Arndale & Kingley (No. 3) - [2011] FamCAFC 128

FAMILY COURT OF AUSTRALIA

ARNDALE & KINGLEY (NO. 3)

[2011] FamCAFC 128

FAMILY LAW - APPEAL - CHILDREN – FAMILY CONSULTANT – where the previous family consultant in the matter had been discharged, the mother raised concerns about the impartiality of a new Court-appointed family consultant – where the mother made an application for a specific psychologist, external to the Court, to be engaged to prepare a family report – whether the trial judge erred in making an order that the Manager of Child Dispute Services appoint a new family consultant to prepare a new family report – no merit found in this ground of appeal.

FAMILY LAW - APPEAL – CHILDREN - INDEPENDENT CHILDREN’S LAWYER – where the mother alleged that the Independent Children’s Lawyer would be influenced by previous discussions with, and reports by, the discharged family consultant – whether the trial judge erred in dismissing the mother’s application that the Independent Children’s Lawyer be discharged and a new Independent Children’s Lawyer be appointed – no merit found in this ground of appeal.

Family Law Act 1975 (Cth) ss 69ZT and 93A(2)
Family Law Rules 2004 (Cth) r 22.22(2)(a)

CDJ v VAJ (1998) 197 CLR 172 at 201 to 203
B and R and the Separate Representative (1995) FLC 92-636
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279
Bennett and Bennett (1991) FLC 92-191 at 78,266 and 78,267
Wen & Thom [2010] FamCAFC 81 at [57]

APPELLANT:

Ms Arndale

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1363

2008

APPEAL NUMBER:

117

2010

DATE DELIVERED:

15 June 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland and Ainslie-Wallace JJ

HEARING DATE:

31 March 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 October 2010

LOWER COURT MNC:

[2010] FamCA 968

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baston (by direct brief)

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Smith & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley (No. 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 117 of 2010
File Number: BRC 1363 of 2008

Ms Arndale

Appellant

And

Mr Kingley

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Arndale (“the mother”) against certain orders made by O’Reilly J on 8 October 2010 in parenting proceedings between the mother and Mr Kingley (“the father”). Those proceedings are in relation to the parties’ child born in December 2006.
The orders of O’Reilly J, in summary, discharged the family consultant, provided for a new family consultant to be appointed by the Manager of Child Dispute Services in Brisbane, refused an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arndale & Kingley (No. 3)

Details

AGLC: Arndale & Kingley (No. 3) [2011] FamCAFC 128
Case: [2011] FamCAFC 128
Decision Date: 15 June 2011

CaseChat Overview and Summary

The appeal was brought by the mother against the decision of the Family Court regarding the appointment of a family consultant and an Independent Children’s Lawyer in family law proceedings. The dispute centred around concerns about the impartiality and potential bias of new court-appointed officers following the discharge of the previous family consultant. The mother argued that the new consultant and the Independent Children’s Lawyer might be influenced by prior interactions with the discharged consultant.

The legal issues before the court were whether the trial judge erred in appointing a new family consultant and whether the trial judge erred in declining the mother's application to discharge the Independent Children’s Lawyer and appoint a new one. The mother contended that these appointments might not be impartial due to the new consultants' potential exposure to previous discussions and reports from the former consultant.

The court examined the mother's concerns regarding the impartiality of the new family consultant and the Independent Children’s Lawyer. It concluded that the trial judge had correctly assessed the situation and found no merit in the mother's claims of potential bias. The court found that the trial judge had adequately considered the mother's concerns and made appropriate decisions regarding the appointments, thereby not committing any error. Consequently, the appeal was dismissed, and there was no order as to costs.

Orders

Orders of the court

The appeal be dismissed.

There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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