O’LOUGHLIN & O’LOUGHLIN

[2014] FamCA 698

FAMILY COURT OF AUSTRALIA

O’LOUGHLIN & O’LOUGHLIN [2014] FamCA 698

FAMILY LAW – CHILDREN – With whom a child lives – Orders – Contravention – Best Interests of the child – Where matter involved long, highly conflictual history of dispute and/or litigation between the parties – Where there was a 65L supervisor was in place to supervise and/assist with compliance of previous orders – Where supervisor recommended directed or otherwise intimated that the father’s time with the child be suspended, thereafter which the child has neither spent time nor communicated with the father – Where child has on several occasions made articulations of suicidal ideation – Where supervisor recommends the child have a psychiatric assessment - Where parties agreed present application filed by the father is in respect of three contraventions – Where mother seeks variation of the current parenting orders pursuant to section 70NBA irrespective of whether or not the contraventions are established – Where court noted there was doubt as to whether section 70NBA would permit such a wholesome reworking of orders however such was not presently in need of resolution – Where in the interests of justice the court appointed an ICL noting that such was unusual in contravention proceedings however is necessary in the circumstances – Where court noted as a matter of great concern any litigation between the parties have a bare minimum impact upon the child and as such directed that any contact between the ICL and the child not take place without the leave of the court – Where contravention proceedings adjourned to a date after the appointment of the ICL.

Family Law Act 1975 (Cth) s 65L, 68L, 70NBA

APPLICANT: Ms O’Loughlin

RESPONDENT: Mr O’Loughlin

FILE NUMBER: CSC 696 of 2009

DATE DELIVERED: 14 August 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 14 August 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. Pursuant to s 68L(2) of the Act, the interests of the child B born … 2003, be independently represented by a lawyer, and it is requested that Legal Aid Queensland make arrangements on an URGENT basis to secure that independent representation of the child's interests.

1. Forthwith upon appointment by the said Legal Aid Queensland or otherwise, the Independent Children’s Lawyer is to:

(a)file a Notice of Address for Service;

(b)make contact with the Associate to the Honourable Justice Tree to discuss a suitable listing date and time for further urgent mention of this matter.

1. Upon the filing of a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

1. The Independent Children's Lawyer is not to contact the child B without first having leave of the Court.

1. The parents are not to disclose to the child B any information about the appointment of the Independent Children's Lawyer.

1. The further hearing of the father’s contravention applications be adjourned to a date and time to be advised by the Registry after the appointment of the Independent Children's Lawyer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O'Loughlin & O'Loughlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 96 of 2009

MS O’LOUGHLIN

Applicant

And

MR O’LOUGHLIN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These are my reasons for the appointment of an Independent Children's Lawyer pursuant to section 68L of the Act.

2. This matter has a long, highly conflictual and most unfortunate history.  For virtually all of her life, the parties have either been locked in furious dispute, or litigating, or both, in relation to the child the subject of these proceedings, the child B.

3. They have had many hearings and at least two trials.  However, the conflict has not abated.  The parties first were before me last year, during which one, or both, of them were seeking, yet again, to litigate and have a further trial in relation to appropriate parenting orders for the child.  Amongst the suite of matters that were argued was the Rice & Asplund question, namely, whether there had been a sufficient change in circumstances since the last set of final orders were made so as to justify, yet again, re-litigation in relation to the child.  That hearing was unable to be concluded in the time allocated to it, and has not thereafter resumed, it would seem, largely because circumstances overtook.

4. Earlier this year, whether wrongly or rightly I do not presently stay to investigate, the mother kept the child in her care, and from school, for some months. Unsurprisingly, the father sought orders arising from that retention when the matter came before me earlier this year. Ultimately, the necessity for that order was outflanked by the parties’ agreement reflected in the order which I made on 30 May 2014 which, amongst other things, appointed a family consultant, pursuant to section 65L, to supervise and/or assist compliance with the last set of final orders, those being of then Coker FM made 25 October 2011. With the assistance of the section 65L supervisor the parties moved to, and ultimately did recommence, the arrangements pursuant to the orders of Judge Coker such that on 11 July 2014 the child commenced the week-about arrangements that had previously been in existence pursuant to Judge Coker’s orders.

5. However, that was short lived, and on the child’s 11^th birthday further events occurred in consequence of which, wrongly or rightly I make no comment, the s65L supervisor recommended, directed or otherwise intimated, that the father’s time with the child should be forthwith suspended, thereafter which the child has neither spent time nor communicated with the father. This morning I released to the parties the memorandum of Ms C dated 1 August 2014 arising from her 65L supervision. The contents of that may be controversial; that remains to be seen. However, what does not appear controversial are the utterances which have been made from time to time by the child to either Ms C, another counsellor or another family consultant employed by the Court.

6. Particularly, on 21 June 2014 she advised Ms C that she would commit suicide if she was made to go alone to her father’s home.  That utterance was made on 21 June 2014.  Then on 24 June 2014 the child reported to a family consultant of the Court that she felt like killing herself.  Next, on 2 July 2014, to a counsellor employed by Relationships Australia she is reported as again having expressed suicidal ideation.  Most recently, on 31 July 2014, the child reported to a family consultant employed by the Court that she had had suicidal thoughts two nights in a row that week. 

7. Ms C recommends in her report of 1 August that:

   Due to the serious concerns about [the child’s] mental health it would be a useful starting point for her to have a psychiatric assessment regarding her current mental health status and any recommendations for managing it.

8. When the matter came on before me this morning I enquired of the parties what applications were before me and what orders would be sought.  Ultimately, the parties agreed that the applications before me were three contravention applications by the father having been filed on 5 July 2013, 3 March 2014 and 8 July 2014.  Initially, upon enquiry the father identified that the orders that he would seek consequent upon the determination of the contraventions were for a substantial change to the existing parenting orders, including that he have sole parental responsibility, that the child live with him and spend only supervised time with the mother.  Ultimately, in the light of Ms C’s report, or at least after having had the opportunity of reading it, he told me that the orders he would be seeking would be for parental responsibility in relation to the child to vest with him or at least in relation to medical issues, but that otherwise Judge Coker’s orders continue.

9. However, the mother’s position was at the outset, and remains, that irrespective of whether or not the contraventions are established, she will be seeking a variation of the current parenting orders pursuant to section 70NBA such that the child would live with her, and that she have sole parental responsibility for her. No doubt there will be other orders sought by her as well. Whilst I express real doubt as to whether, either as a matter of law or as a matter of discretion, section 70NBA would permit such a wholesale reworking of orders as sought by the mother in the context of the contraventions alleged by the father, that is a matter that I do not presently need to resolve.

10. However, obviously in determining whether or not to make any such orders the child’s best interests would be the paramount consideration, and there will inevitably be real issues which would need to be investigated and resolved in determining where the child’s best interests lie in the context of the present circumstances and the mother’s proposed orders.  Given the invaluable assistance which courts expect, and routinely obtain, from Independent Children’s Lawyers, it seems to me that it is in the interests of justice for an Independent Children’s Lawyer to be appointed, albeit unusually, in the context of contravention proceedings.  I accept that ordinarily an Independent Children’s Lawyer would not be involved in contravention proceedings and, indeed, may have difficulty in obtaining funding to involve themselves in such proceedings.

11. However, this case is quite different.  Not only is the mother seeking to substantially change the present orders, but more, that is in the context of extremely concerning articulations by the child on now several occasions of suicidal ideation.  Moreover, I am conscious that Ms C’s recommendation for psychiatric assessment is not something which could easily be undertaken by the court without the assistance of an Independent Children’s Lawyer.  However, plainly, a matter of great concern to the court is that any litigation between these parties involving this child has minimal – the bare minimum – impact upon the child that can be attained.  It is for that reason, therefore, that I have directed that any contact between the Independent Children’s Lawyer and the child not take place without the leave of the court first obtained, thus giving the parties the opportunity to make such submissions as they may see fit as to whether or not there should be direct contact between the Independent Children’s Lawyer and the child or not. 

12. I have also adjourned the further hearing of the father’s contravention proceedings to a date after the appointment of the Independent Children’s Lawyer in order that, should they see fit, the Independent Children’s Lawyer may involve themselves in the hearing of the contraventions themselves and not just in relation to any orders which should be made in consequence of the determination of those proceedings.  Ultimately, of course, whether or not they involve themselves in the proceedings will be a matter for their determination no doubt, in part, informed by what funding can be obtained. 

13. I have given these reasons notwithstanding the fact that the parties ultimately agreed to the orders that I have made, so as to provide the Independent Children’s Lawyer, once appointed, the benefit of the reasons for their appointment in these unusual circumstances, and so as they may be apprised in a relatively succinct manner of those reasons and the court’s concerns.  I will further direct that a copy of these reasons be transcribed and provided to the Independent Children’s Lawyer upon their appointment by the Director of Legal Aid.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 14 August 2014.

Associate: 

Date:  14 August 2014