Belkin & Ming (No 2) - [2021] FCCA 1225

FEDERAL CIRCUIT COURT OF AUSTRALIA
Belkin & Ming (No 2) [2021] FCCA 1225

File number(s): PAC 3506 of 2018

Judgment of: JUDGE NEWBRUN

Date of judgment: 3 June 2021

Catchwords: FAMILY LAW – application to remove Independent Children’s Lawyer – application dismissed

Legislation: Family Law Act 1975 (Cth) ss 68L, 68LA

Cases cited: Howell & Carter (No.2) [2017] FCCA 377
Amari & Qureshi [2017] FamCAFC 122

Number of paragraphs: 21

Date of last submission/s: 31 March 2021

Date of hearing: 31 March 2021

Place: Parramatta

Solicitor for the Applicant: No appearance

Solicitor for the Respondent: The Father appeared in person

Solicitor for the Independent Children’s Lawyer: Mr Jauncey
ORDERS

PAC 3506 of 2018

BETWEEN:
MS BELKIN

Applicant

AND:
MR MING

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

3 JUNE 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Father’s application to remove the Independent Children’s Lawyer is dismissed.
2.In relation to the Father’s Application in a Case filed 25 March 2021, the Court appoints a short interim hearing on 14 October 2021 at 10am.
3.Each party shall file and serve on each other party and provide to the Court (by email to associate.judgenewbrun@federalcircuitcourt.gov.au) no later than 7 days prior to the interim hearing a case outline setting out material relied upon, Orders sought and brief submissions in relation to relevant considerations under s.60CC of the Family Law Act 1975. No party shall be permitted to rely upon any Affidavit that exceeds ten (10) pages or contains more than five annexures, in accordance with Practice Direction No. 2 of 2017.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Belkin & Ming (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

The Father seeks an Order that the Independent Children’s Lawyer (“the ICL”) be removed from the proceedings and that the child be appointed a new ICL. The child is X born 2017.
The ICL opposes the Father’s above proposed Order.
MATERIALS RELIED UPON
The Father relied upon the following documents:
(a)His Application in a Case filed 25 January 2021.
(b)His Affidavit filed 22 January 2021.
The ICL relied upon the following documents:
(c)Her Case Outline filed 30 March 2021.
(d)Her Affidavit filed 26 March 2021.
LEGAL PRINCIPLES
The Court sets out the provisions of s 68L of the Family Law Act1975 (Cth) (“the Act”).
Court order for independent representation of child's interests
(1) This section applies to proceedings under this Act in which a child's best interests are, or a child's welfare is, the paramount, or a relevant, consideration.
(2) If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in…

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 Belkin & Ming (No 2)

Details

AGLC: Belkin and Ming (No 2) [2021] FCCA 1225
Case: [2021] FCCA 1225
Decision Date: 3 June 2021

CaseChat Overview and Summary

In *Belkin & Ming (No 2)*, the Federal Circuit Court of Australia considered an application by the Father to remove the Independent Children’s Lawyer (ICL) and a separate application filed by the Father on 25 March 2021. The proceedings involved Ms Belkin as the Applicant and Mr Ming as the Respondent.

The primary legal issue before the Court was whether the Father’s application to remove the ICL should be granted. The Court was also required to determine the procedural path forward for the Father’s application filed on 25 March 2021, which involved considerations under section 60CC of the *Family Law Act 1975* (Cth).

Justice Newbrun dismissed the Father’s application to remove the ICL, thereby upholding the appointment of the ICL. In relation to the Father’s other application, the Court ordered a short interim hearing to be held on 14 October 2021. Directions were given for parties to file and serve case outlines, limiting affidavits to ten pages and five annexures, in accordance with Practice Direction No. 2 of 2017. The Court also noted the prohibition on publishing identifying details of family law proceedings under section 121 of the *Family Law Act 1975*.

Orders

Orders of the court

PAC 3506 of 2018

BETWEEN:

MS BELKIN

Applicant

AND:

MR MING

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

3 JUNE 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The Father’s application to remove the Independent Children’s Lawyer is dismissed.

2. In relation to the Father’s Application in a Case filed 25 March 2021, the Court appoints a short interim hearing on 14 October 2021 at 10am.

3. Each party shall file and serve on each other party and provide to the Court (by email to associate.judgenewbrun@federalcircuitcourt.gov.au) no later than 7 days prior to the interim hearing a case outline setting out material relied upon, Orders sought and brief submissions in relation to relevant considerations under s.60CC of the Family Law Act 1975. No party shall be permitted to rely upon any Affidavit that exceeds ten (10) pages or contains more than five annexures, in accordance with Practice Direction No. 2 of 2017.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

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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File number(s):	PAC 3506 of 2018
Judgment of:	JUDGE NEWBRUN
Date of judgment:	3 June 2021
Catchwords:	FAMILY LAW – application to remove Independent Children’s Lawyer – application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 68L, 68LA
Cases cited:	Howell & Carter (No.2) [2017] FCCA 377 Amari & Qureshi [2017] FamCAFC 122
Number of paragraphs:	21
Date of last submission/s:	31 March 2021
Date of hearing:	31 March 2021
Place:	Parramatta
Solicitor for the Applicant:	No appearance
Solicitor for the Respondent:	The Father appeared in person
Solicitor for the Independent Children’s Lawyer:	Mr Jauncey

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	3 JUNE 2021