ROUTLEY & ROUTLEY

[2014] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROUTLEY & ROUTLEY [2014] FCCA 2265

Catchwords:
FAMILY LAW – Children – parenting orders – appointment of Independent Children's Lawyer – serious allegations against father – where evidence that children do not wish to spend time with father – best interests of the children – where neither party attended court – where independent children’s lawyer appointed on Court’s own motion.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR ROUTLEY

Respondent: MS ROUTLEY

File Number: SYC 6233 of 2013

Judgment of: Judge Scarlett

Hearing date: 1 October 2014

Date of Last Submission: 1 October 2014

Delivered at: Sydney

Delivered on: 1 October 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: Barber Lawyers

Counsel for the Respondent: No appearance

Solicitors for the Respondent: Kazi Portolesi Lawyers

ORDERS

1. The interests of the children X born (omitted) 2000 and Y born (omitted) 2002 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid New South Wales is requested to arrange this representation.

2. Within fourteen (14) days of the date of this Order the Applicant and the Respondent are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney in the State of New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits, reports and all other relevant documents.

3. The Independent Children’s Lawyer is granted leave to issue up to twelve (12) subpoenas without charge.

4. The Application is adjourned to Tuesday 28 October 2014 for mention in Courtroom 3A at 10:00 am and the parties and their legal representatives must attend in person on that day.

IT IS NOTED that publication of this judgment under the pseudonym Routley & Routley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6233 of 2013

MR ROUTLEY

Applicant

And

MS ROUTLEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the father of the parties’ two children, X, who was born on (omitted) 2000, and Y, who was born on (omitted) 2002. The children live with the mother.

2. By an Application in a Case filed on 12 March 2014 the father seeks the following parenting orders:

   1.  That the parties have shared parental responsibility for the children X born on (omitted) 2000 and Y born on (omitted) 2000 (“the children”).

   2.  That the father spends time with the children every alternate Saturday and Sunday between the hours of 9.00 am till 8.00 pm on Saturday and 8.00 am till 8.00 pm on Sunday.

   3.  For the purpose of facilitating order 2 above the parties to share the responsibility of delivering and collecting the children equally.

3. The mother filed a Response to the Application in a Case on 24 April 2014 in which she sought Orders that:

   a)She should have sole parental responsibility for the children;

   b)The children should live with her;

   c)The children should spend time with their father at a supervised contact centre for 2 hours on alternate Saturdays;

   d)The father would otherwise be restrained from contacting the children;

   e)The parties would be restrained from removing the children from Australia; and

   f)The children’s names would be placed on the Airport Watch List (now known as the Family Law Watch List) maintained by the Australian Federal Police.

4. The parties attended a Child Inclusive Child Dispute Conference with a Family Consultant on 12 May 2014. The Family Consultant reported that both children said that they did not wish to see their father and the boy X complained that his father had sexually abused him. The Family Consultant suggested that it might be helpful to appoint an Independent Children’s Lawyer.

5. On 16 June 2014 the Court ordered that a Family Report should be prepared. The Application was adjourned to 28 October 2014 for mention.

The Family Report

1. The Family Report was completed on 15 September 2014. The Family Consultant reported that the child X said that his father had sexually abused him by touching his genitals and had been doing so since he was about seven years old. He said he did not want to see his father.

2. The Family Consultant reported that the child Y had said that she had no happy memories of her father at all and that she did not want to spend any time with him.

3. The Family Consultant spoke to a Detective who had interviewed the boy X about the alleged sexual abuse but was told that the Police had not made a decision whether to charge the father with any offence.

4. The father filed an affidavit on 4 September 2014 in which he deposed that he had been served with an Application to Vary the Apprehended Violence Order against him. The father indicated that he wished to defend the matter and it was listed for hearing on 12 August 2014. Apparently the Application did not proceed on that day but the affidavit is silent as to the reason or as to the date to which the Application has been adjourned.

5. The parties’ solicitors were contacted to advise that this Application had been listed for mention today for the purpose of releasing the Family Report and other matters. The father’s solicitor sought to be excused as he had a commitment at another Court. There was no appearance by or on behalf of the mother.

Appointment of an Independent Children’s Lawyer

1. The allegations against the father are very serious and it is surprising that the parties’ solicitors have not been more active in pursuing this matter.

2. The best interests of the children must be the paramount consideration, as provided by s.60CA of the Family Law Act 1975 (Cth). It is a primary consideration under the Act that the Court must have regard to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)).

3. It appears clear that the interests of both children in this matter should be independently represented by a lawyer, under the provisions of section 68L of the Act. The criteria for appointment were set out by the Full Court of the Family Court in Re K[1], and it would appear that the following apply here:

   a)cases involving allegations of child abuse, whether physical, sexual or psychological;

   b)cases where there is an apparently intractable conflict between the parents; and

   c)cases where the child is apparently alienated from one or both parents.[2]

   [1] (1994) 17 Fam LR 537; FLC 92-461

   [2] Re K (1994) 17 Fam LR 537 at 555; FLC 92-461 at 80,774

4. Whilst the parties’ lawyers have not made any application to this effect, and, indeed, neither lawyer has attended Court today, it appears to me that the best interests of the children indicate that the Court should make the Order of its own motion.

5. The Application will be mentioned before the Court on 28 October 2014, and it appears to me that this should allow sufficient time for an Independent Children’s Lawyer to be nominated by Legal Aid NSW and make the appropriate arrangements.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 1 October 2014