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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scafides & Petrakou (No 6)

Details

AGLC: Scafides & Petrakou (No 6) [2023] FedCFamC1F 93
Case: [2023] FedCFamC1F 93
Decision Date

CaseChat Overview and Summary

In the case of Scafides & Petrakou (No 6), the Independent Children’s Lawyer (“ICL”) applied for her discharge from the parenting proceedings. The matter involved the parents, Mr Scafides and Ms Petrakou, and their child, X. The ICL argued that she could no longer assist the parents in reaching a negotiated position due to the high levels of mistrust and conflict between them, and that her role was limited given the parents' experienced legal representatives and counsel. Ms Petrakou opposed the discharge, citing the ICL’s prior meeting with X and her potential role in explaining the court's determination and assisting in implementing final parenting orders.

The legal issue before the court was whether the ICL should be discharged from her role as required by section 68LA of the Family Law Act 1975 (Cth). This section mandates the ICL to form an independent view of what is in the child's best interests and to act in a manner she believes is in the child's best interests. It also allows the ICL to suggest a course of action to the court if she is satisfied it is in the child’s best interests. The ICL’s role is further to ensure that all relevant documents and information are presented to the court to promote the child’s best interests.

The court considered the ongoing conflict between the parents and the extreme allegations made by each regarding the other's unsuitability as a parent. The court recognised the importance of the ICL’s role in light of these contentious issues and the child's sensitivity to the parents' hostility. Given the complexity and seriousness of the allegations, the court found that the ICL's continued involvement was necessary to assist in reaching a resolution in the child's best interests. Therefore, the court dismissed the ICL’s application for discharge, allowing her to continue in her role.

The court ordered that leave be granted to the ICL to make an oral application to be discharged but dismissed the application. The form of the order is subject to entry in the Court’s records. The reasons for the judgment highlight the importance of the ICL's role in complex parenting disputes where significant issues of family violence and high conflict are present.

Orders