On 20 December 2024 the appellate division of the Federal Circuit and Family Court of Australia published the decision of Pickford & Pickford. This case is important reading as it relates to coercive control and the ability of the Court to appoint an ICL after the making of final orders.
Findings in relation to the appointment of an ICL after the making of final orders:
- The ICL was originally appointed to represent the children’s interests within the proceedings. His Honour was not empowered by s 68L(2) of the Act to appoint an ICL to acquit some longitudinal assignment beyond the confines of the concluded litigation. ICLs cannot be used like family consultants to help implement parenting orders by resort to s 65L of the Act.
- Even if there was power to validly appoint an ICL for the intended purpose, there are additional impediments. First, Order 33 is incompetent because there is no longer any subsisting cause of action for the ICL to relist if dissatisfied with the way in which the parenting orders are working. If a dispute later arises between the parties about the “interpretation, implementation and/or enforcement” of the orders then, absent any scope for deployment of the slip rule under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a fresh cause of action would need to be instituted by filing either a parenting application under Pt VII, Div 6 of the Act or a contravention application under Pt VII, Div 13A of the Act.
- By making orders, his Honour did not confine his role to simply deciding the cause on its merits by reference to the evidence the parties elected to adduce. By appointing the ICL as some form of intermediary, his Honour tried to formulate orders to remedy the future conflict foreseen between the parties, but that was doing more than the judicial function required or permitted (Lainhart & Ellinson (2023) FLC 94-166 at [29]–[31]).
- Orders which appoint the ICL to monitor the implementation of the parenting orders over the next 12 months should be set aside.