Tandy & Padula - [2024] FedCFamC2F 671

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tandy & Padula [2024] FedCFamC2F 671

File number(s): SYC 713 of 2023

Judgment of: JUDGE BECKHOUSE

Date of judgment: 29 May 2024

Catchwords: FAMILY LAW – CHILDREN – Independent Children’s Lawyer’s (“ICL”) obligation under s 68LA(5A) to meet with the child – When parent alleges that child refuses to meet with and/or express a view to the ICL – Does the Court have power to Order that a parent facilitate a meeting between the child and the ICL? – Should the Court make detailed orders about when and how the ICL meets with the child? – Where the Court orders the father to facilitate meeting with the child on the terms proposed by the ICL.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CC, 60CE, 68B, 68L, 68LA, 68M, 102NA

Family Law Amendment Act 2023 (Cth)

United Nations Convention on the Rights of the Child Act 9, 12

Cases cited:

Hedlund & Hedlund (2021) FLC 94-065

Maldera & Orbel (2014) FLC 93-602

Oberlin & Infeld (2021) FLC 94-017

Stevenson & Hughes (1993) FLC 92-363

Zammit & Zammit [2020] FamCA 950

Division: Division 2 Family Law

Number of paragraphs: 70

Date of hearing: 23 May 2024

Place: Sydney

Solicitor for the Applicant: Mr Gad of Gad & Co Lawyers

For the Respondent: Self-represented litigant

Solicitor for the Independent Children's Lawyer: Ms Norris of Legal Aid NSW
ORDERS

SYC 713 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TANDY

Applicant

AND:
MS PADULA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

29 MAY 2024

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Father shall make the child, X born in 2015, available to meet with the Independent Children’s Lawyer, including but not limited to:
(a)delivering X to the Offices of Legal Aid NSW, at a date and time proposed by the Independent Children’s Lawyer; and THEREAFTER
(b)pursuant to s 68LA(5AA) of the Family Law Act 1975 (Cth), at any other such times and dates as reasonably requested by the Independent Children’s Lawyer in writing.

2.Leave is granted to the Independent Children’s Lawyer to relist the matter on 24 hours’ notice in writing to the Chambers of Judge Beckhouse in the event that the Father does not comply with Order 1 herein.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED…

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.

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Details

Case: [2024] FedCFamC2F 671
Decision Date: 29 May 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a dispute between Mr Tandy and Ms Padula concerning their child, X, born in 2015. The primary issue was the Independent Children's Lawyer's (ICL) obligation under section 68LA(5A) to meet with the child and the father's allegation that the child refused to engage with the ICL. The court was tasked with determining whether it had the authority to order the father to facilitate a meeting between the child and the ICL and whether it should issue detailed directives about the timing and manner of these meetings.

The court examined whether it could compel the father to ensure the child met with the ICL, considering the father's claims that the child refused to meet. Additionally, the court assessed whether it should provide specific instructions on when and how the ICL should meet with the child. The court concluded that it had the power to order the father to facilitate the child's meetings with the ICL on the terms proposed by the ICL, taking into account the child's best interests and the statutory obligations under the Family Law Act 1975 (Cth).

In its ruling, the court determined that the father must make the child available to meet with the ICL, including delivering the child to the Offices of Legal Aid NSW at times proposed by the ICL and at any other times reasonably requested by the ICL. The court also granted leave to the ICL to relist the matter on 24 hours' notice if the father failed to comply with the order. This decision underscores the court's commitment to ensuring that children's voices are heard and their interests are protected within the family law framework.

Orders

Orders of the court

SYC 713 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR TANDY

Applicant

AND:

MS PADULA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

29 MAY 2024

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The Father shall make the child, X born in 2015, available to meet with the Independent Children’s Lawyer, including but not limited to:

(a) delivering X to the Offices of Legal Aid NSW, at a date and time proposed by the Independent Children’s Lawyer; and THEREAFTER

(b) pursuant to s 68LA(5AA) of the Family Law Act 1975 (Cth), at any other such times and dates as reasonably requested by the Independent Children’s Lawyer in writing.

2. Leave is granted to the Independent Children’s Lawyer to relist the matter on 24 hours’ notice in writing to the Chambers of Judge Beckhouse in the event that the Father does not comply with Order 1 herein.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 713 of 2023
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	29 May 2024
Catchwords:	FAMILY LAW – CHILDREN – Independent Children’s Lawyer’s (“ICL”) obligation under s 68LA(5A) to meet with the child – When parent alleges that child refuses to meet with and/or express a view to the ICL – Does the Court have power to Order that a parent facilitate a meeting between the child and the ICL? – Should the Court make detailed orders about when and how the ICL meets with the child? – Where the Court orders the father to facilitate meeting with the child on the terms proposed by the ICL.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 60CE, 68B, 68L, 68LA, 68M, 102NA Family Law Amendment Act 2023 (Cth) United Nations Convention on the Rights of the Child Act 9, 12
Cases cited:	Hedlund & Hedlund (2021) FLC 94-065 Maldera & Orbel (2014) FLC 93-602 Oberlin & Infeld (2021) FLC 94-017 Stevenson & Hughes (1993) FLC 92-363 Zammit & Zammit [2020] FamCA 950
Division:	Division 2 Family Law
Number of paragraphs:	70
Date of hearing:	23 May 2024
Place:	Sydney
Solicitor for the Applicant:	Mr Gad of Gad & Co Lawyers
For the Respondent:	Self-represented litigant
Solicitor for the Independent Children's Lawyer:	Ms Norris of Legal Aid NSW

SYC 713 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TANDY Applicant
AND:	MS PADULA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	29 MAY 2024