Vanders and Kyle

[2012] FamCA 351

FAMILY COURT OF AUSTRALIA

VANDERS & KYLE [2012] FamCA 351

FAMILY LAW - PRACTICE AND PROCEDURE – Application by mother to have Independent Children’s Lawyer removed – Application dismissed.

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

Lloyd & Lloyd & Independent Children’s Lawyer (2000) FLC 93-045
T & L (2000) FLC 93-056

APPLICANT: Ms Vanders

RESPONDENT: Mr Kyle

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 37 of 2011

DATE DELIVERED: 19 April 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 19 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mrs P Cope

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Cope Family Law

Orders

1. The mother’s application in a case filed 4 April 2012 is dismissed.

   IT IS DIRECTED

2. Each of the parties provide an authority by email or by post directed to the respective children’s schools to authorise the Independent Children’s Lawyer to obtain a letter from the children’s teachers.

3. The parties forward to the Independent Children’s Lawyer, within seven (7) days of the date of this order, a photocopy or a scanned copy of each of the children’s 2011 final reports.

   IT IS DIRECTED

4. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Vanders & Kyle is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 37 of 2011

Ms Vanders

Applicant

And

Mr Kyle

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings between Mr Kyle (“the father”) and Ms Vanders (“the mother”) in relation to their five children: P, aged 16, almost 17; R, aged 15; S, aged 13; J, aged 12; and B, aged 10, almost 11. The parties have been involved in litigation over a significant period of time. The current proceedings were commenced in the Federal Magistrates Court and were transferred to this court either late 2011 or early 2012 because of the complex nature of the proceedings. An independent children’s lawyer, Ms Cope, was appointed under Division 10 of the Family Law Act 1975 (Cth) (“the Family Law Act”).

2. This is an application by the mother for removal of the Independent Children’s Lawyer.  That application is opposed by the father and the Independent Children’s Lawyer.  It is not an issue that this is the end of or hopefully the end of a long period of litigation which the Independent Children’s Lawyer has been involved in one from or another for some time.

3. The parties had been involved in a previous proceeding, which was settled by consent.  I have been informed by the mother that the reason the matter was settled by consent was because one of her witnesses, a counsellor, died and she felt she had no option in that regard.  I make no finding either one way or the other in respect of that, except to note that contention by the mother.

4. The mother relies upon her affidavit filed 4 April 2012, and an affidavit of her husband, Mr Vanders, which was filed on the same day.  The mother appeared for herself, and at one stage during the course of submissions, asked if her husband could speak on her behalf.  I declined that request as I was concerned about a number of things:  firstly, that both parties are unrepresented, and that there should be an equality of approach, and to give one party two bites at the cherry, as it were, would not seem to be fair, although I gave her time at the end of the submission to confer with her husband and to make submissions following that conference.  I have had regard to all the material contained in the affidavits.

5. The law in relation to Independent Children’s Lawyer has developed over many years.  In the 2006 amendments, particular provision was made for the appointment of Independent Children’s Lawyers, and also in many ways defined the role of Independent Children’s Lawyers.  One of the submissions made by the Independent Children’s Lawyer was that a determination had been made that she was appointed.  It seems to me that it is open at any time, if there are appropriate circumstances, for an application to be made for removal of an Independent Children’s Lawyer.  However, any such application must be based upon facts, and must be in accordance with the law.

6. The Family Law Rules 2004 (Cth) set out in Rule 8, Part 8, that a party can apply for appointment of an Independent Children’s Lawyer, and a court can do so on its own motion. It is clear that there is provision for the removal of an Independent Children’s Lawyer in the correct circumstances. The Independent Children’s Lawyer has taken me to a number of cases, for which I thank her. The first was a first instance decision of Holden CJ of the Family Court of Western Australia in Lloyd & Lloyd & Independent Children’s Lawyer (2000) FLC 93-045. His Honour in that case set out in paragraph 11 the following:-

   Without attempting to be exhaustive, there are certain circumstances which, in my view, would lead to the Court to consider discharging a separate representative.  Some of those circumstances are: 

   (1)if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests:

   (2)if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;

   (3)if it is apparent that the separate representative has demonstrated a lack of professional objectivity, or

   (4)if to continue to act would involve a breach of fiduciary duty or a conflict of interest.

7. In that case, one of the complaints by the applicant was that the Independent Children’s Lawyer had acted in the past, and it was determined in that case in those circumstances that the removal of the Independent Children’s Lawyer ought not to be warranted.  Chisholm J in T & L (2000) FLC 93-056 discussed the removal of an Independent Children’s Lawyer in circumstances somewhat different to this one. However, at paragraph 54, his Honour observed:

   At least in general, then, it seems that the critical question in considering an application to remove a child’s representative is whether the representative is likely to carry out his or her task properly.  It is not necessary to attempt to state generally the circumstances that might cause the Court to find that child representative is unlikely to do so.  Given the issues in the present case …

8. He went on to make some findings.  In this case, it seems to me that my task is to analyse and consider the objections made by the mother in relation to the Independent Children’s Lawyer.  I note that in her response the mother said that the Independent Children’s Lawyer had not done anything wrong, and that if the Independent Children’s Lawyer personally were removed at this stage, it would either need the trial to proceed on the basis that there is no Independent Children’s Lawyer, or would involve a delay to enable another Independent Children’s Lawyer to be appointed, and it is clear that the mother and perhaps the father do not want that course to occur.

9. It is the view of the mother that the Independent Children’s Lawyer ought to be removed, and that the case proceeds in the absence of an Independent Children’s Lawyer.  Her case in that regard is, in essence, set out in her letter of 22 March 2012, which is annexed to her affidavit.  The first is that there is a conflict of interest, that the Independent Children’s Lawyer was the Independent Children’s Lawyer in past Family Law proceedings, which were culminated in the consent order in March 2006.

10. Her view is that the impact of those proceedings may have a subconscious or an implied impact on the way in which the Independent Children’s Lawyer will deal with this matter.  I am not satisfied, on the material before me, that that is the case.  I note that the Independent Children’s Lawyer has stated and continues to state that her approach is, as best she can manage, a balanced and non-partisan approach.  From the material I see, so far that seems to be the case.  Of course, an Independent Children’s Lawyer must understand the nature of the conflict, and will sometimes reflect upon the cases of each of the parties so that she can understand the circumstances in which the interests of the children need to be determined.

11. The second issue raised by the mother is the question of family violence.  She raised that in her letter, in a non-specific way, and raised it in a slightly more specific way in her submissions.  The question of family violence is something to which I am obliged, and I would, in any circumstance, have had regard to.  It is open for the mother to raise those issues if appropriate in the context of the hearing.  And a court will, of course, have to have regard to questions of family violence, and will have regard to those issues.  I am not satisfied on the material that there is evidence that the Independent Children’s Lawyer has acted in a cursory way in respect of that issue.

12. The next point raised by the mother is systems abuse.  It is likely that the children in this case who have been involved in litigation over such a long period may be subject to systems abuse.  As far as I am aware, there was nothing to occur with the children between now and the commencement of the hearing.  The allegations of systems abuse made by the mother appeared to be that in the past.  There is little I can, of course, do about the past.  What I can do, of course, is to try and put in place orders at the conclusion of the hearing which will hopefully avoid further conflict, and avoid further unnecessary interviewing of the children.

13. The next point raised by the mother is that the Independent Children’s Lawyer is losing the trust of the children.  I have had a look at the material raised in the affidavit of the mother to which I alluded to earlier, and I have had a look, as part of that, as to the comments made by the Independent Children’s Lawyer.  The Independent Children’s Lawyer has adopted a view that she ought not, it seems, to meet with the children on a regular basis because of the nature of the conflict.  That is a position which is reasonably open to her, and I can consider that, as can she, in the light of all the proceedings.  I am not satisfied that this is, in the circumstances of the facts presented to me, a basis for discharging the Independent Children’s Lawyer.

14. The timely resolution of proceedings is another basis upon which the mother complains that the Independent Children’s Lawyer has, in some form, escalated the proceedings and brought it out to be legalistic.  I have noted the comments of the Independent Children’s Lawyer contained in her letter of 30 March, and there are serious issues to be determined.  How they will be determined will be a matter for me at the end of the trial, but there are apparently allegations of sexual abuse, allegations of domestic violence, allegations of abusive behaviour by the paternal grandfather, exposure of the children to domestic violence, and allegations that the mother was coaching the children.

15. These are allegations.  Some may have some substance, some may have no substance.  It is a matter for me to determine at the end of the proceedings.  The mother also raises, in the context of that, the timely resolution of the proceedings and the length of time this matter will take before hearing.

16. I have not had conduct of this matter for a long time. I was informed that the matter needed a hearing, and I allocated a time for the hearing of this matter, and I allocated a time that was suggested by the Registrar and the Federal Magistrate, having regard to the submissions of the parties. But I make it clear that this matter will be dealt with under the Division 12A of the Family Law Act and in doing so, and in considering how evidence will be called, and how the case will run, I will have these principles in mind.

17. The first principle is that I will consider the needs of the children concerned and the impact of the conduct of the proceedings on the children.  Secondly, I will actively direct, control and manage the conduct of the proceedings over those days.  Thirdly, I will, as best I can, conduct the proceedings that will safeguard the children against family violence, child abuse, and child neglect, and safeguard the parties from family violence.  Further, I will conduct the proceedings as far as is possible in a way that will promote cooperative and child-focused parenting by the parties.  Finally, I will conduct the proceedings in a way to avoid undue delay and with as little formality and legal technicality and form as possible.

18. That is how I intend to conduct the proceedings.  Once I have read all of the material before the trial, I will conduct it on that basis.  If it is humanly possible, I will try and have this trial concluded in far less than seven days.  But at the same time, it is my task to ensure that the best interests of the children are taken into account.  And to that end, I will try and have before me all relevant and cogent evidence in that regard.

19. I will have regard to the age and maturity of all of the children, as I am obliged to do under the Family Law Act. I will have regard to the views of the children, particularly the elder children. So in terms of the timely resolution of the proceedings, I will, using my best endeavours, and hopefully with the assistance of the parties, and I know with the assistance of the Independent Children’s Lawyer, do so as efficiently as possible.

20. Unfortunately the reality is that high conflict cases damage the relationship between children and their parents.  This is at the pointy end of this application.  There is, from what I have read so far, clear conflict between the parties, and it is endemic long-term conflict which has no doubt impacted upon these children.  I will, in determining how the case runs, and determining the case, try and put in place arrangements which will meet the best interests of the children and try and do as little damage as can be done in all of the circumstances to their relationship with both of their parents and with each other.

21. I am not satisfied, on the evidence before me, that this is a matter where I ought to discharge the appointment of the Independent Children’s Lawyer.  This will be a complex case.  Part of my task will be, from time to time, to inform the parties as to how the process runs.  It is not my task to provide legal advice to the parties, but it is my task to ensure that they are as best as can be in the circumstances informed as to the running of the hearing.

22. Complex hearings in relation to children are some of the hardest matters to determine.  Clearly for the parents in this case, and perhaps, no doubt, for me in the future, I am generally assisted by an Independent Children’s Lawyer.  In this case, I can see no reason, on the material before me, why there ought to be any difference in these particular circumstances.  Accordingly, I dismiss the application by the mother.

23. In doing so, I have to consider the benefit of the children having a meaningful relationship with both of their parents.  In considering whether they have a meaningful relationship, I need to protect the children from physical or psychological harm, or from being subjected or exposed to abuse, neglect, or family violence.  That is often the tension in these cases.  The benefit of a child having a relationship with one or both parents and the need to protect the children from harm, whether that’s physical, psychological, or neglect.  In doing so, I must have regard to the views expressed by the children, particularly having regard to their age and maturity.  I have to look at, that’s the third one, the views of the children.  The fourth one is the nature of the relationship between the children and each of their parents, and any other significant persons.  The next one is the willingness and ability of each of the children’s parents to facilitate/encourage a close relationship between the children and the other parent.  The next one is the likely effect of any changes on the children’s circumstances in regard to any order I make.  The next one is the practical difficulty in expense in the arrangement of parenting.  The next one is the capacity of each of the child’s parents, and any other person, such as in your case.

24. I also have to look at the maturity, sex, lifestyle, and background of the children and their parents.  I have to look at whether the children are of Aboriginal or Torres Strait Islander descent, and the culture in that respect.  I have to look at the attitude to the child and the responsibility of parenthood demonstrated by each of the child’s parents.  I have to look at family violence and any family violence orders.  I have to look as to whether it would be preferable to make an order that would least likely lead to the institution of further proceedings.  And I add here this Court well recognises that the proceedings themselves are often damaging for children.  I must also look at any other factor or circumstance that I think is relevant.  Finally I have to look at what has happened since separation, and they’re set out in section 60CC(4)(5), and (6).

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 19 April 2012.

Associate:     

Date:              17 April 2012