Tandy & Padula
[2024] FedCFamC2F 671
•29 May 2024
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 that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The parties are before the Court in relation to final parenting arrangements for their eight-year-old daughter, X (“X”).
X’s interests have been independently represented by a lawyer (who I will refer to as the Independent Children’s Lawyer or “ICL”) since 12 September 2023. But the ICL has been unable to meet with X. As a result, the matter was listed for a discrete hearing to determine whether orders should be made for the ICL to meet with X pursuant to s 68LA(5A) of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
X’s parents are the applicant father, Mr Tandy (“the father”), and the respondent mother, Ms Padula (“the mother”).
The father was born in 1971. He is currently 53 years old.
The mother was born in 1992. She is currently 31 years old.
The parties met in Country B and commenced a relationship in 2014. They separated on a final basis in February 2018.
X was born in Australia in 2015. She has primarily lived with the father since the parties’ separation when she was two years old. She currently attends C School where she is in year 3 and progressing well.
X’s mother lives in Queensland. X has spent limited periods of time with her mother since separation. The father initiated these proceedings on 7 February 2023 when X was in Queensland in the care of her mother. By consent, she returned to the father’s care in early 2023. Since this time, X has been permitted to speak to her mother on two occasions each week. The mother has also spent time with X in Sydney on at least one occasion.
On 7 June 2023, an Order was made for a Family Report to be prepared.
The Family Report was completed by Court Child Expert, Ms E (“the report writer”) on 11 December 2023 (“the Family Report”).
It is relevant to note at this point that the father was reluctant to have X attend an interview with the report writer. The report writer observed at paragraph 65 of the Family Report:
[Mr Tandy] was from the outset extremely reluctant to bring [X] into Court for her interview, requiring considerable reassurances by the CCE that it would only be a short and comfortable play-focussed [sic] experience for her. Accordingly, [Mr Tandy] left the Court following his interview with the agreement that he would go to [X]’s school and bring her back to the Court. However, when he returned it was without [X]. When the CCE questioned him and expressed surprise and consternation, [Mr Tandy] told the CCE that it was because [X] had not wanted to come and had become upset, so he had acquiesced to her wishes. The CCE told him that he would be in breach of Orders and the ensuing Family Report would be highly limited in nature if he did not present [X] and suggested to him that it reflected poorly on him as a parent if he could not get his eight-year-old child to co-operate in something so important. [Mr Tandy] was given another opportunity to go and collect [X] and this time he returned with her. When she arrived, [X] seemed briefly shy and agreed reluctantly to come with the CCE for her interview. [Mr Tandy]’s anxiety was highly apparent, trying to secure promises from the CCE about the duration of [X]’s interview in the presence of [X].
The father argued that the report writer’s observations of his and X’s behaviour were inaccurate and did not correctly reflect the events that occurred during the interviews. As the evidence is untested, I will place limited weight upon the observations of the report writer.
On 27 March 2024, the father filed an Application in a Proceeding seeking to adjourn the final hearing which had been listed to commence on 20 May 2024. On 4 April 2024, this Application was refused, and the parties were ordered to attend a Legal Aid COMP mediation organised by the ICL prior to the hearing. The mediation took place in mid-2024, but no resolution was reached.
When the matter came before the Court on 6 May 2024, the ICL advised that she had not met with X. The date is of some significance because on 6 May 2024, the Family Law Amendment Act 2023 (Cth) came into effect (“the legislative amendments”). A new subsection, 68LA(5A), requires that the ICL meet with the child and provide the child with an opportunity to express any views in relation to matters to which the proceedings relate (unless the exemptions stipulated in s 68LA(5B) apply).
I directed the father to the legislative amendments and granted leave to the ICL to relist the matter if she was unable to facilitate a meeting with X with the father’s cooperation.
On 8 May 2024, the father’s previous legal representative filed a Notice of Ceasing to Act. This meant that the father was self-represented in circumstances where an Order had previously been made under s 102NA which had the effect of banning the father from cross-examining the mother personally. Considering this development, on 9 May 2024, the final hearing was vacated and rescheduled to August 2024. However, the matter was listed for an interim hearing on 23 May 2024 to determine whether orders should be made to require the father to facilitate the ICL meeting with X.
The ICL filed a Case Outline document on 17 May 2024, and relied upon the Family Report.
The father relied upon the affidavit he filed on 22 May 2024.
On the record for the mother is a lawyer who was appointed by virtue of an Order made under s 102NA. That lawyer elected to play no part in this hearing, arguing that it was beyond the scope of his limited retainer. He was not in attendance at the hearing. The mother was therefore unrepresented but assisted by a Country B interpreter. Through her interpreter, she indicated to the Court that she supported the making of an order for X to meet with the ICL.
THE RELEVANT LEGAL PRINCIPLES
An ICL is a lawyer appointed under s 68L of the Act if it appears to the Court that the child’s best interests ought to be independently represented by a lawyer.
Section 68LA(2) of the Act provides that an ICL must form an independent view, based on the evidence available, of what is in the best interests of the child, and act consistently with those best interests in the proceedings.
It is a unique model of representation because the ICL is not the child’s direct legal representative and does not act on the child’s instructions (s 68LA(4)).
Section 68LA(5) of the Act defines the specific duties of an ICL:
(5) 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.
Section 68LA(5A) explicitly provides that the ICL must perform, not necessarily at the same time, the following two, separately defined duties:
(a) meet with the child;
(b) provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.
Unless the child does not want to meet with the ICL, these two duties may be performed at any time during the proceedings, but must occur prior to the Court making final orders, unless an exception in subsection (5B) arises.
Section 68LA(5B) provides that an ICL is not required to perform the obligation arising from subsection (5A) if:
(a) the child is under 5 years of age; or
(b) the child does not want to meet with the independent children’s lawyer, or express their views (as the case requires); or
(c) there are exceptional circumstances that justify not performing the duty.
(Emphasis added)
The term “exceptional circumstances” is not explicitly defined in the Act. However, subsection (5C) provides that:
(5C) Without limiting paragraph (5B)(c), exceptional circumstances for the purposes of that paragraph include that performing the duty, would:
(a) expose the child to a risk of physical or psychological harm that cannot be safely managed; or
(b) have a significant adverse effect on the wellbeing of the child.
A reading of the legislative amendments might leave the impression that a child meeting with an ICL is a new initiative. This is not the case. The existing National Guidelines for Independent Children’s Lawyers (2021) (“the National ICL Guidelines”) provide guidance to the ICL in fulfilling their role, including that ICLs should meet with children in most circumstances (Parts 5 and 6.2 of the National ICL Guidelines). The National ICL Guidelines have been endorsed by this Court and is a publicly available document on the Court’s website. It was also tendered by the father.
THE PARTIES’ SUBMISSIONS AND PROPOSALS
The ICL sought the following orders:
(a)The father do all acts and things necessary to facilitate any request by the ICL to meet with the child, pursuant to s 68LA(5A) of the Act, including but not limited to delivering the child to the offices of Legal Aid NSW at any such times and dates as reasonably requested by the ICL in writing.
(b)In the event that the father does not facilitate the ICL’s request to meet with the child, leave is granted for the ICL to relist the matter on 24 hours’ notice in writing.
She argued that such an order is necessary to allow her to perform her duty to meet with X.
The father objected to the orders sought by the ICL.
He submitted that X has genuinely expressed to him, on several occasions, that she does not wish to meet with the ICL and that she cannot be compelled to express a view.
In support of this contention, he deposed that in mid-2024 he had the following conversation with X:
[X], would you like to meet with a lawyer from the court to express your point of view in relation to the proceedings.
Her reply was frank and to the point:
No.
The father deposed that on 20 May 2024:
(a)He recorded X saying to him that “she did not want to attend an interview with the ICL”.
(b)X wrote on a piece of paper: “No I don’t want to talk to a lawyer”.
(c)In reply to the father’s text message asking X if she wanted to meet with the ICL, X replied “No thankyou”.
The father therefore submitted that s 68LA(5B) applies because X has expressed a genuine wish to not meet with the ICL nor to express her view.
ANALYSIS
Having regard to both the background to this matter and the relevant legal principles, it seems that there are several questions to be answered in arriving at a determination. They are:
(a)Does the Court have the power to compel the father to facilitate any request by the ICL to meet with X?
(b)Should the ICL meet with X? Answering this question involves a consideration of two further sub-questions:
(i)Should the Court accept the father’s evidence that X does not wish to meet with the ICL?
(ii)Should a meeting between the ICL and X take place if X does not wish to express a view?
(c)If the father is required to facilitate a meeting between X and the ICL, what orders are appropriate?
Does the Court have the power to compel the father to facilitate any request by the ICL to meet with X?
Section 68LA(5D) of the Act provides a legislative pathway for cases where an ICL argues that there are exceptional circumstances under s 68LA(5B)(c) that justify that no meeting should take place between the ICL and the child.
However, no such requirement exists in circumstances where it is argued that the child does not want to meet with the ICL or express a view as is the case here.
Surprisingly, while s 68M of the Act allows an ICL to apply for an order that a person make a child available for an examination for the purpose of preparing a report, it was not amended to cover the situation presently before the Court. The distinction between the role of an expert and an ICL is well articulated by the National ICL Guidelines, especially at Part 5.2, and it cannot be argued that s 68M could be taken as the source of power in this situation.
The source of power that allows the Court to compel a parent to facilitate a meeting between the ICL and the child can however be found elsewhere. Section 68L(2)(b) provides that the Court can make such other orders as it considers are necessary to secure the independent representation of the child’s interests. Arguably, an order facilitating a meeting between the child and the ICL may well be necessary to secure the representation of X’s best interests. The note at the conclusion of section 68LA(5D) supports this reading.
But, even if I am in error, as these proceedings arise under Part VII of the Act, the Court can exercise injunctive powers under s 68B of the Act. Under this section, the Court has the broad discretion to grant an injunction “unconditionally or on such terms and conditions as the court considers appropriate” (pursuant to s 68B(3)).
An injunction made under s 68B is informed by the best interests of the child, but it does not have to be the paramount consideration in my decision making (Hedlund & Hedlund (2021) FLC 94-065 at [114]).
To be abundantly clear (as cases such as Oberlin & Infeld (2021) FLC 94-017 requires), I can make this injunctive order under s 68B(1) because I am concerned that without X meeting with the ICL, the Court is unable to receive an independent, unbiased perspective of her views and wishes in relation to the final parenting arrangements that are made.
Should the ICL meet with X?
This is an unusual situation where the ICL is proposing to fulfil her statutory duty to meet with X yet is unable to do so because the father refuses to facilitate that meeting. The refusal is grounded on two propositions, that:
(a)X, who is eight years old, does not want to meet with the ICL; and
(b)X does not wish to express a view to the ICL.
Should the Court accept the father’s evidence that X does not wish to meet with the ICL?
The recently amended s 60B sets out two objects for that part of the Act that applies to parenting proceedings. Firstly, to ensure that the best interests of children are met, including by ensuring their safety, and secondly to give effect to the United Nations Convention on the Rights of the Child (“the Convention”).
The Convention does not create legally enforceable rights for children. But, as was observed by Bennett J in Zammit & Zammit [2020] FamCA 950 at [24]:
The significance of an object of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation.
The National ICL Guidelines also direct ICLs to the Convention, notably both arts 3 and 12 of the Convention. In particular, the Convention provides at art 12:
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
The appointment of an ICL for X is one of the mechanisms available under the Act to give effect to art 12 and provide X with the opportunity to be heard through an appointed representative who is uniquely neutral and independent.
Section 68LA(2) of the Act provides that an ICL must form an independent view, based on the evidence available, of what is in the best interests of the child, and act consistently with those best interests in those proceedings. It is difficult for this to be achieved without at least one meeting taking place.
In Maldera & Orbel (2014) FLC 93-602, the Full Court consisting of Ainslie-Wallace, Ryan and Aldridge JJ relevantly observed at [92]:
There is a well developed body of case law which highlights the importance of children’s views and that the ascertainment of children’s views should not be done in a superficial way. Both the case law and now s 60CE provide that Part VII does not permit the court or any person, for example a family consultant, to require a child to express his or her views in relation to any matter. For example, with whom the child would prefer to live. Therefore, it can be seen that the Act and cases strike a careful balance between affording a proper opportunity to children, whose care, welfare and development is at issue, to say, for example, what outcome the child wants ordered while the child’s right to remain silent on the matter is preserved. Thus, a child caught between loved adults cannot be forced to say something which the child wants to remain private. In a similar vein, a child might decide that it would be unsafe to express a view contrary to that held by an adult of whom the child is afraid. It is because these dynamics have the potential to significantly impact on a child’s willingness and ability to discuss his or her circumstances and views that the ascertainment of children’s views should not be done in a superficial way.
(Citations omitted)
The father has gone to great effort to seek out X’s views and put them before the Court. But his recent assertions about X’s attitude to attending a meeting are at odds with the reflections made by the report writer.
On that occasion, the father was also extremely reluctant to bring X to meet the report writer for her interview. The father said that X was tearful, unwilling, and even intimidated. Taking the father’s evidence at its highest, once X had settled, the report writer observed that she “presented as a confident child with an infectious smile and dimples, and a delightfully expressive and exuberant manner and style of speech.” She appeared “to be a vibrant, happy child who has a strong sense of connection to her mother, father and brother, and a comfortable relationship with her stepfather.”
It appears that X was able to express and articulate her wishes to the report writer clearly and with a satisfactory level of understanding of how such wishes would affect her life. She gave no indication to the report writer that she did not wish to express a view, with the report writer observing, at paragraph 64, that she expressed:
a clear wish to live with her father and to continue to attend [C School] and to spend time with her mother during school holidays. When the idea of half of all school holidays was put to her she said that she liked the idea. She said that she would have no difficulties in returning to Brisbane, but she also stated that she would like it if her mother came to Sydney to see her more, and the possibility of her mother watching her [extracurricular activities] was discussed.
The steps taken by the father to satisfy the Court that X does not wish to meet with the ICL were unfortunate. Whilst he is no doubt acting in what he believes to be the best interests of X, he is not independent, and I cannot be satisfied that he provided X with accurate information about the role played by the ICL. To rely upon his evidence about X’s willingness and ability to discuss her circumstances with an ICL would, in my view, be at best superficial and potentially erroneous.
A meeting should take place to allow the ICL to form an independent view of X’s wishes.
Should a meeting with between the ICL and X take place if X does not wish to express a view?
The alternate position taken by the father is that even if X is required to attend a meeting with the ICL, it is an unnecessary process because she has expressed a genuine desire not to express a view in relation to the matters before the Court.
He relied upon s 60CE to ground his argument. Section 60CE provides that:
Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.
The father also directed me to a Fact Sheet which appears to have been produced by National Legal Aid, entitled “Family Law Amendment Act: 2023 Independent Children’s Lawyer Reforms” (“the Fact Sheet”), where it observes that section 60CE:
makes clear that a child has choices about the way they want to engage with the ICL. These must be the child’s wishes, and not those of others. The child may choose not to meet with the ICL and not to express any views. The child may choose to meet with the ICL but may not wish to express any views. Alternatively, the child may wish to express a view but may not wish to meet with the ICL. In these circumstances, the ICL should organise for an alternative method for the child to communicate their views, for example, a letter or electronic communication.
The National ICL Guidelines make it clear that there are many purposes of a meeting between an ICL and a child. Whilst not an exhaustive list, some of these include:
(a)to “establish a professional relationship with the ICL” (Part 5);
(b)to explain the role of the ICL and the court process (Part 5.1);
(c)to provide the child with the opportunity to express a view free from the influence of others (including parents) (Part 5.3); and
(d)so that a child can be “advised about significant developments in his or her matter” and, if the child so wishes, to ensure that “the child has the opportunity to express any further view or any refinement or change to previously expressed views” (Part 5.3).
Clearly, the National ICL Guidelines set out many purposes for a meeting between an ICL and a child and go beyond the narrow issue of seeking out a child’s views. I therefore have concluded that a meeting between the ICL and X should take place, even if X chooses not to express a view about the matters before the Court.
The father deposes, at paragraph 38 of his affidavit, that even if an order is made for him to facilitate this meeting, he would be reluctant to do so:
I do not believe that when the legislation made provision for the child to opt out of a meeting that the ICL is otherwise required to have, that the law intended for substantial pressure to be placed upon the parent of the child to convince an unwilling child, undesirous to attend, to, as [Ms E] states, influence a child to lose connection with their own wants and desires and go along with what they in fact do not want to do.
It is understandable that the father wishes to protect his daughter from her exposure to these legal proceedings. It seems that he has managed to do this successfully so far. But, he is reminded that in making such an Order, the father now has a positive legal obligation to perform. As X’s parent, he must positively encourage her to meet with the ICL and must take reasonable steps to comply with this Order. He cannot passively stand by if X resists meeting with the ICL (see Stevenson & Hughes (1993) FLC 92-363).
What Order should the Court make?
The father argued that if the Court determines that a meeting between X and the ICL should take place, it should not occur until after the mother has filed her Response.
In response the ICL argued, that:
(a)it is for the ICL to exercise discretion to determine when, how often and where any meeting with a child should take place;
(b)the purpose of the meeting with X goes beyond discussing the competing proposals with X; and
(c)the ICL would not necessarily restrict herself to one meeting with X.
It is tempting for the Court to make very specific orders when an interim application is being determined. This is often done in high conflict situations to avoid any doubt, to provide certainty, and avoid further court events. But it is not the role of the Court to tell legal professionals how they should represent their clients. That is the purpose of the National ICL Guidelines and other similar documents that guide the professional practice and standards of ICLs.
I am also mindful that s 68LA(5AA) makes it clear that in performing her duties, the ICL has a discretion to determine the timing, frequency, and method of engagement with X based on her professional judgment. This is reiterated on page 5 of the Fact Sheet which says:
The Courts Guidelines for Independent Children’s Lawyers, provide guidance on meeting with and obtaining the view of the child. The national ICL website provides resources and guides on the methods and expectations of ICLs when engaging with children. A comprehensive suite of resources for ICLs available on the national ICL website, are listed at the end of this Factsheet.
ICLs play a critical and valuable role in parenting matters. Legal Aid Commissions across Australia are responsible for ensuring that ICLs have the appropriate experience, skills and capabilities to discharge their duties. As the Fact Sheet emphasises, there are many resources that have been developed to support ICLs to meet and engage with the children they represent.
The steps taken by the ICL to discharge her statutory obligation to meet with X were appropriate and necessary ones. But just as the Court should not be asked to determine how the legal representative for a party should represent their client’s best interests, nor is it appropriate for the Court to be asked to determine how the duties of an ICL should be discharged. By extension, the Court should not be requested to interfere with or meddle in the way an ICL chooses to engage with the child they are representing, provided that their engagement is proactive and in accordance with the Act.
CONCLUSION
Accordingly, having heard from the parties and considered the evidence, an Order will be made in similar terms to the ICL’s proposed Minute.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 29 May 2024
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