Court Reviews Interim Parenting Orders for 12-Year-Old X After Separation of Parents
Bradshaw & Bradshaw [2022] FedCFamC1F 930 (1 December 2022)
In March 2022, the mother filed an application for an interim order for X to spend time with her, which was granted in April 2022. However, the order was not followed consistently, so the issue was brought before the court again in November 2022 with an independent children's lawyer appointed to meet with X in July 2022.
Facts:
The parties were in a relationship from 1994, married in 2004, and separated in February 2022. They have one child, X, who is 12 years old and has been living with the father since the separation. The mother filed an application in March 2022, and an interim order was made in April 2022 that X spend time with the mother.
The order has not been followed consistently, so the issue was brought before the court again. An independent children's lawyerICL was appointed in May 2022 and met with X in July 2022. The father raised his issues with the ICL in October 2022, and the issue was heard by the court on November 24th.
Issue:
The issue is that the order for X to spend time with the mother has not been followed consistently.
Applicable law:
Family Law Act 1975 s 68L - provides that 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.
Dean & Susskind [2012] FamCA 897 - provides that it is consistent with the role of the ICL and professional discharge of obligations for the ICL to advocate a particular course of action adverse to, or consistent with the position of a party.
Analysis:
The father complained that the ICL had failed to put X's views before the court, had selectively tendered documents, and had not issued any subpoenas. He also argued that the ICL had not acted impartially, claiming that she had "threatened" X to the effect that if he did not go to the mother in accordance with the interim orders then he would be taken from the father and placed into the care of the mother.
It is for the ICL to prepare her case in a fashion she perceives appropriate and that the onus is on the father to prove on the balance of probabilities that the evidence is such that the ICL should be discharged.
Conclusion:
The Federal Circuit & Family Court of Australia has dismissed the father, Mr Bradshaw's, request to have the appointment of the Independent Children's Lawyer discharged. However, the remaining orders sought in the Further Amended Response have been listed for hearing before a Senior Judicial Registrar at 2:15pm on 19 December 2022 via Microsoft TEAMS.
Case: Bradshaw & Bradshaw [2022] FedCFamC1F 930
Judgment of: MCGUIRE J
Counsels:
