Scafides & Petrakou (No 6)
[2023] FedCFamC1F 93
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scafides & Petrakou (No 6) [2023] FedCFamC1F 93
File number: SYC 1814 of 2020 Judgment of: CAMPTON J Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – PARENTING – INDEPENDENT CHILDREN’S LAWYER – Application made by the Independent Children’s Lawyer for discharge from the proceedings – Where the Independent Children’s Lawyer is of the view that there is little she can do to assist the Court or the parties in the resolution of their dispute, in circumstances where the child is not of an age to provide her views via the Independent Children’s Lawyer and each of the mother and father have engaged experienced legal representatives – Where the parents’ relationship is characterised by high levels of mistrust and conflict – Where the parents adopted extreme positions on the first day of the trial and each makes serious allegations as to unacceptable risk against the other – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 68LA Cases cited: Scafides & Petrakou (No 3) [2023] FedCFamC1F 76
Scafides & Petrakou (No 4) [2023] FedCFamC1F 78
Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 20 February 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Sexton Family Law Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: O’Sullivan Legal Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 1814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCAFIDES
Applicant
AND: MS PETRAKOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
20 February 2023
THE COURT ORDERS THAT:
1.Leave is granted to the Independent Children’s Lawyer to make an oral application to be discharged.
2.The Independent Children’s Lawyer oral application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scafides & Petrakou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
The Independent Children’s Lawyer (“ICL”) makes an oral application seeking an order for her discharge from these proceedings. This is now the sixth interlocutory judgment delivered in these proceedings over the past five days.
The ICL was appointed pursuant to an order made by Judge Smith in what was then the Federal Circuit Court on 17 August 2020, before the proceedings were transferred to this Court. The ICL’s application for a discharge is opposed by the mother. It is neither opposed nor consented to by the father.
The ICL submits that, in the circumstances of this matter, she can no longer assist the parents to reach a negotiated position as to the parenting of their child, X (“X”), who was born in 2016 and is presently six years old. It was her submission that the parents are now at a somewhat intractable part of the proceedings, as was recorded in my reasons delivered this morning (see Scafides & Petrakou (No 3) [2023] FedCFamC1F 76 (“my earlier judgment”)).
She submits that the trial has commenced, and that all administrative and other procedural matters as to expert evidence have been appropriately marshalled into place for the trial to continue. In circumstances where counsel for the ICL is engaged in other proceedings which have gone part-heard and are listed for trial for part or all of tomorrow, and the parents have the benefit of very experienced legal practitioners and counsel, the ICL is of the view that she adds little value to the proceedings. This submission is supplemented by the ICL’s intention only to cross-examine both the parents and not the other witnesses in each of their cases, and it being likely as limited subject matters, having regard to the quality of the other legal representatives appearing at trial.
In support of the mother’s opposition to the ICL’s discharge she cites that the ICL has met with X via Zoom last December and advised X as to her role in the proceedings. She submits that given the extreme parameters of the relief currently sought by each parent, X will likely need some explanation of the nature of the determination made by the Court as to her parenting and that the parents and X may require some assistance in implementing the final parenting orders made.
Section 68L of the Family Law Act 1975 (Cth) (“the Act”) provides for the appointment of independent representation of a child’s interest by way of an order of the Court. Fundamentally and as is self-evident by way of the orders made on 17 August 2020, Judge Smith (as he was then) was of the view that X’s interests in the proceedings ought to be separately represented and considered that the role of the ICL, as identified in s 68LA of the Act, was an important consideration for the purposes of these parenting proceedings. That section requires:
(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.
Importantly, s 68LA also provides a mandate for the ICL, if she is satisfied that the adoption of a particular course of action is in X’s best interests, to make a suggestion or submission as to the adoption of that course to the Court. As was foreshadowed in the trial management of this matter last week, I anticipated requesting that the ICL advise the Court and the parents of her view on this matter prior to the commencement of the evidence, if possible. I am yet to hear that view, as are the parties. A further part of the ICL’s role is to ensure that all relevant documents and information, which otherwise might not be placed before the Court because of the adversarial interests of each parent, are identified and for part of the proceedings so as to ensure that all matters are properly drawn to the Court’s attention arising from the evidence in promoting the child’s best interests.
In these proceedings, there are historic issues between the parents relating to family violence that strike at the heart of some of the s 60CC factors to be taken into account in the consideration of X’s best interests. In the view of the single parenting expert, Dr G, those issues may pivot many of the parenting outcomes for X. The landscape of dysfunction between the parents as at 26 April 2021, being the date of Dr G’s report, was characterised by “an extremely [high] level of conflict… bitterness, lack of trust, disrespect and disdain for the other”. That level of acrimony appears not to have subsided over the course of the past 18 months. On one view, it has significantly increased. Against that background Dr G found X to be:
… an observant, sensitive and very kind young child. There is no doubt in my view that she is aware of the hostility between her parents and that it is beginning to have an adverse effect on her. I am also of the view that both the parents have exposed [X] to their unrelenting criticism of the other parent, in subtle and potentially direct ways.
(Report of [Dr G] dated 26 April 2021, lines 856–860).
She further found that at the time of her report that “each of the parents are very doting and loving and want to do the best for [X]”. Similarly, she expressed that “[X] loves both her mother and her father and has a very positive and loving and beneficial relationship with each of them.”
It is against that yet untested expert opinion evidence that the mother now contends that X is at risk of experiencing sexual abuse occasioned by the father, and the father contends that the mother cannot facilitate a relationship between X and him. The parents now each promote extreme positions as recorded in my earlier judgment (referred to at [3] above).
It would seem, to my mind, having regard to the mushrooming issues in this case and the seriousness of the contended findings sought by each parent, that the role of the ICL in the trial process has been reinforced, insofar as the Court is of the view that it would be greatly assisted by the ICL continuing in her role in the proceedings.
For the above reasons, the oral application of the ICL to be discharged from these proceedings will be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 22 February 2023
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