WALLIN & WALLIN
[2020] FamCA 774
•27 August 2020
FAMILY COURT OF AUSTRALIA
| WALLIN & WALLIN | [2020] FamCA 774 |
| FAMILY LAW – PARENTING – where father brings a parenting application three years after final parenting orders – whether new facts and changed circumstances necessitate a fresh investigation to safeguard the best interests of the children. FAMILY LAW – PARENTING – application to re-open a parenting case – relevant considerations. FAMILY LAW – PARENTING – Family Report – views of children. |
| Family Law Act 1975 (Cth) |
| Freeman & Freeman [1986] FamCA 23 Harvey & Harvey [2018] FamCA 516 Re D (A Child) [2019] UKSC 42 Rice & Asplund (1979) FLC 90-725 Bryce & Bryce [2020] FamCA 653 |
| APPLICANT: | Mr Wallin |
| RESPONDENT: | Ms Wallin |
| FILE NUMBER: | MLC | 10946 | of | 2014 |
| DATE DELIVERED: | 27 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 27 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Ingleby |
| SOLICITOR FOR THE APPLICANT: | Gadens Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
I allow the father’s Application in a Case filed 12 August 2020 so that the said Application, the mother’s Response thereto filed 24 August 2020 and the affidavit filed by each parent in support of the Application and the Response are evidence in the parenting proceedings.
Pursuant to section 62G(2) of the Family Law Act 1975 a Family Report be prepared to assist the Court to determine whether there has been a sufficient change in circumstances to warrant the court again determining proper parenting arrangements for the children X born … 2006, W born … 2007, Y born … 2008, and Z born … 2009 (“the children”).
The parties and the children attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report. The parties comply with all reasonable directions as to attendance by himself/herself and the children upon the said Family Consultant. In the event that the assessment (or any part thereof) is conducted by video conference, any recording of the video conference is prohibited.
The Family Report be commenced as soon as practicable and be released by not later than 26 October 2020 AND IT IS NOTED THAT a report was prepared by Dr B in February 2015 and also on the file are reports of Dr C filed 9 December 2015, 21 November 2016 and 16 January 2017.
The Family Consultant give the court a report on the following:
(a) Whether the circumstances of the children (or any of them) are such that the court should re-consider all parenting arrangements contained in the Order made on 28 February 2017;
(b) Whether the circumstances of the children (or any of them) are such that the court should re-consider any particular or isolated aspect of the parenting arrangements contained in the Order made 28 February 2017;
(c) The views of each child in relation to:-
(i)His/her current parenting arrangements;
(ii)Further litigation between the parents in relation to parenting arrangements –
unless it would be inappropriate to do so because of a child’s age or maturity or any other circumstance including, but not limited to, the likelihood of the children (or any of them) being made to feel responsible for the outcome of the proceedings or the disappointment or otherwise of the parents (or either of them).
(d) What can be done to shield the children (or any of them) from the negative impact of high parental conflict;
(e) Any other matter which relates to the care, welfare or development of the children (or any of them) that the Family Consultant considers ought to be brought to the attention of the Court.
For the avoidance of doubt the Family Consultant, be and is hereby authorized to have reference to:-
(a) all documents filed in these proceedings;
(b) any documents produced on subpoenae and released for inspection by all parties;
(c) any documents or things referred to in this Order.
This matter be adjourned to a date to be fixed approximately two weeks after the release of the s 62G(2) report provided for in this Order, or so soon thereafter as I am reasonably available, for the purpose of hearing any cross examination of the Family Consultant and submissions on how the evidence of the Family Consultant should inform my decision on the Rice & Asplund issue.
Any party who seeks to cross examine the Family Consultant on the adjourned date notify my Associate – ... and Child Dispute Services – ... - accordingly not later than two clear working days following the release of the S62G(2) report.
IT IS DIRECTED:
That my reasons for decision this day be transcribed and, when settled, a copy be provided to the parties and the original be placed on the Court file.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallin & Wallin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10946 of 2014
| Mr Wallin |
Applicant
And
| Ms Wallin |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The proceedings concern four children – X who is 14, W who is 13, Y who is 12 and Z who is 10. Today the father makes application to re-open a case which was been argued before me and in which my decision is reserved. He does so for the purpose of adducing further evidence. On a preliminary basis the mother opposed the re-opening and the father being able to adduce further evidence. These reasons explain why the father’s application will succeed and why I have ordered that a Family Consultant provide social science evidence and ascertain the perspective of each individual child to assist me in determining whether there are new facts and changed circumstances which necessitate a fresh investigation by the Court to safeguard the best interests of the children.
Procedural history
After protracted proceedings, a number of social science reports, mediation and negotiation, final parenting orders were made in relation to the children on 26 February 2017 (‘the Order”). The Order provided for the children to live in the primary care of the mother and to spend time with the father. It provided for the eventual relocation of the mother’s household, including the children, to Melbourne. That relocation has occurred. The mother’s household is in D Street, F Town. The father still resides in the area of J Town.
On 18 October 2019, the father filed an application seeking parenting orders which would have the effect of W and Z moving back to J Town to live with him and the girls continuing to reside with the mother in F Town. The father asserts that the boys have not settled in their new location and that W’s “adjustment issues” are putting his scholastic performance at risk. The mother’s position is that the father sees what suits him (my words) and has encouraged a sense of unhappiness in the boys in relation to their new circumstances, instead of supporting the family’s transition back to Melbourne as was agreed in 2017. The mother opposes the father’s new parenting application on the basis that there has been no sufficient change of circumstance since 2017 to warrant a re-litigation of the parenting matter.
The proceedings came before me in the Judicial Duty List on 11 December 2019 when the parties requested that I take written submissions. Those submissions were filed by the mother on 13 March 2020, the father on 26 March 2020, the mother in reply on 9 April 2020
On 22 May 2020, I heard arguments supported by the written submissions on whether the threshold test in Rice & Asplund (1979) FLC 90-725 had been met. That is, whether there had been a sufficient change of circumstances since the Order to warrant the Court permitting further contested parenting proceedings, with all the emotional and financial expense such proceedings would entail, with a view to granting a variation of the most recent order.
The written submissions by counsel were succinct and well drafted, and oral submissions were helpful. It was agreed that W (13) was the most vulnerable of the four children for reasons including his learning difficulties. The father’s proposes to split the children. He seeks to assume primary care of W (13) and Z (10) who would live with him in J Town whilst the girls, X (14) and Y (12) would live in F Town with the mother. The mother contends that, by virtue of extracurricular commitments, the father’s suggestion that the children could spend regular weekend time together during school terms, is illusory. As I understand it, the mother says that the father’s divisive behaviour is the single greatest cause of any adjustment difficulties the boys may be experiencing.
The parents were represented throughout the contested proceedings and on 22 May 2020. Today the mother represents herself. My recollection - and I have not had the benefit of looking back over my notes – is that the parties had together spent something in excess of $1.25 million on legal fees in 2017. In the lead-up to the hearing in May 2020, each had spent in excess of $50,000. Today neither could say with precision what they had spent since May 2020.
Rule in Rice & Asplund (1979) FLC 90-725
I will mention a few basic points in relation to Rice & Asplund (1979) FLC 90-725.
In the 1979 decision of Rice & Asplund from which the rule now takes its name, the Full Court stated the following:
The Court should not lightly entertain an application to reserve an earlier custody order. To do so would be to invite investigation for changes – an ever-present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that there is some changed circumstance which would justify such a serious step – some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The facts in Rice & Asplund are fairly instructive of its application. A final parenting order was made in October 1975 granting custody of a three year old girl to the father. Approximately nine months later, the Court allowed the mother’s application for a variation of the Order which reversed primary care of the child to her, with reasonable access to the father. The father appealed. In dismissing the father’s appeal, the Full Court found that the trial judge had correctly approached the issue on the basis of a need to establish a significant change of circumstances, that the judge listed the factors which he considered relevant to the issue, and they included that the wife had, since the first order was made, stabilised her accommodation, married her partner (who was Mr Asplund) and that the child were commencing schooling, which of itself made the previous orders for spend time unworkable and unrealistic.
In this matter, the Order was made in terms sought by the parties. The rule in Rice & Asplund applies notwithstanding that the Order was made by consent.
The rule is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable result from the re-exercise of a discretion. The purpose is to protect children from the disruption and uncertainty of serial litigation. In cases subsequent to Rice & Asplund, the Court has confirmed that the rule operates to protect the child based on its best interests not being served by repeated applications to vary orders. Justice Strauss in Freeman & Freeman [1986] FamCA 23 discusses this:
…Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. For these and like reasons the Court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously. The Court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing. Cf. McManus v. McManus (1969) 13 F.L.R. 449; Rice v. Asplund (1979) F.L.C. 90-725; Hayman v. Hayman (1976) F.L.C. 90-140 at 75,679-680.
The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the Court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the Court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being. Another important reason for approaching with some care an application to over-turn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be over-turned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Accordingly, a balance has to be struck between protecting the child from the effects of ongoing litigation and secondly ensuring that where circumstances have changed, which may have a bearing on the best interests of a child or children, a fresh assessment of those interests is made. It is also clear from successive case law that threshold tests need not be applied at the very commencement of the new set of proceedings and can be applied at any stage of those proceedings – even following a full hearing.
The further evidence sought to be adduced by the father is that, since 9 August 2020, W has been residing in his primary care and spending each alternate weekend with his siblings in the mother’s home. The mother agrees that on 9 August, W went to reside with the father with her agreement for a limited time and for reasons which she sets out in her affidavit sworn 24 August 2020, as follows:
7. In accordance with the Final Orders, the children have continued to live with me and spent time with Mr Wallin. I have deposed in my previous Affidavits to Mr Wallin’s poor conduct and how that has had an effect on the children, especially W. Regrettably, Mr Wallin has continued to denigrate me, the children’s lives in Melbourne, and their school, H School, to the children. This has had a particularly impact upon W.
8. Throughout the government lockdown in April, May and June, the children attend school remotely. They continued to live with me and spend time with Mr Wallin in accordance with the Final Orders.
9. In July 2020, W’s behaviour deteriorated. With all the children currently learning from home, I was concerned W’s moodiness would have a detrimental effect on the other children’s ability to concentrate on their school work. I have tried to facilitate W continuing to attend his psychologist at G Psychology. Due to COVID-19 the psychology appointments have moved online and W has told me he does not think the online sessions are beneficial.
10. Throughout these proceedings, Mr Wallin has alleged that W has told him on several occasions that he wishes to move to live with Mr Wallin in J Town, given W’s recent behaviour I offered for W to live with Mr Wallin in J Town for the remainder of Term 3, being a period of approximately 6 weeks. W told me that he would like to try this but that he wants to be able to move freely between the houses during this period and does not want to confined to J Town. As the children are continuing to learn remotely, I thought it was an appropriate time for W to spend time with Mr Wallin at J Town. The current situation brought on by COVID-19 present a unique opportunity for W, or any of the children, to spend some time in J Town whilst still attending H School. I have asked the other children whether they wish to have the same arrangement as W. They have declined.
11. On 6 August 2020, I instructed my former solicitors, K Lawyers, to write to Mr Wallin’s solicitors, Gadens Lawyers, putting forward a proposal for W to live with Mr Wallin for the remainder of Term 3 commencing 7 August 2020. I made it clear that Mr Wallin would need to facilitate W’s online learning with H School. I also made it clear that I did not agree for the arrangement to continue past Term 3 and put a proposal for changeovers to ensure that all children get to spend time with each other over the next 6 weeks and that W also continues to spend time with me. The letter specified that once the children returned to campus learning, I expected the children, including W, to live with me and spend time with Mr Wallin in accordance with the Final Orders.
[…]
12. On 6 August 2020, my solicitors received correspondence from Mr Wallin’s solicitors confirming that he agree for W to live with him in accordance with my proposal.
13.On the evening of 6 August 2020, I told W about my proposal for him to live with Mr Wallin for the remainder of Term 3. I told W that I had suggested that the arrangement commence the next day. W became tearful and told me that he did not want to leave my car on 7 August 2020 and wished to stay with me and the other children for the weekend.
[…]
16. On 7 August 2020, I instructed my solicitors to write to Mr Wallin’s solicitors accepting Mr Wallin’s proposal for changeover to occur on 9 August 2020, save and except making it clear that changeover would occur at 5.00pm, rather than 3.00pm. Since 9 August 2020, W and I have remained in contact when Mr Wallin has permitted him to call me. I understand from H School that W’s attendance to submitting his schoolwork has slipped since the changed living arrangements.
17. I do not accept that W’s current living arrangements ought to be taken into consideration in determining the Orders sought by Mr Wallin in his Initiating Application filed 18 October 2019. W’s current living arrangements are for a temporary period and have only been brought about because of COVID-19. I do not consent to W living with Mr Wallin in J Town beyond Term 3.
The father was fairly quick off the mark with his application to adduce the further evidence. Nonetheless, today the mother and the father, through his counsel, confirm that it is common ground that W will be returned to the mother’s care on 11 August 2020.
Re-opening a parenting case
Generally, the test for reopening a case is whether or not it is in the interests of justice to do so – that is, whether the interests of justice are better served by allowing an application to adduce further evidence, or by rejecting the application. There are certain subtests to the reception of further evidence.
a)It should be evidence which, if accepted, would most probably affect the result of the case;
b)It should be evidence which, with reasonable diligence, could not have been discovered at the time; and
c)The Court must consider the prejudice which will be suffered by the other party if the further evidence is admitted.
In parenting cases, of course, the overriding principle is what is in the best interests of the child, because that is the paramount consideration procedurally and also substantively. Significantly, in the context of Rice & Asplund, I cannot quarantine or disregard relevant evidence because of its time line. I must have regard to the circumstances as they exist at the date of the hearing, rather than the date that the application was made. When I say the date of the hearing, the hearing includes all of the time up until when my judgment is delivered. It follows that, as I reserved my decision on 22 May 2020, I do need to have regard to developments in relation to the children which are relevant and which occurred after 22 May 2020. Accordingly, the father’s application to adduce further evidence must succeed if the evidence is relevant.
I am not of the view that the further evidence which is sought to be adduced will likely affect the result of the case, but I do find that it is pertinent. I am satisfied that it is relevant that W has had a brief stint of living with the father during the unusual conditions of the pandemic. The mother’s agreement to the temporary change could, for instance, support a finding that the mother is flexible and permitting of alterations to the parenting arrangement when there is a genuine need for them to be altered (but not otherwise).
Having heard the legal position, including the fact that I must take into account all circumstances as they exist up until the conclusion of the final hearing and/or the delivery of my decision, the mother does not seek to be heard in opposition to the father being able to adduce the further evidence contained in his affidavit. It goes without saying that the mother’s evidence contained in her affidavit also goes in.
I will allow the father’s application to re-open his case and adduce further evidence to which the mother has already responded. The parties did not seek to cross examine the other.
S62G(2) Family Report
This brings me to what is going to happen to the substantive aspect of the hearing. When I heard the matter on 22 May 2020, I did so after having read the extensive material which had been filed by the parents since 2019. Conspicuously, that did not include any of the social science reports which had been commissioned by the family for the proceedings which were concluded in 2017. My recollection is that that included at least one report from the late Dr B, a private Family Report writer, and one or two reports from Dr C, also a private Family Report writer. Both were psychologists and both were commissioned directly by the practitioners for the parties. I did not read those reports because I was not requested to have regard to them to inform the exercise of my discretion.
When the matter proceeded before me, it was the joint position of the parties that the earlier social science evidence would not assist me in determining whether or not there had been a sufficient change of circumstances, because not much of that social science evidence was actually relevant to the situation which pertained immediately prior to the Order being made in February 2017 or the reason why the orders were made in 2017 and the terms agreed to by the parties. I accept that is the case. Nonetheless, I have not had the benefit of the social science perspective on the manner in which the parents present individually and how they relate to one another. It is clear that this is a case of extreme high parental conflict but I have no social science perspective on who is the dominant perpetrator or how best the children can be insulated from the negative impacts of the conflict, if they can be insulated at all.
RECORDED: NOT TRANSCRIBED
In May 2020, I had formed the view that there should be a Family Report targeted to whether new litigation was justified, particularly having regard to the limited outcomes available through litigation. I also formed the view that the extent of the conflict between the parents was so high that it was preferable that the parents and the children be informed of the decision in relation to the report as close as possible to the assessment interviews for the report. At that stage, the earliest report obtainable was in the first half of September 2020 and that Family Report assessment time was duly reserved. Unfortunately, the Family Consultant to whom the report was allocated, has recently left the Registry and that report was not allocated to any other Family Consultant until the issue was raised by my Chambers on receipt of the father’s application to admit the further evidence. With a shifting of matters and according this matter priority, the earliest that a Family Report can be done by a Family Consultant of this Court is to have assessments on 6 October 2020, so that will be what occurs. It is likely that the report will be done electronically. Certainly, as far as any assessment interviews of the parents are concerned, if the report writer considers that it is feasible and possible, there may be a face-to-face assessment of the children but that will be a matter entirely within the discretion of the Family Consultant at the time.
It is important the parents observe the requirements for the children to be able to speak privately with the Family Consultant. It will also be prohibited for any party to take any recording of any part of the assessment interview process.
I will make the usual order for a report, pursuant to s 62G(2) of the Family Law Act 1975 (“the Act”) to be commenced as soon as possible, noting that tentative assessment interviews have been appointed for 6 October 2020. Previous reports in this matter have been privately commissioned by the parties from the late Dr B and Dr C. Those reports can be read even though I did not read them. The Family Consultant can read anything on the file and any documents produced on subpoena and released for inspection. The written submissions may be productive reading inasmuch as they echo the ever recurrent nature of this family’s problems.
This Family Report will inform my assessment of whether there has been a sufficient change of circumstances or new facts have emerged since the Order was made in February 2017 to warrant the Court investigating again what is in the children’s best interests. This will, necessarily, involve an assessment of the impact on the children of the high degree of parental conflict which exists in this matter and the extent (if any) to which the children can be protected or shielded from the negative impacts of that conflict going forward. If they cannot be protected from this corrosive conflict, then a fresh investigation by the Court with a view to safeguarding the children may be futile. There is nothing to be gained from shifting deck chairs on the Titanic. The assessment will involve some social science analysis of why the father says that the children should be separated and the benefits and deficits of that proposal. Sibling relationships can be very important, solid sibling relationships will endure and can sustain individuals long after the parents’ authority and influence has waned.
Any further proceedings would have to carry with them the possibility of a better arrangement for the children. Having regard to the degree of parental conflict, a better arrangement is difficult for me to envisage from my current vantage point which is one of the reasons why I have found that it is necessary to augment the “evidence” of the parties with the insights of a Family Consultant who is an expert in childhood development and post separation parenting. I say “evidence” because much of what is said by the parties is opinion, conclusion and argument rather than facts.
Entrenched parental conflict has Phoenix-like qualities in that the conflict rises up so that, as soon as one lot of litigation is resolved, another attack is being planned consciously or unconsciously. That would not be a good outcome for X, W, Y and Z. However, if new facts and changed circumstances emerge which do necessitate a fresh investigation by the Court to safeguard the best interests of the children, then there can be further litigation.
Section 62G(3A) of the Act provides that a Family Consultant who is directed to give the Court a report must:
a)Ascertain the views of the child in relation to that matter; and
b)Include the views of the child on that matter in the report.
A person cannot require a child to express his or her views in relation to any matter (see s 60CE). Section 62G(3B) provides that s 62G(3A) does not apply if compliance would be inappropriate because of the child’s age and maturity or some other special circumstance.
Asking the children to express their “views” is an important part of our considerations but it also exposes children to the reaction of their parents to an extent which can be unfair and detrimental to the children vis a vis future treatment of the child by his or her parents, or his or her perception of authority figures and the ability to seek help and assistance. If the children are to be asked to express their views, they must be provided with a safe position from which to do so.
It is important that the children are accorded respect in this process. They are not chess pieces to be moved around by their parents or the Court. They are individuals upon whom the decisions of their parents and the Court has great impact. It is important that the children perceive that they are heard and listened to, but, at the same time, not responsible for the outcome or the disappointment of one or other parent or his or her siblings.
I hold to the views which I expressed in Bryce & Bryce [2020] FamCA 653 that, when parents are in conflict there can be only a fine line between having regard to the views of a child and exploiting the child’s view to support one parent’s position over the other parent’s position. This may sound harsh but evidence of children’s views is not material to be used at the convenience of the parents to support their respective cases and then disregarded. The views are not expressed in a vacuum, regard must be had to children’s views even after the litigation in which the views were obtained, has concluded.
There is a fine distinction between allowing the child to participate in the decision making process and leaving the child with a sense of responsibility for the disappointment one parent may feel with an outcome. There might appear to be only a small difference between failing to recognise a child as an independent person to whom respect must be accorded in proceedings, and trying to protect a child by excluding him or her from participation in proceedings – unless, of course, you are the child in which case these distinctions are pretty obvious.
Regard needs to be had to the period during which the child(ren) will have to deal with the consequences of the Family Report having been released to the parents. That is, the proximity of the assessment interviews and the report being released relative to the date of the hearing for which the report was prepared.
As I observed in Harvey & Harvey [2018] FamCA 516:
11.An important aspect of the Family Report will be to record and assess the views of each child. The children should know that their individual and collective views will be considered and not lost in the mire of their parents’ conflict. This includes taking account of their views and opinions in a dynamic sense, not only when the views conveniently support a party’s proposal or to just tick off one of the numerous additional considerations which we are required to take into account when making a parenting order.
12.As Lady Hale (as she then was) said the following in an early international case, Re D (A Child):-
[57] …As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. […]But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.
Parenting proceedings have a developmental impact on children of certain ages, such as X who is 14, W who is 13, Y who is 12 and Z who is 10. Children model behaviour on how they are treated and what they observe adults do, most potently their parents. How we treat a child in family law litigation may well shape a child’s behaviour and values in later life and their attitude to and trust of authority, including at school, going forward.
Finally, s 62G(4) of the Act provides that the Family Consultant may include in the Family Report, in addition to the matters which I have mentioned, any other matters that relate to the care, welfare and development of each of all or any of the children.
The adjourned date will be fixed shortly after the report is published. The Family Consultant should be available for cross examination on the adjourned date.
This is a matter which would fall outside the guidelines currently imposed by Victoria Legal Aid for the appointment of an Independent Children's Lawyer. This lack of representation of the interests of the children is troubling. This is a case where it is important that the children’s interests are represented.
Given that there is no Independent Children's Lawyer, regardless of whether the parties require the Family Consultant for cross examination on the adjourned date, I will hear from the Family Consultant. Accordingly, if there is any information which is relevant but which the Family Consultant does not consider it is appropriate to include in the report, she will have an opportunity to inform the Court.
RECORDED : NOT TRANSCRIBED
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 August 2020.
Associate:
Date: 16 September 2020
0
2
1