OBERLE and OBERLE
[2012] FMCAfam 875
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OBERLE & OBERLE | [2012] FMCAfam 875 |
| FAMILY LAW – Parenting – Interim orders – Notice of discontinuance filed by both parties – parties appear to have reconciled – Independent Children’s Lawyer opposes discontinuance – risks to the child – matter adjourned and further notifications made to Department of Human Services. |
| Family Law Act 1975 (Cth) ss.11F, 60B(1), (2), 60CC, 68L, 69ZN(2)-(6) |
| Lancet & Lancet [2008] FMCAfam 525 Re K [1994] FamCA 21 |
| Applicant: | MS OBERLE |
| Respondent: | MR OBERLE |
| File Number: | DGC 1331 of 2012 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 21 August 2012 |
| Date of Last Submission: | 21 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowden |
| Solicitors for the Applicant: | Quintessential Lawyers |
| Counsel for the Respondent: | Ms Vienna |
| Solicitors for the Respondent: | Perisic Thomas Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Mulvany |
| Solicitors for the Independent Children’s Lawyer: | T.J Mulvany & Co |
ORDERS UNTIL FURTHER ORDER:
The mother exercise sole parental responsibility for the child, X born (omitted) 2007 (“X”).
X live with the mother at (omitted).
X spend time and communicate with his father by agreement with the mother, the Court noting that the mother and father as at the date of these orders are cohabitating.
Within seven (7) days the father retain for immediate professional assistance a psychologist to assist the father generally and in relation to his parenting for such purposes:
4.1.the father provide to the said psychologist a copy of this Order, the memorandum of the Family Consultant, Ms V dated 1 August 2012;
4.2.the psychiatrist assessment of the father by Dr W dated 15 August 2012;
4.3.subject to the practicalities of the psychologist retained, the father consult the psychologist at least fortnightly.
4.4.the Independent Children’s Lawyer be at liberty to communicate with the psychologist and to discuss matters generally with the psychologist and the father do all acts and things necessary to authorise the psychologist to speak with any health or allied health professionals retained by the mother and/or any education and/or health professional associated with X.
The father for himself, his servants and agents be and is hereby restrained from initiating and/or continuing and/or participating in any Facebook including but not limited to “Father’s hard done by in Court” and/or any similar Facebook facility and/or any other form of social media and it is directed that any image and/or name of X in isolation shall if practicable be removed and there be no image and/or reference to X in any form of social medial save that the father’s “(omitted) Club” is excluded.
The mother:
6.1.continue to attend upon her treating psychologist (Ms R) and provide to such psychologist a copy of this order, the memorandum of the Family Consultant, Ms V dated 1 August 2012, the psychiatric assessment of the father dated 15 August 2012, the psychiatric assessment of the mother by Dr W dated 17 August 2012;
6.2.sign such authorisation as Ms R shall reasonably require to enable the Independent Children’s Lawyer to discuss these proceedings with Ms R.
The Independent Children’s Lawyer be at liberty to provide a copy of this order and of the psychiatric assessments by Dr W of the father and the mother to any relevant officer of the Department of Human Services.
Each parent authorise their respective psychologists to communicate with each other in relation to this matter.
These proceedings be adjourned for mention on Friday, 7 September 2012 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.
Pursuant to s 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
AND THE COURT NOTES:
A.Neither parent in consenting to these orders makes any admission.
B.The parents have applied for X to commence school in 2013 at (omitted) Primary School in (omitted) and the Independent Children’s Lawyer does not oppose this.
C.These orders are made by consent save for orders 1 & 5 herein which are opposed by the father but consented to by the mother and made on an interim basis and on recommendation of the Independent Children’s Lawyer.
D.Both parties and their legal representatives are required to attend Court on the adjourned date and it is requested that Victoria Legal Aid fund such representation.
E.It is requested that a copy of the reasons for decision delivered ex tempore this day be provided to Ms C from the Department of Human Services at (omitted) and that the Department of Human Services provide a report of their investigations to the Court prior to the adjourned date and/or a representative of the Department of Human Services attend Court on the adjourned date as amicus curiae.
IT IS NOTED that publication of this judgment under the pseudonym Oberle & Oberle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 1331 of 2012
| MS OBERLE |
Applicant
And
| MR OBERLE |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today, 21 August 2012, are proceedings for parenting orders as is defined in section 64B of the Family Law Act1975 (“the Act”). The parties to the proceedings are MS OBERLE (“the mother”) and MR OBERLE (“the father”). The mother is 37 years old and the father is aged 43. The parties married in (omitted) 2001. There is a dispute about when the parties separated, it was either in 2009 on the father’s case or not until May 2012 on the mother’s case. There is one child of the relationship X born (omitted) 2007.
The mother filed an application on 8 May 2012 which was given a first return date of 30 May 2012 in the Court’s duty listed in the Dandenong Registry. The mother filed her application when she was unrepresented. The application was supported by an affidavit and raised very real concerns about the best interests of the child. The mother appeared in person on the first Court date as did the father. The father filed a response and affidavit on 30 May 2012 and his material also raised very real concerns about the best interests of the child.
Orders on first court date
There were interim orders made by the Court on 30 May 2012 which provided:
“THE COURT ORDERS THAT:
1.Pursuant to section 11F of the Family Law Act 1975 the parties and the child X born (omitted) 2007 shall attend an appointment/series of appointments with a Family Consultant of the Federal Magistrates Court of Australia at Dandenong ("the Family Consultant") on 30 July 2012 at a time to be advised by the Dandenong Family Law Registry.
2.Pursuant to section 68L(2) of the Family Law Act 1975 the said child be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.
3.Pursuant to Section 91B of the Family Law Act 1975 it is requested the Department of Human Services Victoria intervene in these proceedings.
4.Upon request from the said Department the Court do provide to it copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in the proceedings.
5.The applicant and the respondent file and serve any amended application or response and affidavit no later than 15 July 2012
6.The matter be adjourned to 6 August 2012 at 10:00 am in the duty list at the Federal Magistrates Court of Australia at Melbourne.”
Given the background of the serious allegations the mother and the father levelled against each other there were concerns held for the child’s safety. One of the orders on the first Court date was an order pursuant to section 91B requesting the Department of Human Services intervene. Another of the orders made on that day was an order pursuant to section 68L for the appointment of an Independent Children’s Lawyer and another of the orders made on that day was an order pursuant to section 11F for the mother and the father to attend upon a family consultant.
After the orders made on 30 May 2012 both parties obtained legal representation. A notice of address for service was filed on behalf of the mother on 2 July 2012, and on behalf of the father on 9 July 2012.
By that stage, the order the Court made pursuant to section 68L had been fulfilled and a notice of address for service had been filed by the Independent Children’s Lawyer. On 9 July 2012, the mother filed an amended initiating application and on 1 August 2012 the father filed an amended response. Both parties had filed further affidavit material, the mother on 9 July 2012, the father on 1 August 2012. The matter was the subject of a telephone mention on 3 August 2012 so that the child could be at Court on the return date of 6 August 2012.
Family Consultant’s Memorandum
By 6 August 2012 the parties had attended upon the family consultant and a memorandum had been prepared and was released to the parties which provided:
“Conclusion/Summary
· This assessment raises a number of concerns about risk of harm to X whilst living with his father and future time spent with him.
· MR OBERLE lacked insight into the emotional and psychological needs of X, particularly in being removed from the family home abruptly with minimal contact with his mother. His perception that X has not requested to see his mother and has no meaningful relationship with her was incongruent with the writer’s assessment.
· MR OBERLE’s narrative regarding his concerns about himself and X, appeared to be fraught with paranoid and suspicious beliefs. His beliefs about MS OBERLE’s intention to harm him or X appear to be over stated and exaggerated. His information also appears to be based on historical information provided to him by DoHS. The concerns also appear to be general in nature and are lacking in substance and evidence.
· As a result of his concerns MR OBERLE is unlikely to facilitate a relationship between X and his mother. It is evident hat his concern about MS OBERLE has presented X from developing a relationship with his mother for the past two years. MR OBERLE’s relationship with X is enmeshed. This is unhealthy for a boy who needs to explore his world beyond the hyper vigilant and restrictive parenting experience provided by his father. He has prevented X from attending kindergarten and expects him to spend all of his time with his father at work. This is detrimental to X’s social skills development and in his preparation for primary school.
· Despite his best intentions, MR OBERLE has in effect not been a protective parent, particularly given his high level of concern about X’s safety with his mother and yet remaining in the martial home potentially exposing him to further risk.
The memorandum went onto make the following recommendations:
· That this memorandum is provided in Court on the next hearing date to ensure the content and any action arising can be safely managed.
· That X lives primarily MS OBERLE and time with MR OBERLE is suspended until he participates in psychiatric assessment.
· That MS OBERLE participates in a psychiatric assessment.
· That consideration be given to using the Court’s childcare facilities as a changeover point in the event that an order is made for X to live with his mother.
· That X to be enrolled in Kindergarten as soon as possible.
· That this memorandum is provided to DoHS, child protection, (omitted), to support the notification made.
· There is merit in further intervention by child dispute services to further assist with long term parenting arrangements that are in the best interests of X.”
Interim consent orders
That memorandum which makes for salutary reading informed the approach of the parties who were all represented on 6 August 2012. The parties entered into interim consent orders which provided:
“1.That the child, X born (omitted) 2007 live with the Mother.
2.That the time the Child spends with the Father be suspended, unless otherwise agreed by all parties (including the Independent Childrens Lawyer)
3.The Father have telephone communication with the child each Monday, Wednesday & Friday from 6:00pm until 6:30pm commencing 10 August 2012 with the Father to initiate the call to the Mothers mobile phone and the mother to facilitate such calls between the Father and Child.
4.That the Mother forthwith enrol the child at kindergarten and advise the Independent Childrens Lawyer immediately in writing upon completing same.
5.That the parties as directed by the Independent Childrens Lawyer attend upon Dr W for the purpose of a psychiatric assessment which each party be at liberty to request Victoria Legal Aid to fund the cost of such report.
6.That each party provide Dr W with a copy of any documents filed in relation to this matter.
7.That the Independent Childrens Lawyer provide Dr W with a copy of the section 11F report completed by Ms V dated 1 August 1012 and any orders made by this honourable court.
8.Pursuant to order 5 hereof the Father attend upon Dr W at (omitted), on 15 August 2012 at 2:15pm, with the Mother to attend upon same on 17 August 2012 at 9:30am.
9.That neither party, their servants or agents be and hereby restrained by injunction from:
(a)Denigrating the other party in the presence or hearing of the child;
(b)Discussing these or any other related proceedings with or in the presence or hearing of the child;
10.The parties be restrained from making any representation of the child as to any live with or spend time arrangements.
11.That the Independent Childrens Lawyer have liberty to discuss these proceedings with the Department of Human services and the Childs kindergarten, and provide each with a copy of this order and the section 11F Report dated 1 August 2012.
12.That each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of each party as parents of the child on the Airport Watch List in force of all parties of arrival and departure in the Commonwealth of Australia and maintain the parties and the child on the Watch List until the Court orders its removal.
13.That each party be at liberty to apply.
14.Pursuant to Order 11 hereof the Mother serve a copy of this Order upon the Australian Federal Police forthwith.
15.The matter be otherwise adjourned until 7 September 2012 at 9:30am at the Dandenong Federal Magistrates Court.
16.Pursuant to ss.65DA(2) and 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this order.
Notation:
A.That the child be released from the child minding centre at this Honourable Court and into the Mothers care.”
As those orders make clear the matter was adjourned to 7 September 2012 in Dandenong.
Mention on 21 August 2012
However, and in no small part the reason for the matter being mentioned in Court today, last Friday, 17 August 2012 both the mother and the father, albeit both of them in person, filed notices of discontinuance in the Dandenong Registry.
As the chronology given by the Court at the commencement of today’s mention makes clear when those notices came on to the file the Court directed they be brought to the attention of the Independent Children’s Lawyer. That precipitated a request that the matter being mentioned in Court today. A direction was issued that the solicitors who remained on the record for both the mother and the father attend at Court today and they have done so. As has been made clear in submissions made by the Independent Children’s Lawyer thanks have been extended to those solicitors who are engaged under a grant of legal aid, for their cooperation in securing the matter being mentioned so quickly.
The Independent Children’s Lawyer informed the Court that since the orders of 6 August 2012 both the mother and the father have attended upon the psychiatrist. The Court has been handed two psychiatric reports which have been marked as exhibits.
Psychiatric reports
Exhibit “ICL-1” is the report on the mother which provides:
“MS OBERLE is a 37 year old woman who has a past history of post-natal depression, but reportedly no other psychiatric history.
Her depression appears to have completely remitted, and she reports that she is in good mental health currently. Her examination is consistent with this claim.
In particular, there is no evidence of psychosis, and her explanations about her husband’s concerns about her dangerousness are plausible.
In summary, a Court will hear the totality of the evidence, and decide the issues involved. Taking into account that this examiner can only accept the available history at face value, there is insufficient evidence to suggest that ongoing full-time or part-time care by MS OBERLE of her son is contraindicated for psychiatric reasons. Her husband has expressed concerns about her intention to harm him and/or their son, but there does not appear to be significant evidence to otherwise support that concern. This examiner made contact with MS OBERLE’s treating psychologist, Ms R who reported that MS OBERLE was well and demonstrating no cause for concern. Specifically, Ms R knew about MR OBERLE’s concerns about harm, and she said, “There is no basis…he’s quite paranoid…interfering…DHS found him paranoid…he was reluctant to see me.” Psychiatric issues do not currently appear to be a significant factor with regard to MS OBERLE’s ability to be an appropriate caregiver.
…”
Exhibit “ICL-2” is report prepared on the father which provides:
“MR OBERLE is a 43 year old man who claims to be in good mental health.
He describes ongoing concerns about threats that his wife has made about himself and their son, and believes that these have partly arisen out of his wife’s residual symptoms of post natal depression, but also out of some sort of cultural belief systems. On the other hand, at a separate interview, his wife described MR OBERLE as having expressed ‘overvalued’ paranoid ideation (without definite evidence of delusional thinking, or hallucinations) since his father’s death.
MR OBERLE acknowledges some mild obsessive-compulsive and paranoid personality traits, but denies any past psychiatric history. At interview, there is no definite evidence of psychosis or significant anxiety or depression.
There appears to be a degree of limited psychological-mindedness, but MR OBERLE is agreeable to working with a psychologist with the view to improving his relationship with his wife, for their son’s benefit.
Part of his stated motivation is to avoid the possibility of replicating his own childhood experiences when his parents separated.
In summary, a Court will hear the totality of the evidence, and decide the issues involved. Taking into account that this examiner can only accept the available history at face value, there is insufficient evidence to definitely suggest that ongoing full-time or part time care by MR OBERLE of his son is contraindicated for psychiatric reasons. Psychiatric illness does not currently appear to be an obviously significant factor with regard to his ability to being an appropriate caregiver.
Notwithstanding, I note his wife’s concerns, as well as those of others including a family consultant and his wife’s longstanding psychologist (who reported to this examiner that MS OBERLE appeared to have made a complete recovery from post natal depression). It is possible that MR OBERLE is suffering a level of paranoia that is either chronic and untreated, or greater than he is aware of admitting to. I also note that the possibility that MR OBERLE is currently in the process of manipulating his wife, the situation, and all parties involved with some ulterior motive.
MR OBERLE’s agreement to seek psychological counselling appears appropriate, and from this examiner’s perspective would appear advisable in terms of some monitoring MR OBERLE’s mental state, liaising with MR OBERLE’s general practitioner who would also be monitoring him, and being somebody who can assist with crises, and any future developments within the family.
…”
Proposed interim orders by Independent Children’s Lawyer
The Court has been handed a minute of the proposed interim orders that the Independent Children’s Lawyer would be seeking today up and until 7 September 2012. Each of the parties have had an opportunity to consider their position in relation to those proposed orders which were marked as “ICL-3”.
Ultimately the parties have been able to arrive at a consent position in relation to all of those proposed orders save for two. As is clear from the exchange between the Court and counsel for the father to the extent that the father doesn’t consent to order 1 or order 5 there is ample power for the reasons I have given for the Court to make those orders until further orders as orders of the Court.
One of the unusual facets of this matter is that the mother and the father (who are as I indicated both so far as the Court is presently concerned represented and legally aided) had, nonetheless, last Friday attended at the Dandenong Registry and given notice that they wish to discontinue the proceedings.
The mother and the father made allegations against each other and they raised concerns that they said that those allegations raised for the child’s best interests. The nature of the allegations made gave rise to a real concern that neither party may be a suitable carer for the child.
An order had been made by the Court on 30 May 2012 requesting that the Department of Human Services in this state consider intervening in the proceedings.
As I said, the Department of Human Services was invited to intervene in the proceedings pursuant to section 91B of the Act. Despite this to date the Department of Human Services have not intervened in this case. The party’s material and indeed the material gathered since the first Court date make clear that the issues in this matter are complex.
The allegations that the mother and the father made against each other right up and until their respective notices of discontinuance to the Court on 17 August 2012 raised real issues as to whether either of them were able to provide for the child and whether either of them may present a risk to the child.
Intervention of Independent Children’s Lawyer
What is ultimately going to be in the best interests of the child is a very difficult question.
If there is any truth in either of the party’s allegations there is a real issue as to whether either may be able to present a case which focuses on what is in the best interests of the child unclouded by their own interests as a party to the proceedings. Fortunately, as these reasons have noted, an Independent Children’s Lawyer had been appointed after the proceedings came before this Court.
In Lancet & Lancet [2008] FMCAfam 525, Riethmuller FM set out the power to appoint and role of an Independent Childrens Lawyer at paragraphs 9-19:
“Independent Children’s Lawyers
9.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.
10.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.
11.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.
12.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).
13.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)
14.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.
15.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.
16.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
17.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.
18.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 Independent Children’s Lawyer appointed has acted appropriately and has profound concerns about the safety of the child. The correspondence from the Independent Children’s Lawyer to the mother and father’s solicitor’s dated
14 August 2012 speaks for itself:
“Dear Colleagues,
We refer to previous communication in connection with the above matter and write this letter with the utmost of urgency and appropriate sensitivity. The Independent Children’s Lawyer requests that each of you approach the matter with sensitivity and discretion in the interests of X, but also the interests of your client.
We advise as follows:
1.It has come to the attention of the Independent Children’s Lawyer that your client’s may have reconciled and that X is residing with both of your clients. This is a matter of profound immediate concern.
2.Obviously, policies of the Court and of the law in this jurisdiction encourage parties to negotiate a sensible outcome, but that outcome ought be negotiated with advice and of course very serious input from the Independent Children’s Lawyer. The Independent Children’s Lawyer makes it clear that in most circumstances he does not interfere with properly considered and negotiated outcomes and from time to time this includes a reconciliation of a relationship.
3.However, at this stage there are specific orders in place and the Court through its resources has gone to considerable trouble including the section 11f memorandum, the mention on the 3rd August 2012, and the Court event on the 6th August 2012, to take protective steps for X. Further, it is noted that the Independent Children’s Lawyer went to considerable lengths to facilitate early psychiatric assessments of each of your clients, the appointments for the assessments are referred to in the orders and Dr W has confirmed the availability of those two appointments.
4.Without for one minute condoning (if the information to the Independent Children’s Lawyer is correct) that contrary to the Orders, X is residing in the same household as both parents, the Independent Children’s Lawyer requires each of your client’s to keep their respective appointments with Dr W.
We place this letter on record given the sensitivities and concerns of this matter. A copy of being provided to Dr W.
Yours faithfully”
Next steps
Notwithstanding the reports set out above those concerns remain and have informed the proposals in exhibit ICL-3 today and resulted in the interim orders which ultimately have for all intents and purposes been agreed to by the mother and the father.
Notwithstanding, that the parties have given notice to the Court that they wish to discontinue their respective applications such is the concern that the Independent Children’s Lawyer holds for the child’s best interests on an interim basis in light of the material currently before the Court, the Court has been asked to make interim orders in terms of exhibit “ICL-3” to allow the interventions referred to therein to occur between now and 7 September 2012. With the benefit of legal advice today both the mother and the father have come to a position today where they don’t seriously cavil with the orders sought by the Independent Children’s Lawyer.
One matter that does require comment is the lack of the involvement Department of Human Services, notwithstanding, the request by the Court for them to intervene in the matter. I have had the benefit of hearing today from the Independent Children’s Lawyer of further attempts to appraise the Department of Human Services of the most recent developments. These were made in an effort to elicit from them, as the child protection authorities in this state, some indication as to whether they will be taking steps to become involved in these proceedings or in some other way.
There is a memorandum of understanding between the Family Law Courts and the Department of Human Services. I note the details of that memorandum. It attempts to set parameters around the interactions and the jurisdictions of the Family Law Courts and the child welfare authorities and the Children’s Court in this state. It sets important boundaries that all parties involved in parenting proceedings should bear in mind. However, against the background of the material that I have referred to in these reasons it is a matter of profound concern on the Court’s part that, notwithstanding, the wealth of material and the concerns expressed by a number of different professionals involved in this matter to date that the Department of Human Services has chosen not to become involved.
It is, of course, a matter for the Department as to any decision it takes and as to whether there should or should not be proceedings in the Children’s Court. I am giving these reasons for decision to make it as clear as I possibly can to all concerned and if need be to the Department that the request for their intervention or other participation in the proceedings is made because there are grave concerns held for the child’s best interests on the material as it presently stands.
I am prepared to adjourn the proceedings in this Court for a short period to see whether or not the Department becomes further involved having regard to the further contact between the Independent Children’s Lawyer and officers of the Department referred to on transcript this morning. If they don’t, I will consider whether the current proceedings should be discontinued as the parties appear to ask leave of the Court to do or whether further action should be taken by the Court on that date.
However, I will cause these reasons to be transcribed and edited if they need be from the transcript so that they can, if need be, be forwarded to the Department in an endeavour to try and prompt some participation in the proceedings for the child’s sake. I so order.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 21 August 2012