Vale and Vale (No 8)

[2016] FamCA 992

FAMILY COURT OF AUSTRALIA

VALE & VALE (NO 8) [2016] FamCA 992

FAMILY LAW – PRACTICE AND PROCEDURE – where the child seeks to intervene in the proceedings and to appoint her own legal representative – where the child seeks that the current Independent Children’s Lawyer is discharged – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth))

APPLICANT: Mr Vale

RESPONDENT: Ms Vale

INTERVENOR: Secretary, New South Wales Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 15 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ulbrick, G & D Lawyers

RESPONDENT: No appearance

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: New South Wales Crown Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. The Application in a Case filed on behalf of the child, B, on 3 November 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale (No 8) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7455 of 2012

Mr Vale

Applicant

And

Ms Vale

Respondent

And

New South Wales Department of Family and Community Services

Intervener

And

The Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. There is before the Court an Application in a Case filed on 3 November 2016 supported by an affidavit, on the face of it, sworn by B (a child of the parents who are parties to these proceedings) on 31 October 2016.  The Application in a Case filed 3 November 2016 seeks an order that B, to paraphrase it and adopt its terms, have her own legal representation and be able to appoint her own solicitor who she can instruct, because, to quote the contents of the application, she is 15 and has the maturity to do so.

2. Additional relief sought in the Application in a Case is that the current Independent Children’s Lawyer be discharged from representing B’s interests in any way, and that the Court give the solicitor - which I take to be a reference to a solicitor sought to be appointed by B - adequate time to become aware of the facts of the case.

3. After the filing of the Application in a Case on 3 November 2016 it appears that a further two documents - in the form of an Application in a Case and a further supporting affidavit from B – were sworn or affirmed by her on either 10 November 2016 or, insofar as the affidavit is concerned, on 31 October 2016.  Those documents have collectively become Exhibit 3 in the proceedings.

4. Reference to the Application in a Case constituting part of Exhibit 3 reveals that B seeks orders, again, to have leave to have her own nominated legal representative, that the current Independent Children’s Lawyer be discharged on the basis of an assertion that there is some conflict of interest, that a person who is said to be B’s nominated solicitor - who is identified by the name Ms M - be able to file a Notice to Act on B’s behalf, that the hearing of the matter be heard as a matter of urgency to allow for filing and that she appear by phone in the office of Ms M and be part of the proceedings, that this is said to be:  “In line with Article 12 of the Convention of the Rights of the Child”.

5. It is clear that under the Family Law Act 1975 (Cth) a child has standing to be a party to proceedings in which parenting orders are sought. It is also clear, as a consequence of Rules made by the Court - namely, in particular, Rule 6.08 of the Family Law Rules 2004, that, as is provided for by subsection (1) of that Rule:

   A child may start, continue, respond to, or seek to intervene in a case only by a case guardian.

6. The application of B has not been made by any person identified as being her case guardian. There is, thus, non-compliance with Rule 6.08(1) of the Family Law Rules 2004.

7. Whilst sub-rule (2) of 6.08 of the Rules provides that: “Sub-rule (1) does not apply if the Court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case”, there is no evidence before me, in my view, to satisfy both of those necessary prerequisites. 

8. There is, in my view, evidence before the Court which contains the expressed wishes of B as expressed by her to a number of different people on different occasions and in a number of different formats and forums and manner.  Any concern, therefore, that the Court is deprived of the opportunity to receive evidence about B’s wishes vis-à-vis her future parenting arrangements would be misplaced.

9. Whilst it may be arguable in the context of the case - given the contents of those communications made by B to various people on various occasions - that she understands the nature and, perhaps, the possible consequences of the case (at least in a practical sense) there is no evidence before me that she would or could be seen as being capable of conducting the case in the sense of “capable of conducting” litigation in which she would seek to be a party in the proceedings that are between her parents.

10. The application also needs to be seen in the context of Ms Vale’s earlier unsuccessful application for an order appointing what was described in the relevant Application in a Case as a separate representative for the children and her earlier unsuccessful application for them to be witnesses in the proceedings, if they so choose, and to be made available for cross-examination similarly.

11. I consider that the objects of Part VII are clear.  The Court’s obligation is to conduct proceedings - as is made clear by sections which specifically deal with the conduct of child-related proceedings - in a manner which seeks to protect children from the risk of abuse.

12. In the circumstances of this case it may, in my view, be arguable that to permit at this late stage in the circumstances which have arisen - which have included B’s admission to hospital and recent discharge from the same - would be seen as falling within the category of exposing her to a form of emotional harm and/or abuse.

13. As I have already said, it is clear to me that her views and wishes have been expressed to a number of people.  It is also clear to me that her views and wishes will be before me and will no doubt be the subject of submission and further consideration during the course of the hearing.

14. In circumstances where I cannot be persuaded of the necessary prerequisites (as identified in Rule 6.08(2)), and where there is no application brought on B’s behalf by a case guardian (as is required by the Rules) and where there are no contact details provided in relation to the person who was said to have been selected to act on her behalf and where there is no formal application by that person seeking to place before the Court appropriate evidence (if it is sought to have Rule 6.08(2) apply), I am not persuaded to accede to the Application in a Case filed on 3 November 2016.

15. In addition, the application is, in my view, brought so close to the commencement of this proceeding that, if it were to be acceded to, it is highly likely that these proceedings would have to be adjourned.  As I have repeatedly emphasised, such a course is not, in my view, in the best interests of either B or her brother. 

16. For those reasons, the Application in a Case filed 3 November 2016 is dismissed.

17. Having regard to s 100B(1) of the Family Law Act 1975 (Cth): it seems to me that the affidavits sworn by B were sworn in support of an application to seek to become a party to the proceedings and in that sense, are confined for that purpose only, unless there had been an order made allowing her to swear an affidavit for other purposes - namely, the purpose of the trial.

18. That not being the case, then I am persuaded that the appropriate course is simply to regard those two affidavits as being relevant only to the Application in a Case filed 3 November 2016 and the application that forms part of Exhibit 3. I do not propose, therefore, to take them into account during my consideration of the evidence relevant to the final parenting orders to be made in the children’s best interests.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 November 2016.

Associate:                 

Date:    15 November 2016