WINGROVE & NADEL

[2018] FCCA 1840

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINGROVE & NADEL [2018] FCCA 1840

Catchwords:
FAMILY LAW – Parenting – appointment of an Independent Children’s Lawyer – orders made.

Cases cited:

Re K (1994) FLC 92-461

Applicant: MR WINGROVE

Respondent: MS NADEL

File Number: PAC 5048 of 2012

Judgment of: Judge Newbrun

Hearing dates: 26 June 2018, 5 July 2018

Date of Last Submission: 5 July 2018

Delivered at: Parramatta

Delivered on: 6 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Maddox

Solicitors for the Applicant: Manning Valley Legal & Conveyancing

The Respondent appeared in person

ORDERS OF 26 JUNE 2018

1. Within 28 days the mother shall file and serve a consolidated trial Affidavit setting out such relevant matters in support of her proposed final Orders set out in her Response filed 26 June 2018.

2. Within a further 28 days the father shall file and serve a Reply (addressing the mother’s proposed final Orders set out in her Response filed 26 June 2018) and trial Affidavit.

3. Pursuant to Section 68L of the Family Law Act 1975 (Cth) the child [X] born 2001 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.

4. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

5. Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

6. The proceedings are placed in the callover on 21 September 2018 at 9:30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5048 of 2012

MR WINGROVE

Applicant

And

MS NADEL

Respondent

REASONS FOR JUDGMENT

1. The following Reasons relate to the Court’s appointment of an Independent Children’s Lawyer (“ICL”) (made on 26 June 2018) in relation to the child [X] born 2001.

2. Unfortunately, these protracted parenting proceedings continue.

3. The mother in particular supports the appointment of an ICL.  The father supports an ICL being appointed. 

4. In her recent email to the Court (a copy of this email has been provided to the husband’s legal representatives), the mother makes strong representations for the child to have an ICL.  The mother, being legally unrepresented, by reference to this email, in effect feels that the child is at a disadvantage in these proceedings, and makes statements, inter alia, as follows:

I firmly believe we need fair chance to have a lawyer representing my daughter in court case rather than her mother who is constantly getting abused and accused in front of court. Court proceeding have become battlefield for my ex-husband anger, revenge and control towards me rather than our daughter well-being.

1. She further states,

   It seems like without the presence of ICL court will be misled to believe what my ex-husband wants which is to control me and our daughter. My fear is he wants to use these court order to file contravention orders and continue court proceedings as he has done in the past. My grave fear is he will use these court orders to show our daughter school and police so that they would be unable to protect her and he will get full freedom to harass and abuse her. We need ICL to represent and protect my daughter rights.

   …

   She does not want to have any form of contact with her father and court orders need to reflect that to safeguard her from any abuse and harassment. This is what it is and we need ICL to present them in the court. Without the presence of ICL it will not be possible and these court proceedings will be dragged for longer time.

   …

   This case has been going on for nearly 8 years and needs an ICL representation. Without legal representation our daughter would not have fair go in these court proceedings.

2. The outstanding parenting applications of the parties are as follows:

   a)The mother: see her Response filed 26 June 2018, in which she seeks final parenting Orders, inter alia, that the child live with the mother; that the mother have sole parental responsibility for the child; that there be no Order for the father to spend time with the child; that the father, his family and friends not approach, intimidate or threaten the child and her mother publicly via email, messages and phone calls; that the father be restrained from attending the child’s school, or any venues at which the child is participating in any activities, without the child’s express written consent; and that the mother be authorised to sign all documents necessary to cause passports or visas of any country to which the child needs to travel to be issued without the consent of the father.

   b)The father: his Reply filed 1 March 2018 firstly seeks final parenting Orders that Orders be made as sought in his Further Further Amended Initiating application filed 28 March 2017 (in that latter Application filed 28 March 2017, the father seeks Orders that the child live separately and in turn with either party of her choosing, for such periods of time with each as she so wishes; that each party have equal shared parental responsibility for the child; that the child spend time and communicate with the party with whom she is not currently living, as agreed between the parties, but that failing agreement, for such time as the child herself desires; that each party will keep each other informed of the contact details of the child’s school or any other extracurricular activity; and that each party shall be able to communicate with the child’s education providers and attend those school events to which the parents are being invited.

3. Secondly, in the alternative, the father, in his Reply filed 1 March 2018, seeks final parenting Orders as set out in Orders 2 and 3 of his Application in a Case filed 15 January 2018, providing that:

   2.That these proceedings be concluded by all Initiating Applications and Responses being hereby withdrawn …

   3.That no other orders are made in concluding these proceedings but a notation may be made: “It is noted that the father is aware that any future contravention application (if any) would be prone not to be dealt with effectively prior to when the child turns 18 years old.

4. The Court interpolates at this point that were the last mentioned proposed Orders to be made by the Court, that would effectively leave in place the parties’ consent Orders of 24 January 2006, inter alia, providing for equal shared parental responsibility; and that the child have certain contact with the father.

5. By reference to the decision of the Full Court of the Family Court of Australia in Re K (1994) FLC 92-461, at least the following criteria for the appointment of an ICL are established in these proceedings:

   a)There is manifest continuing hostility between the parties to the proceedings and there are allegations that the child is being used to hurt a party;

   b)There is a history of recurring resort to litigation over custody or access by either or both parents;

   c)There are allegations that the child is alienated from one of the parents; in this context, Re K states that an ICL may well perform the role of an “honest broker” as between the child and the parents;

   d)There are allegations of a child of mature years expressing strong views, the giving of effect to which would involve a complete denial of access to one parent;

   e)One of the parties is legally unrepresented.  In Re K the Court stated that when none of the parties are legally represented it is imperative that the child’s interest be protected as soon as is practicable after the situation becomes apparent.

   f)In Re K the Court stated that the “above categories of cases” were not intended to be exhaustive and there will be other situations where the appointment of a separate representative is necessary.  In this context, the Court states that an ICL would not only facilitate the child’s current views being placed before the Court (noting that the last Child Inclusive Memorandum to Court was some time ago in April 2016), but would also, in his or her capacity as “honest broker” between the parties, in relation to the child, potentially shorten the proceedings, or at least reduce the number of issues presently in dispute between the parties, and thereby minimise the risk of potential psychological harm to the child from being exposed to the inevitable stress that the parties will be subject to if the proceedings proceed to finality.  Further in this context, it is most important that this child, who will be sitting her Higher School Certificate in the very near future, not be subjected to any unnecessary stress arising from these proceedings, again noting that the mother is legally unrepresented and with whom the child presently lives.

6. The Court refers to the Reasons for Orders pro forma document in the Federal Circuit Court Notice of New Order for Independent Children’s Lawyer, and notes that the following reasons, in addition to the above matters, have been indicated:

   a)There are allegations of psychological child abuse;

   b)A notice of child at risk has been filed by the Respondent mother;

   c)There is an intractable conflict between the parents;

   d)The child is apparently alienated from one of the parents;

   e)The conduct of the parents is alleged to be antisocial to the extent that it seriously impinges on the child’s welfare;

   f)The child is of mature years and is alleged to be expressing strong wishes which support a complete denial of contact to one parent.

7. The Court respectfully requests the expedited appointment of an ICL to represent the child in these proceedings.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 6 July 2018