orders were made by consent, the parties’ contentions were not tested by cross-examination and Judge Sexton (before whom the matter was listed) did not make findings or deliver a judgment in the matter.
In trying to ascertain the circumstances at the time the final orders were made, the best available source of evidence on the present application are the various memoranda and reports of the family consultant.
Prior to the making of the final orders, the parties and X attended upon the family consultant on 3 occasions and Mr D had, apparently, attended alone on a fourth occasion.
The first attendance on the family consultant was at a Child Inclusive Conference on 28 August 2014. Relevantly, the family consultant records that at that time:
a.The parties agreed that the children should live with the Father.
b.The parties were in dispute about parental responsibility, the time the children should spend with the Mother and the children’s views.
c.Risk factors were identified as: parental mental health, family violence, the Father’s physical health, allegations made by the Mother of historic drug use by the Father.
d.Each of the children was adamant that they did not want to stay overnight at the Mother’s home.
The parties next attended on the family consultant for Family Report interviews. The Family Report was prepared on 19 October 2015. In that report, the Family Consultant identified, relevantly, that:
a.The children lived with the Father and spent no time with the Mother.
b.The Mother was seeking orders for equal shared parental responsibility, that the children live with the Father and spend time with her initially each Sunday, graduating to overnight time and time on special occasions and during school holiday periods.
c.The Mother considered that there had never been appropriate gravitas placed on the violence the Father perpetrated upon her.
d.The Mother contended that her mental health had been misdiagnosed in 1995.
e.The Mother corrected various factual inaccuracies in records relied upon in Children’s Court proceedings.
f.The Mother wanted to be able to co-parent the children, to communicate concerns with the Father and was willing to attend counselling to achieve this.
g.X seemed unsure about spending time with the Mother, he recounted 2 experiences of the Mother that caused him discomfort. He informed the consultant that he was not comfortable spending time with the Mother without his Father present.
h.The consultant considered:
i)The Mother would not cooperate with a regime of supervised time and there was no family member or friend to provide that role and so an order for supervised time was unrealistic.
ii)That the parents had no recent experience of co-parenting and there was little prospect of this emerging in the future. She considered it was most practicable for the Father to hold sole parental responsibility.
i.The consultant recommended:
i)The Father have parental responsibility for the children.
ii)The children live with the Father.
iii)The family be referred to family therapy with a view to the children having further input into the time they spend with the Mother.
Following the family consultant’s report, the parties attended a further Child Inclusive Conference on 4 August 2016. The memorandum of that conference records:
a.The parents appeared to be in agreement about X spending time with the Mother every 2 or 3 Sundays for a couple of hours.
b.Whilst the co-parenting arrangement remained extremely poor, and the parents remained in conflict about most aspects of the parenting dispute, they had become able to telephone and text each other to communicate about arrangements from time to time.
c.X had expressed the view that the Mother favours Mr D.
d.The consultant considered there may be merit in a court ordered referral to family therapy.
On 4 October 2016, Mr D attended upon the consultant alone. A range of issues were discussed. Significantly, Mr D reported frustration and dislike about attending Court. At that time, he wished to change his name.
I have recorded the above matters because they reflect the best source of information available to the Court on this application, as to the circumstances at the time the consent orders were made and clearly, those issues were:
a.A poor co-parenting relationship, although with some sign of improvement in 2016 when the consultant observed the parents were able to communicate about arrangements, but otherwise little prospect of the parents being able to implement equal shared parental responsibility.
b.Family Violence.
c.The children’s reluctance to spend time with or communicate with the Mother and the unrealistic nature of any supervised time arrangement.
At the time the consent orders were made, the parents were in dispute about parental responsibility and the time the children should spend with the Mother. The Mother – with the benefit of legal representation – the Father and the Independent Children’s Lawyer reached agreement on all of those issues and that agreement was reflected in the consent orders.
Events in the lives of the children and the parties since the making of final orders
Further attendances on the family consultant
On 5 October 2017, the Mother filed a contravention application. Since then, the parties have attended a further Child Inclusive Conference on 20 February 2018 and interviews for the preparation of a further Family Report.
Since 2013, X has attended on a family consultant 5 times – almost, but not quite, on an annual basis.
Family Violence
During the child inclusive conference held on 20 February 2018, each of the parents alleged that there was ongoing verbal abuse in their relationship, although there is no evidence that there has been any further police involvement arising from interactions between the parents.
The evidence clearly demonstrates that the Mother continues to be concerned that the Father has minimised or denied the violence she says he perpetrated and that he takes no responsibility for it. It remains her view that the issue was not properly or fully explored when the matter was before Judge Sexton for the making of the final consent orders. During the course of submissions, the Mother submitted that she was entitled to have had a hearing in relation to that issue, although she was unable to explain why she did not avail herself of that opportunity prior to the making of the final orders.
Each of the parties also informed the Family Consultant that in late 2017, an AVO had been made against Mr D for the protection of the Father. The Father told the Consultant that he and Mr D would get into arguments and that it would sometimes escalate to mutual pushing and shoving. When the Father saw the Family Consultant in November 2018 for the preparation of the January 2019 report, he told her that things with Mr D had calmed down since the Child Inclusive Conference, especially since Mr D started seeing his girlfriend.
Concerns about child wellbeing and child abuse
The Mother informed the Family Consultant during the Child Inclusive Conference and the Family Report interviews conducted after the final orders were made, that X was being physically and emotionally abused by the Father and that the Father neglected X. She cited concerns that X is overweight and is not attending school regularly and is performing poorly when he does.
Difficulties implementing the final orders
The Mother’s affidavits and her contravention application filed 5 October 2017 indicate that the Mother contends that the Father has contravened the final orders by failing to make X available for time and communication with her. She contends that the Father has not been responsible for X’s daily care, welfare and development. She contends, although without particularity, that the Father is not keeping her informed of decisions that need to be taken in the exercise of parental responsibility and that they are not jointly exercising parental responsibility.
X’s views and wishes
Since the making of the final orders, X’s views and wishes were further canvassed by the Family Consultant during the Child Inclusive Conference and during the Family Report interviews.
During the Child Inclusive Conference, he is reported to have told the Family Consultant that he finds it difficult to explain why he does not wish to see his Mother or to respond to her calls and texts. He acknowledged that the Mother sends him numerous and lengthy messages which make him feel uncomfortable. He is reported to have said that he still feels as though his Mother favours his older brother.
Notwithstanding his comments, he interacted briefly with his Mother and they were observed to hug warmly and he was responsive to suggestions from the Mother and the Family Consultant.
At the Family Report interviews, X is reported to have said that he does not want to talk to his Mother and that he does not want her to have his number, apparently due to the number of messages she sends him.
X was reported to seem down about school, foreshadowing that he is likely going to drop out of school if he can get an apprenticeship, however, he seemed uninspired by any of the options suggested to him so far.
Sadly, X was described as “seeming somewhat defeated about his circumstances”.
Again, notwithstanding his comments during the Family Report interviews, he expressed a willingness to say hello to his Mother on the day of the interviews, however, the Family Consultant ultimately determined that the meeting should not occur.
The Mother is reported to have informed the Family Consultant that X’s views are influenced by the Father and he lies to avoid his Father getting into trouble.
Discussion
The following questions arise for consideration:
a.What were the circumstances in place at the time the final orders were entered?
b.Has there been a change of circumstances that would warrant the Court embarking on a hearing in relation to parenting arrangements?
c.What is the nature of the variation sought by the Mother – are the orders she seeks likely to be made and, even if they are made, are they likely to be successfully implemented?
d.If the Court were to revisit the consent orders of 14 February 2017, what is the likely impact of that litigation on X?
The circumstances at the time of the making of the orders
At the time the final orders were made, X had lived for most of his life with his Father, and was irregular in spending time with and communicating with the Mother. The issues of family violence, poor co-parenting relationship, ongoing litigation and parental conflict all loomed large.
The Mother now says that family violence and neglect issues were not considered prior to the making of the final orders. It is, however, difficult to accept this having regard to the Child Inclusive Conference memoranda and a Family Report which canvassed those issues extensively.
The parents had been involved in litigation since 2004 with only a brief period of respite during the period July 2008 until 21 June 2013 when the Mother filed an initiating application.
Between 21 June 2013 and 27 February 2014, X attended upon the family consultant 3 times.
The final orders were made with the consent of each party and the Independent Children’s Lawyer. For her part, the Mother had the benefit of legal representation and to the extent that she now contends that the final orders do not – and did not – meet X’s best interests, she provided no evidence or reason as to why she gave her consent to those orders.
Has there been a change in circumstances that would warrant the Court embarking on a hearing in relation to the parenting issues?
Sadly, X now appears to be even more resistant to spending time with or communicating with the Mother. The Father says he cannot force X to get into the car. X’s age and his physical size make it impossible to compel him to see her or talk with her if he does not wish to do so. Additionally, he now appears to be loyal to the Father so that he is unlikely to acquiesce to orders that he live with the Mother and it seems that she would have difficulties enforcing any orders to that effect, other than by recourse to the Court. The Family Consultant foreshadows the potential for police or the Children’s Court to become involved if X’s response to such orders was to vote with his feet and return to his Father’s care.
It appears that there has been family violence between the Father and Mr D since the final orders were made, although there was no evidence concerning the AVO between them other than the matters reported to the Family Consultant. X appears to have been exposed to that family violence, having reported at the Child Inclusive Conference he has overheard arguments between Mr D and the Father, and that the police were called after a big argument.
The Father informed the Family Consultant that the conflict between he and Mr D has settled down now, especially since Mr D started a relationship.
Clearly, X’s wellbeing has suffered since the making of the final orders. He is now apparently disengaged from school, contemplating dropping out and uninspired about his future options. This is a tragedy as his Mother contends he was a bright boy.
The cause of these difficulties is not simply that the Father has not adequately attended to his educational wellbeing. Whilst the Family Consultant certainly identifies this as a potential contributor to X’s difficulties, it is clear from paragraph [56] of her Family Report of January 2019 that she also considers that periodic exposure to family violence, estrangement from the Mother, involvement in high parental conflict and parental dysfunction likely all played a part in where he finds himself today. This is, in my view, a tragedy.
The Mother offers no concrete proposal as to how she will get X to live with her, let alone how she will re-engage this 16 year old young person with education. Even if the Court were to consider that potential educational neglect was a sufficient reason to revisit the orders, the lack of a clear pathway from her means I am unable to conclude that this issue is going to be addressed by X going to live with her.
The parents have remained in conflict since the making of the final orders and X continues to be exposed to this conflict. The poor co-parenting relationship between the parties continues. The Mother contends that she is not at all involved in decision making for X and that the orders currently in place do not reflect what is, in reality, occurring. This seems, however, to have been the case throughout the life of the litigation. X is now 16 years old. As the Family Consultant observes in her report of 18 January 2019, he is now at an age where society allows him to have input into many decisions about himself. He is struggling with his education and it appears that he may choose to leave school and engage in a trade later this year. There was no evidence adduced by any party as to how such a decision would be made and what input – if any – would be required from the parents on this issue. There was no evidence that there are any other life circumstances for X that would require the parents to exercise parental responsibility in the less than 2 years until he attains the age of 18 years, when he will assume legal capacity to take all decisions on his own behalf.
Other than the issue of X leaving school to pursue a trade, there was no evidence of any other issue on the horizon that would require the parents to exercise equal shared parental responsibility.
Accordingly whilst the order for equal shared parental responsibility is not being implemented, it would appear that there are few if any occasions which would require it to be exercised.
What is the nature of the variation sought by the Mother – are the orders she seeks likely to be made, and even if they were, are they likely to be successfully implemented?
The Mother contends for orders that X live with her, that she hold sole parental responsibility for him. During the course of submissions, she appeared to accept, at one point, that it was unlikely that X would comply with an order that he live with her. At that point, she contended that if X were to continue to live with the Father, then the Father should have sole parental responsibility for him and that the Court should conduct a hearing on this issue. She submitted that if the order for equal shared parental responsibility remains in place, and if she and the Father are not, in fact, exercising parental responsibility equally as required by the order, further litigation will ensue by way of contravention applications.
During the course of submissions, the possibility of making a parenting plan to that effect was explored with the Mother as was the fact that she could choose not to file contravention applications. She was resistant to either possibility.
Further, during the course of the submissions, she did not seek to amend her application nor did she indicate with conviction that she would abandon her application for orders that X live with her. I consider it unlikely that she would, in fact, do so. When she attended on the Family Consultant earlier this year, she reported that her application was for X to live with her and spend time with the Father in accordance with his wishes. The family consultant described the Mother at that time, as being “firmly convinced” that X should be moved to her care against his wishes.
Insofar as the Mother does seek orders that X live with her, it appears that there are poor prospects of such an application succeeding. X has lived with his Father for most of his life. He is currently not in regular communication with the Mother and does not wish to spend time with her. Whilst the Mother indicated in the course of submissions that if X moved into her primary care he would adjust quickly, this appears unlikely having regard to his age, his resistance to spending time with the Mother, what the family consultant described as his firm loyalty to his father and his current vulnerabilities.
Even if I am wrong about this, however, there is nothing in the evidence and nothing raised in submissions by any party that could provide any confidence that if such an order were to be made, X would comply with it. The Family Consultant, in her report of 18 January 2019 foreshadows that if such an order were made, it is likely to bring with it more, rather than less, litigation as well as, potentially, involvement by NSW Police or by the NSW Children’s Court.
If the Court were to revisit the consent orders of 14 February 2017, what is the likely impact of that litigation on X?
X will attain 18 years on … 2021. There are just 19 months remaining until he becomes legally capable of taking decisions for himself as an adult.
Re-opening the proceedings will likely see him spend the last 19 months of his teenage years at the centre of legal proceedings between his parents. This would be in circumstances where he has been at the centre of legal proceedings between his parents for most of his life.
As I understand the Mother’s position, she contends that X has been negatively influenced against her by the Father and that his true wishes have not been expressed. Given she appears to want to pursue orders that X live with her, a contested family law hearing would potentially give rise to further expert assessment and interviews of X and a need for X to further engage with the Independent Children’s Lawyer. It is unlikely that he could be shielded from being directly involved in the proceedings.
X is currently a vulnerable young person. As the Family Consultant observed, he is unhappy at school and has apparently disengaged from education, he is uninspired by his future work options, he seems resigned to his circumstances. He is reportedly self-conscious about his weight and appearance, and feels pressured by what he perceives to be the intensity of the Mother’s communication with him. He apparently feels as though the Mother favours his brother. He is clearly aware of the conflict between the parents.
I can only see that his involvement in and exposure to further family law proceedings will exacerbate his considerable vulnerability and place him at risk of further harm.
If his current vulnerability could be ameliorated by the discharge of the consent orders and the making of “fresh” orders as to parental responsibility or where he should live, then the risks associated with further proceedings might well be outweighed by the benefits of potentially changed circumstances. Unfortunately, however, I do not see such an outcome as being likely or even possible.
Even if the Mother succeeds on her application for orders that X live with her, the evidence suggests this will, in fact, exacerbate the risk to him. He is unlikely to go to her care willingly and may well vote with his feet and return to his Father, raising the prospect of further family law litigation and police or child protection authority intervention.
The risk of exposure to or involvement in further parenting proceedings is an unacceptable one.
Conclusion on the Rice & Asplund threshold issue
Having regard to the evidence in the matter, and to the principles relevant to my determination, and notwithstanding that the orders of 14 February 2017 are not perfect, I consider that the risk to X being exposed to further parenting proceedings outweighs the benefit to him in revisiting those orders and the orders sought by the Mother for the discharge of the final consent orders ought be dismissed.
The balance of the orders sought by the Mother
As noted earlier in these reasons, in addition to the orders seeking to discharge or vary the consent orders and any parenting orders that may then flow, the Mother seeks orders falling into the following categories:
a.Orders requiring the Father to deliver X to the Mother, that a warrant issue for the Father’s arrest if he fails to do so and that he otherwise be restrained from interfering with the Mother’s parenting of him.
b.Orders requiring the school to communicate with the Mother to the exclusion of the Father.
c.The Father to provide accounts and financial information in relation to himself and the children.
d.Compensation to be paid by the Father and by the ICL.
e.Costs.
In relation to the application for the Father to deliver X to the Mother, for a warrant to issue in default thereof and that he be restrained from interfering with the Mother’s parenting of X, as well as the application requiring the school to communicate with the Mother to the exclusion of the Father, these issues could only warrant consideration in the event that I was satisfied that the application for parenting orders ought proceed. Having regard to my conclusion on the Rice & Asplund threshold issue, I consider that the application for those orders should be dismissed.
Insofar as the Mother seeks orders that the Father provide accounts and financial information in relation to himself and the children, she has not identified the source of power upon which she relies for the making of such orders in parenting proceedings. I note that the Mother has made an application in separate proceedings in which she seeks a orders for the cessation of payment of child support and that the Initiating Application filed in that matter pleads orders for accounts and financial information to be provided by the Father in terms not dissimilar to the present case. I therefore consider that her applications for orders for accounts and financial information in this application should be dismissed as it will be pursued in the child support proceedings.
Insofar as the Mother seeks compensatory orders against the Father and the ICL, she was unable to identify a source of power by which such orders may be made. I consider that this aspect of her applications ought be dismissed.
Accordingly, I dismiss the Initiating Application filed by the Mother on 15 March 2019, the Application in a Case filed 18 July 2019 and the Further Application in a Case filed 22 August 2019.
Costs
In her Initiating Application, the Application in a Case filed 18 July 2019 and the Further Application in a Case filed 22 August 2019, the Mother seeks costs against the Father and the ICL.
The power to make orders for costs is found at s 117 of the Family Law Act.
Section 117(1) provides (relevantly) that subject to subsection (2) each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) provides that the court may make such order for costs as the court considers just. In considering what order – if any – should be made the court shall have regard to the matters set out at s 117(2A).
I do not consider that it is just to make an order for costs in the present matter.
I have no up to date financial information from either party, but I observe that the Father currently has X living with him and he is providing accommodation for X. X is not presently working. In the event that any order for costs was made, I consider that it has the potential to impact adversely upon X.
Each of the parents was self-represented in the proceedings and neither was in receipt of a grant of legal aid. The ICL is funded by Legal Aid NSW to carry out her role.
I make no criticism of any of the parties in relation to the conduct of the proceedings. The Father chose not to file any evidence. This is his right. As noted, each of the parents was self-represented in the proceedings and this is a significant challenge for any person. The Mother has filed a number of applications each seeking similar relief, although that did not, in my view, significantly prolong or alter the course of the proceedings.
The Mother contends that the proceedings were necessitated by the Father’s failure to comply with the final orders. Insofar as she raises this criticism, I note that X is a 16 year old young person who has been resistant to the parenting arrangements agreed to by his parents under the final orders and that it appeared agreed between the parties that he is currently at an age and stage of development where it is not possible to force his compliance.
The Mother has been wholly unsuccessful in the applications she has brought.
This is not a matter where consideration of any offer to settle the proceedings is relevant.
I do not consider it just to make an order for costs against the Father.
Furthermore, the ICL has, in my view, appropriately discharged her duties under the terms of her appointment and I can see no basis for making a costs order against her.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Date: 3 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Jurisdiction
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Procedural Fairness