#8556 - Process - Family Law

Consider: (1) Process? Too adversarial? (2) ICL required? Re K; M v M (3) Role of ICL? (4) Family report?

Note that under s 100B(1) and (2) child who isn’t a party to a case mustn’t be called as a witness unless court ohteirwse orders. See R 15.02 and r 15.04

FL e2 3 process 1

A. FLA and Adversarial System (Watson; Wood (shouldn’t dispense with oral evidence, can’t prevail upon parties to discontinue proceedings in other court); can order persons to see counselors (Brown v Pederson); Re P (Proceedings are not strictly adversarial, must have regard to paramount consideration: M and M) 2

69ZN Principles for conducting child‑related proceedings 2

Also see: s 69ZQ – General Duties of Court 2

S 69ZR – Power to make determinsations, findings, orders 3

S 69ZS – use of family consultants (court may designate a family consultant) (court cannot without consent take into account opinion of family consultant unless sworn evidence: s 69ZU) 3

S 69ZT – Rules of evidence not to apply unless court decides 3

S 69ZV – Evidence by Children of representation that would be hearsay not inadmissible solely because of law against hearsay. 3

FLA and Adversarial System: Case law 4

Oral evidence in proceedings should be given unless good reason to dispense: Wood. (Here the judge: disposed with oral evidence. 4

Court now has power to order persons to attend counseling medical treatment; Gilbert; Brown and Pederson (overruling Wood on this point) 4

Improper to suggest pressure on parties to discontinue proceedings in other court: Wood 4

Proceedings in relation to welfare of children are not strictly adversarial having regard to the Court’s obligation to treat the welfare of the child as the paramount consideration: M and M Re P: separate representative natural justice not an absolute right (eg can limit how many examinations of child conducted) 5

B. Aspects of Process 5

(i) Role of ICL under s 68L; Wotherspoon and Cooper; Pagliarella; Re K; Re P 5

68L Court order for independent representation of child’s interests 5

68LA Role of independent children’s lawyer 6

68M Order that child be made available for examination 7

Role of Child’s Independent representative under s 68L: Wotherspoon; Pagliarella (cites Bennett about how separate rep has impartial role) 8

When to appoint ICL: Re K 8

Wotherspoon 9

(ii) Family Reports 11

Restriction on child's evidence r 15.02 FLR 12

R 15.04 FLR – court may release copies of family report, permit examination of maker of report, receive report in evidence, order that report not be released to a person 12

Application of the principles

(1) The court must give effect to the principles in this section:

(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

(b) in making other decisions about the conduct of child‑related proceedings.

Failure to do so does not invalidate the proceedings or any order made in them.

(2) Regard is to be had to the principles in interpreting this Division.

Principle 1

(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Principle 2

(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned against family violence, child abuse and child neglect; and

(b) the parties to the proceedings against family violence.

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

Principle 5

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

1. For property proceedings: adversarial so far as possible: Proceedings of wife seeking order maintenance or property may involve dispute… judge given a wide discretion but must exercise ti in accordance with legal principles: Watson

1. Ratio: Judge alone who must assess merits of proposals. Responsibility shouldn’t’ be abandoned to expert opinion.

2. Exception: Court should be eager to avoid cross-examination on irrelevant issues of conduct.

   1. Eg judge may indicate to parties that he is not concerned with or affected by counter allegations relating to family squabbles and that he considered such evidence inimical to the future relationships between the parties and the children.

   2. However judge cannot exclude completely oral testimony – loses opportunity of seeing and hearing and forming opinion about them. Process is just as important as any findings of fact based on their evidence.

3. May be that court has to proceed on affidavits or reports where special reasons. But no reason why judge couldn’t have had the benefit of seeing and hearing parties and other significant adults. Particularly important where the fitness of both parties is in issue. if fact that counsel agreed to course proposed by Honour does not absolve the court from responsibility of assessing parties demeanour.

4. Within power to draw to attention of wife and her legal advisers the possible benefits to the future relationship between the parties and the children of abandoning the charges.

5. However improper to say “She had better make up her mind be either advised by the police or me” – remarks that carries implication that person could cannot proceed in Family Court while charges were pending elsewhere. Decision should not have been subjected to any suggestion of pressure.

• “Proceedings in the Family Court in property and maintenance matters are adversarial in their nature rather than inquisitorial; Watson.

• Proceedings in relation to the welfare of children are not strictly adversarial, having regard to the Court’s obligation to treat the welfare of the child as the paramount consideration: M and M.

• Re: Natural justice:

  • If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified: J v Leischke (Brennan J) cited in Re P

  • Natural justice is not an absolute right.

• Eg sexual abuse – the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.

• Case example: Re P: girl who was 5.5 years old over 2 years subjected to an excessive number of examinations and investigations. May have had a serious effect on her. Couldn’t be said that further examinations are in her interests or welfare. Will force the child to go over painful experiences and recollections with little prospect of the litigation or the child’s welfare being advanced. The child is entitled to look to the court to protect her from abuse by litigation.

• Orders for further examination of child set aside.

• ICRep sections apply to proceedings where child’s interests paramount: This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration: s 68L(1)

• Court may appoint a child’s rep when their interests ought to be independently represented and then can make further orders to secure the representation under s 68L(2): If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court under s 68L(2):

(a) may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

(b) may make such other orders as it considers necessary to...