Agitating Issues In The Best Interests of The Children

In my To Thine Own Self Be True article I posed a Family Law Act 1975 question:

• The possible self-destructive behaviour of the mother was an issue worth agitating before the Court.
• Was it in the best interests of the children to be placed primarily in the care of such a parent?
• It appeared that circumstances were conspiring to prevent the agitation of that issue.
• Did the duty to the Court in our adversarial system extend to requiring that material be placed before the Court to agitate that issue, so that it could be considered in determining what was in the best interests of the children?

On that occasion I did not need to resolve the question. Since I wrote my case note on Nettle & Nada I have considered the question a little further.

I look at two (2) cases for some assistance:
• RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012); and
• Nettle & Nada [2013] FCCA 1677 (31 October 2013)

RCB
The proceedings in RCB involved an application under Regulation 14 of the Convention on the Civil Aspects of International Child Abduction (“the Convention”). Relevantly they involved consideration of:

• The interests and views of the child;
• The report of a family consultant; and
• The role of the Independent Children’s Lawyer.

In relation to ascertaining children’s views and interests, French CJ, Hayne, Crennan, Kiefel and Bell JJ. Found

An application under Regulation 14 is not brought to resolve, in an adversarial setting between parties in conflict, questions about the care and custody of a child. It is brought to determine whether Australia’s obligation under the Convention, to return a child wrongfully removed from a country of habitual residence, is engaged. If it is engaged, disputed questions of care and custody fall to be resolved in accordance with the laws of the country from which the child has been removed. That being said, the interests and views of the child are relevant to the existence of the obligation. 1

A party to the proceedings may provide evidence to the court of the child’s views. 2

The court has general power conferred on it by s 62G(2) of the Family Law Act, “to direct a family consultant to give the court a report on matters relevant to proceedings before it as the court thinks desirable.
Plainly enough the views of a child and, in particular, objections he or she may have to returning to the country from which he or she was removed, are matters which a family consultant can consider in the preparation of his or her report.” 3

“In some (perhaps many) cases, obtaining the report of a family consultant would avoid the difficulties and limitations inherent in receiving evidence of the children’s views from one or both of the disputing parents. And in a case such as this, where it is suggested that one or more of the children objects to returning, it may be expected that a family consultant’s report would ordinarily be obtained. 4

The Independent Children’s Lawyer is not the child’s legal representative 5 and is not obliged to act on the child’s instructions 6. 7

Nettle
In Nettle in July 2012 the Respondent Mother and the subject child clandestinely moved / secretly relocated from New South Wales to Hobart, Tasmania, without reference to the Father and the Court. This subterfuge by the Mother was, and has continued to be, facilitated to a significant degree by her parents. The Father and the Court continued to be deceived that she remained living in New South Wales until March 2013. 8

The Court had no evidence regarding, among other things, the fiancé of the Mother and his involvement in the life of the child 9 and the Court learnt about the fiancé of the Mother for the first time in the course of the trial. 10

Almost all of the major long-term issues involving the child thus far had been taken solely by the Mother, without reference to the Father (the surname of the child, details on her birth certificate, her attendance at day-care, all relevant health decisions). 11

The experienced Independent Children’s Lawyer proposed that the child remain living with her Mother in Hobart, primarily because the child was [now] well settled there.

Relevantly The Court Held

• The logistical requirements attendant with the Father spending time with the child, having proper regard to the interstate and other necessary travel involved, are relevant considerations in relocation cases
• Depriving the child of having the benefit of her Father meaningfully involved in her life over a very considerable period of time compromised the best interests of the child
• Where the fiancé of the Mother does not give evidence in support of the Mother, it must be assumed that his evidence would not have relevantly assisted her. 12 13
• A clandestine relocation is information that was / is directly material to matters in issue before the Court and solicitors and counsel acting for that parent who know of it were obliged to disclose it to the Court 14
• The existence of a fiancé of the Mother is something of which the Family Consultant should be apprised 15
• Because of the lack of evidence from the fiancé of the Mother, the Court is in no position to know what likely impact it might have on the child not to spend as regular time with those persons as she currently does as a result of the Mother returning from Hobart. 16

Observations

• The relationship of a parent with a new partner is a relevant consideration
• The time and circumstances of the new partner spending time with the children is a relevant consideration
• They are matters of which the Family Consultant should be apprised
• If there is no Independent Children’s Lawyer or Family Consultant in the matter, the parties are expected to properly canvass these issues

Samson
In Samson & Samson [2015] FamCAFC 28 (27 February 2015) the father had concerns about the children being at risk in the care of the mother. The mother had been diagnosed with Borderline Personality Disorder and methods of treatment for her condition were outlined. She also had a history of drug and alcohol abuse.

The Court held the matter was controversial and it was an appropriate case for a new interim hearing for interim parenting orders.

The question that arises from Samson is:

• Are the circumstances of the case such that the best interests of the child might require a hearing to investigate all the available evidence?

Ganim
In Ganim and La Banchi [2015] FCWA 1 (16 January 2015) Crisford J (at para [149]) said “Section 60CC(2)(b) requires the Court, in determining the best interests of the child, to consider as a primary consideration, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.” ”

Her Honour went on to find (at para [186]) the circumstances of the father to be such that the children having contact with him posed an unacceptable risk to them.

Accordingly where a parent demonstrates possible self-destructive behaviour, a trial of all the issues may be necessary to determine whether that parent poses an unacceptable risk to the children.

The Possible Self-Destructive Behaviour of a Parent
Given the discussion in Nettle, Samson and Ganim, the possible self-destructive behaviour of the mother is an issue worth agitating before the Court. Accordingly it is proper for a Court to consider the questions:

• Was it in the best interests of the children to be placed primarily in the care of such a parent?
• Whether that parent poses an unacceptable risk to the children?

They are matters of which the Family Consultant should be apprised and which the Independent Children’s Lawyer would be expected to agitate before the Court.

If there is no Independent Children’s Lawyer or Family Consultant in the matter, it is in the interests of the father to agitate the issues. Failure to do so may invite speculation as to the appropriateness of the father to have the primary care of the children.

The duty to the client may preclude the legal representatives of the mother from informing the Court of the possible self-destructive behaviour of the mother, so that it might be agitated as an issue in the determination of the best interests of the children and who should have their primary care. However those legal representatives of the mother should ensure that they have properly discharged their obligations under s60D of the Family Law Act 1975 (obligations in relation to best interests of the child) and advised the mother of the need to protect the children from harm.

The legal representatives of the father also need to ensure that they have properly discharged their obligations under s60D of the Family Law Act 1975 and advised the father of the need to protect the children from harm. It is worth seriously considering as to whether the legal representatives of the father have a duty to the Court to ensure the possible self-destructive behaviour of the mother is raised and agitated.

The duty to the Court to assist in determining the best interests of the children may supercede the duty to the client in some cases.