WOODS and GOODE

[2018] FCWA 95

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WOODS and GOODE [2018] FCWA 95

CORAM: O'BRIEN J

HEARD: 2 MAY 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 7587 of 2016

BETWEEN: MR WOODS

Applicant

AND

MS GOODE

Respondent

Catchwords:

PARENTING - Role of Independent Children's Lawyer in circumstances where evidence adduced by parties is inadequate - Where Respondent files trial affidavits which do not address relevant issues and then fails to participate in proceedings - Where orders made at early stage for drug testing but no request for testing made - Where appointment of single expert recommended at case assessment conference but not sought - Trial vacated - Interim and finalisation orders made

Legislation:

Family Court Act 1997 (WA) s 66, s 165

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Swann
Respondent	:	No Appearance
Independent Children's Lawyer	:	Counsel

Solicitors:

Applicant	:	Albany Legal
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	A Firm

Case(s) referred to in decision(s):

In the matter of P and P (1995) FLC 92-615

T & Anor v P & Anor (2000) FLC 93-049

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The proceedings before the Court concern the welfare of [Child A], who was born [in] 2010. Child A has been in the care of the father, who lives in [Suburb A], since October 2016, having come into his care in circumstances which are in dispute between the parties.

Background

2The proceedings were commenced in December 2016 when the father applied for and obtained a recovery order.

3The parties attended a case assessment conference on 5 May 2017. The independent children’s lawyer (“the ICL”) who had been appointed pursuant to orders made on 13 February 2017 also attended. The case assessment conference memorandum is in evidence. While it is unnecessary for the purposes of these brief reasons to summarise the content of that report in detail, it is sufficient to observe that significant issues were raised about drug use, alcohol abuse and family violence. Those issues were also raised in the information provided to the Court by the Department of Communities (“the Department”), which advised that the parties had a history with the Department since they were teenagers.

4Orders were made on 13 February 2017 requiring each party to undergo random drug testing upon request. The ICL indicated at the case assessment conference his intention to request drug screens. Issues were also raised regarding specific educational and therapeutic needs for Child A. Complex issues regarding family dynamics were identified as the mother’s younger child from a different relationship lived with her in [Suburb B], while her older child from another relationship lived in Suburb A. The father’s teenage son from another relationship lived with his sister and her partner.

5The family consultant concluded that it would seem that Child A had been at risk in the care of each parent at different stages in his young life. The consultant recommended that both parents avail themselves of consistent counselling to address their issues of addiction in order to minimise substance abuse becoming a risk factor for Child A and his half-siblings in the future. The report concluded with the following paragraph:

Given the complex nature of the concerns raised during this conference, it is recommended that a single expert be appointed to this matter to assess, among other issues, [Child A’s] attachment to his parents and other family members. Future mediation may be appropriate after a single expert report has been made available to the Court.

6After the case assessment conference, the matter was next before the Court on 12 May 2017. Interim orders were made by consent and largely remain in force. Otherwise, the matter was assigned to the defended list and a readiness hearing date of 8 November 2017 was allocated. The usual programming orders were made requiring the parties to file their trial affidavit material prior to the readiness hearing.

7Apart from an adjourned hearing for return of subpoenas on 19 May 2017, there was no further activity on the court file until late September 2017, where, with the assistance of the ICL, further interim orders were made by consent in relation to Child A spending time with the mother during school holidays.

8On 27 October 2017, the mother filed an affidavit. She also filed affidavits sworn by two witnesses, a minute of the orders she would propose to seek at trial and an undertaking as to disclosure.

9Unfortunately, the mother’s affidavits only addressed her version of the events which took place in December 2016 and which led to the making of the recovery order. They did not in any sense address the evidence necessary for the Court to properly determine what parenting orders might be in Child A’s best interests by reference to the primary and additional considerations set out in the legislation.

10The father did not file any documents prior to the readiness hearing as required by the orders which had been made.

11At the readiness hearing before a registrar on 8 November 2017, the mother having filed trial affidavits, and in circumstances where she sought to proceed, orders were made including the proceedings in the February Callover. While the father was represented by a solicitor at that hearing, it does not appear that any request was made for an extension of time within which he was to file his trial affidavit material, nor that any issue was raised by either party or by the ICL as to the adequacy of the evidence before the Court. Understandably, in circumstances where the issue does not appear to have been drawn to his attention, the presiding registrar did not give consideration to the issue of the adequacy of the documents filed by the mother.

12Further consent orders in relation to school holiday time were made by consent on 22 December 2017 in Chambers. The matter then proceeded to the callover on 16 February 2018, and was listed for trial before me to commence not before Monday, 7 May 2018.

The first status hearing

13At my direction, a status hearing was listed for 6 April 2018. The ICL, the mother and the lawyers then on the record for the father were all notified of that listing by mail in February. Other than a notice of ceasing to act filed by the lawyer previously acting for the father, no documents of any nature were filed between the callover and the status hearing.

14At the commencement of the status hearing, only the ICL was present.

15The Court was able to contact the father by telephone. He explained that his non-attendance was because he was unaware of the status hearing, his lawyer apparently not having informed him of it. I note in fairness to that lawyer that he had, in accordance with the Rules, included the date of the status hearing in the notice of ceasing to act provided both to his client and to the Court.

16Efforts were made both by the ICL and by the Court to contact the mother by telephone for the purposes of the status hearing, but those efforts were unsuccessful.

17At the commencement of the status hearing, I asked the ICL to update me as to the state of the proceedings. He indicated that the mother had filed her documents but that the father had not filed his, saying “we are really at loggerheads.” When I pointed out to the ICL that the mother’s documents did not address any of the issues which I needed to consider in determining the child’s best interests, he acknowledged that there would not be enough information before me to enable a decision to be made.

18When I asked what was being done about that, the ICL responded by saying “that’s the parties’ responsibilities”. He said that he had “tried to engage the parties to get involved in this matter”, saying that he could “lead a horse to water. [He] can’t make them do much more than that”.

19I asked the ICL whether he had sought funding for the appointment of a single expert. He said that he had not at this stage “because the parties had been so quiet”. I pointed out that the appointment of a single expert had been clearly recommended by the family consultant at the case assessment conference, which the parties and the ICL attended at an early stage of the proceedings. Even though the parties conducted the case as they have, had an expert been appointed in accordance with that recommendation, the Court might have had enough information to make a proper decision.

20I observed further that the most recent information from the Western Australian Police was from August 2017, and that the most recently subpoenaed information from Child A’s school was in November 2017. I asked the ICL whether he had sought to issue any subpoenas for the purposes of trial. He confirmed that he had not, as he was “hoping to see what was going to happen” at the status hearing.

21I inquired with the ICL as to whether any drug testing of either party had ever been requested pursuant to the orders made in February 2017 and his expression at the case assessment conference of an intention to do so. Initially the ICL indicated to me his understanding that drug testing had been requested. When I gave him an opportunity to review his file to confirm that, he was unable to do so.

22The ICL then properly acknowledged that he did not know whether drug testing had ever been requested or undertaken.

23Today, counsel for the father advised that on his instructions, his client had requested drug testing of the mother on a couple of occasions but never received any results. The father’s instructions were that he had never been requested to undertake any tests, and that he had no awareness of any requests from the ICL for either party to be drug tested during the course of the proceedings.

24As the first status hearing progressed, the father confirmed that he considered himself ready to go to trial. He said that he was in the process of getting all his affidavits together. He was under the mistaken impression that the affidavits were required to be filed 14 days prior to the trial date, when in fact they were required to be filed well in advance of the readiness hearing which took place some months prior.

25The position at the time of the first status hearing, accordingly, was that the only evidence before the Court from the father was the material filed when he initiated the proceedings in December 2016. The only evidence before the Court from the mother was evidence addressing a specific incident in December 2016. There was no evidence before the Court facilitated by the ICL other than potentially by the tendering of documents from the police and the school subpoenaed last year.

26In the circumstances, to try and give the parties the opportunity to retain the trial date, if at all possible, I made orders requiring each of them to file and serve by 20 April 2018 a single standalone affidavit representing their evidence-in-chief for the purposes of trial, and specifically addressing the current living circumstances of Child A, their proposals for his future care, and all evidence necessary to enable a proper consideration by the Court of the matters set out in s 66C of the Family Court Act 1997 (WA) (“the Act”).

27As both parties were at that time self-represented, copies of the relevant sections of the Act were forwarded to them with the extracted copy of that order. I also asked the ICL whether he had made any enquiries with Legal Aid of Western Australia (“LAWA”) about the possible provision of a late intervention alternative dispute resolution conference. He indicated that he had, but that he had not received a response from LAWA. He expressed surprise at the absence of a response.

28In response to a question from me as to when the inquiry was made, he indicated that it had been made at the end of March. He indicated that he would make further enquiries and I made orders to facilitate that.

29The proceedings were otherwise adjourned to this morning’s further status hearing to ascertain whether the trial date might still be salvaged.

Events since the first status hearing

30On 11 April 2018, the ICL sought the issue of a further subpoena directed to Child A’s school for the production of updated documents. That subpoena was issued as requested and listed to be returnable today. No documents have yet been produced by the school. That is hardly surprising given that the issue of the subpoena was requested two days before the commencement of the school holidays, which only ended two days ago.

31The ICL advised that he had made the necessary enquiry, and that LAWA had indicated that it was not prepared to fund the alternative dispute resolution conference at that stage, but would defer further consideration of possible funding, depending on the outcome of today’s hearing.

32The father filed a trial affidavit with the assistance of his now solicitors on 20 April 2018. He also filed papers for the judicial officer on 27 April 2018. His counsel confirmed this morning that both of those documents were served on the mother.

33The papers for the judicial officer indicate that in addition to the affidavit already referred to, the father proposes to rely at trial upon affidavits of five separate witnesses who are named in his papers. None of those affidavits have yet been filed, and I was advised by the father’s counsel this morning that their preparation is ongoing.

34The mother has not complied with the orders which I made and has not filed any further documents. She has not attended the hearing today. The ICL made efforts this morning to contact her by telephone, leaving messages for her, but has received no response. She has been called in the precincts of the court and is not present. My staff have also telephoned her to try and make contact, but have been unsuccessful. The ICL has told me this morning that he has tried, on several occasions, to contact the mother in recent times, prior to today, and that the last time he actually spoke to her was several months ago.

The present position

35Regrettably, the matter remains inadequately prepared for trial. The trial must be vacated.

36That said, the Court now, at least, has the benefit of updated (albeit untested) evidence from the father as to the current arrangements for Child A, which appear, on their face, to be satisfactory. The proposals of the father are, in effect, for a continuation of those arrangements, which reflect the interim orders presently in place.

37Specifically, he seeks sole parental responsibility for Child A, and that Child A live with him in Suburb A. He seeks orders whereby Child A would spend time with the mother every third weekend and for half of all school holidays, with undefined days of significance to be alternated annually. He proposes further that Child A have liberal telephone communication with the mother and that the parties be restrained by injunction from denigrating each other or discussing the proceedings within Child A’s earshot. He proposes that they contact each other in the event of a medical emergency when Child A is in their care.

38In all the circumstances, it is, in my view, appropriate to adjourn the proceedings, while granting the mother liberty to seek a relisting if she seeks to re-engage with the court process. Given the difficulties the parties have encountered, and that the mother is self-represented, I propose to hold open that liberty to apply for a period of two months, and make orders which will ensure that today’s orders are directly brought to her attention.

39I am satisfied, on the limited evidence before me, provided by the father’s trial affidavit, that it is appropriate otherwise to make a finalisation order so that if no request for a relisting is made in accordance with my orders within the specified time, final orders will be made, largely in terms of the father’s proposals, without the need for any further appearance.

40I record in that regard that it is abundantly clear from the evidence that there are grounds to believe that the parties or either or both of them have engaged in family violence, and that accordingly the statutory presumption of equal shared parental responsibility does not apply. I record further that I have considered, to the extent possible on the available evidence, the primary and additional considerations set out in the legislation.

41Importantly, the orders which are now proposed would represent a continuation of the current, apparently satisfactory, arrangements for Child A’s care.

The role of the ICL

42I propose, therefore, to make the orders which I have foreshadowed. Before I do so, however, I consider it appropriate to make brief observations about the state of preparation of the proceedings for trial, and the role to be played by the ICL in matters such as this.

43The role of the ICL is set out in s 165 of the Act. The Act mandates that:

165(2) The independent children’s lawyer must —

(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

(b)act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

(3)The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4)The independent children’s lawyer —

(a)is not the child’s legal representative; and

(b)is not obliged to act on the child’s instructions in relation to the proceedings.

(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.

44Significant responsibility for the conduct of the proceedings must still rest with the parties. It is appropriate for an ICL to have an eye to proportionality in expending limited Legal Aid funding, particularly in circumstances where parties do not properly engage. Nevertheless, the statutory responsibility to form an independent view as to what is in the best interests of the child based on the evidence available to him or her does not, in my view, permit the ICL to simply sit back and wait for that evidence to be provided or sourced by the parties. That is particularly so in circumstances where both parties are self-represented or, indeed, where one or either of them might appear to be inadequately represented.

45While s 165 of the Act was only inserted into the legislation in the 2006 amendments, the concept is nothing new.

46Pidgeon J of the Supreme Court said this in T & Anor v P & Anor (2000) FLC 93-049 at [55]:

“The function of the [ICL], as is the function of every other solicitor and counsel representing an interest, is to put relevant evidence before the court and to make submissions on that evidence and to argue in favour of a course of action”. (emphasis added).

47The Full Court made similar observations in In the matter of P and P (1995) FLC 92-615.

48In my view, the proper discharge of the duties of an ICL requires a proactive approach, notwithstanding any tempering of the steps to be taken by considerations of proportionality and an eye to the expenditure of limited Legal Aid funds.

49The task of the ICL in any complex parenting case is difficult and can be thankless. Nevertheless, the difficulty of the role does not diminish the importance of it being performed well. If anything, the opposite is the case. The more complex the issues in the case, the more important it is that the ICL approaches his or her task with a keen eye to the express provisions of the Act and to the observations of Justice Pidgeon and those of the Full Court to which I have already referred, ensuring that evidence of importance to a proper determination of the child’s best interests is available and tested, and that appropriate submissions are made.

50In the present case, it must regrettably be observed that responsibility for the lack of readiness of the proceedings for trial can fairly be attributed not only to the parties, and those previously representing them, but also to the ICL.

51Even if the parties continued to inadequately engage in the proceedings, a proactive approach by the ICL would have brought the matter to the attention of the Court at a much earlier stage.

52That in turn would have either prompted appropriate steps to ready the matter for trial or enabled finalisation orders of the nature being made today to have been made several months ago. It would, at the very least, have avoided the current circumstances where valuable and scarce trial days have been allocated to these parties, to the exclusion of other parties awaiting trial dates, in circumstances where the most cursory examination of the file revealed its lack of readiness.

53There will be the following orders:

(1)The trial listed to commence not before Monday 7 May 2018 be and is hereby vacated.

(2)The proceedings stand adjourned generally, with liberty to the Applicant, [MR WOODS], the Respondent, [MS GOODE], and the ICL to request, by letter addressed to the Acting Principal Registrar, a relisting before me for further directions.

(3)The ICL arrange for a copy of these orders to be personally served on the Respondent.

(4)In the event that no request for a relisting is made by the close of Registry on 6 July 2018, the file is to be referred to me in Chambers for the following final orders to be made without further reference to the parties or the ICL:

(a)all previous parenting orders be and hereby discharged;

(b)the Applicant have sole parental responsibility for the child, [CHILD A], born [in] 2010;

(c)[Child A] live with the Applicant;

(d)during school terms, [Child A] spend time with the Respondent every third weekend from 5.30 pm on the Friday until 5.30 pm on the Sunday.

(e)[Child A] spend time with the Respondent for one half of all school holiday periods and, on days of significance such as Christmas Day, each alternate year;

(f)for the purposes of [Child A] spending time with the Respondent, handover take place at [Business A].

(g)the Applicant ensure that [Child A] is able to have liberal telephone communication with the Respondent;

(h)the parties each be restrained by injunction from denigrating each other, or discussing the proceedings, within earshot or in the presence of [Child A] and from permitting any third party to do so;

(i)in the event of any medical emergency involving [Child A], the party having his care at the time of the emergency contact the other parent as a matter of urgency and provide all relevant details, including the names and contact details for any treating medical practitioners;

(j)all outstanding applications and responses otherwise be and are hereby dismissed;

(k)the Independent Children’s Lawyer be discharged; and

(l)all documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.

These reasons are the reasons for decision I delivered on 2 May 2018, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

LH
ASSOCIATE

2 MAY 2018