Arndale v Kingley

[2012] HCASL 16

ARNDALE
v
KINGLEY & ANOR
[2012] HCASL 16
B35/2011

1. In parenting proceedings relating to the parties' daughter the Family Court of Australia appointed an Independent Children's Lawyer.  A Child and Parents Issues Assessment and, later, a Family Report were prepared by a Family Consultant employed by the Court.

2. The judge of the Family Court in whose docket the matter was listed transferred the management and trial of the proceeding to another judge of that Court (O'Reilly J).  It later emerged that this was done because the judge in whose docket the matter had originally been listed had discussed the case with the Family Consultant without the parties being present.

3. The applicant, the mother of the child, applied to O'Reilly J for orders removing the reports prepared by the Family Consultant from the court file and recovering all copies of them, appointing an expert to prepare a Family Report, and discharging the Independent Children's Lawyer and appointing another lawyer as Independent Children's Lawyer.  O'Reilly J ordered that the reports made by the Family Consultant (and material annexing or referring to them) be sealed, retained on the court file and not opened except by order of a judge.  Her Honour further ordered that the reports not be introduced in evidence or used for any purpose in the proceedings nor relied upon by any party, witness or the Independent Children's Lawyer.  Her Honour ordered that the Court's Manager Child Dispute Services appoint a new Family Consultant but refused to order that the Independent Children's Lawyer be discharged.

4. The mother appealed to the Full Court of the Family Court of Australia (May, Strickland and Ainslie‑Wallace JJ) but that Court dismissed the appeal.  She now seeks special leave to appeal to this Court alleging that further orders similar to those she had claimed at first instance should have been made.

5. While ex parte communications by a potential witness with a judge may well require the judge not to hear the proceeding, it is not necessary to decide whether O'Reilly J was right to make orders which would, in effect, prevent evidence being given at trial of the opinions formed by the Family Consultant.  On the assumption that those orders were rightly made it is not demonstrated that any further order of the kind now sought should have been made.

6. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 February 2012 S.M. Crennan