Court Orders Meeting: Child's Voice Crucial in Custody Battle

Court Orders Meeting: Child's Voice Crucial in Custody Battle

Facts:

Mr. Tandy and Ms. Padula are involved in a dispute regarding the parenting arrangements for their eight-year-old daughter, X. The Independent Children’s Lawyer (ICL) appointed to represent X’s interests has not been able to meet with her, and the court must decide if it can order Mr. Tandy to facilitate this meeting despite his claims that X refuses to meet with the ICL.

Issues:

1. Does the court have the power to compel the father to facilitate a meeting between the ICL and the child?
2. Should the ICL meet with the child despite the child’s expressed refusal?
3. What orders are appropriate to ensure the child's best interests are represented?

Applicable Law:

• Family Law Act 1975 (Cth): Sections 60B, 60CC, 60CE, 68B, 68L, 68LA, 68M, 102NA.
• United Nations Convention on the Rights of the Child: Articles 9, 12.
• Relevant case law:
• Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065
• Maldera & Orbel [2014] FamCAFC 135; (2014) FLC 93-602
• Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC 94-017
• Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363
• Zammit & Zammit [2020] FamCA 950

Analysis:

1. Power to Compel Meeting:

• The court has the power under s 68L(2)(b) and s 68B of the Family Law Act to make orders necessary to secure independent representation of the child's interests, including facilitating a meeting between the ICL and the child.

1. ICL Meeting Despite Refusal:

• The court considered the father’s evidence that X did not want to meet the ICL. However, previous interactions suggested X was capable of expressing her views clearly once she felt comfortable.
• The court emphasized the importance of the ICL meeting with the child to form an independent view of her best interests, as required by s 68LA(2).

1. Appropriate Orders:

• The court ordered the father to facilitate the meeting, highlighting the necessity for the ICL to fulfill her statutory duties and the importance of the child’s views being considered in the final parenting arrangements.

Reasoning for the Decision:

• The court determined that the statutory requirements and best practices for the ICL necessitated a meeting with the child, regardless of the child’s initial reluctance.
• It was critical for the ICL to form an independent and informed view of the child’s best interests, which could not be achieved without direct interaction.

Take Home Lesson:

The best interests of the child are paramount in family law proceedings. Courts can compel parents to facilitate meetings between children and their legal representatives to ensure comprehensive and independent assessments of the children's views and best interests.

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