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Bondai & Bretton (No 2)

Bondai & Bretton (No 2)

Case [2010] FamCA 1237 6 December 2010

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FAMILY COURT OF AUSTRALIA

BONDAI & BRETTON (NO. 2)

[2010] FamCA 1237

FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of independent children’s lawyer – Application made after final orders – No proceedings on foot – Application dismissed – Observations as to the role of independent children’s lawyers

Family Law Act 1975 (Cth) ss 68LA(2)(a), 68LA(5)(a)

Antoun v The Queen [2006] HCA 2
Bennett & Bennett (1991) FLC 92-191
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Harris & Harris (1977) FLC 90-276
Johnson & Johnson (2000) 201 CLR 488
Kingley & Arndale (No 2) [2010] FamCA 968
Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
Marsden & Winch (2009) FamCAFC 152
Miller & Harrington (2008) FLC 98-283
Pagliarella & Pagliarella (1993) 16 FamLR 688
Rice & Asplund (1979) FLC 90-725
S & E (unreported) BR 2362 of 1998, Warnick J, 10 July 2000

APPLICANT:

Mr Bondai

RESPONDENT:

Ms Bretton

FILE NUMBER:

BRC

13855

2007

DATE DELIVERED:

6 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

30 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Smith

SOLICITOR FOR THE APPLICANT:

Hogan Stanton Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Lynn & Rowland Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carmody

THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

IT IS ORDERED

The mother’s application filed 18 November 2010 for the discharge of the independent children’s lawyer, and other orders, is dismissed.

AND IT IS FURTHER ORDERED

Any applications for costs together with supporting material and written submissions be filed and served by 4.00pm on Tuesday 14 December 2010.
Any material in response together with written submissions be filed and served by 4.00pm on Tuesday 21 December 2010.
The applications for costs, if any, be dealt with on the papers.

NOTATION:

Mr Smith, Mr Baston and Ms Carmody agreed that any cost applications be dealt with on the papers.

IT IS NOTED that publication of this judgment under the pseudonym Bonsai & Bretton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13855 of 2007

MR BONDAI

Applicant

And

MS BRETTON

Respondent

REASONS FOR JUDGMENT

Background

This is an unusual application seeking the discharge of an independent children’s lawyer after the conclusion of a trial and the making of final orders.
On 8 October 2010, I made several orders by consent (except in respect of a minor matter) concerning the children B born in March 2000 and E born in April 2001, including that the parties have equal shared parental responsibility for the children and that they live with the mother. The children, essentially, had become estranged from the father. In my reasons for judgment 8 October 2010 concerning the minor matter which I was required to determine, I said, in relation to the parties’ agreement for consent orders:
1.In this…

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 Bondai & Bretton (No 2)

Details

AGLC: Bondai & Bretton (No 2) [2010] FamCA 1237
Case: [2010] FamCA 1237
Decision Date: 6 December 2010

CaseChat Overview and Summary

In *Bondai & Bretton (No 2)*, O'Reilly J of the Family Court of Australia considered an application by the mother seeking the discharge of the independent children's lawyer. The specific nature of the underlying dispute between the parties, beyond the mother's application concerning the independent children's lawyer, is not detailed in the provided text.

The primary legal issue before the court was whether the independent children's lawyer should be discharged from their role. This required the court to assess the continued necessity and appropriateness of the independent children's lawyer's involvement in the proceedings, likely in light of the mother's application and any arguments presented in support of it.

O'Reilly J dismissed the mother's application for the discharge of the independent children's lawyer. While the reasoning behind this decision is not elaborated upon in the provided text, the outcome indicates that the court found sufficient grounds for the independent children's lawyer to continue their representation. The court also made orders regarding the process for dealing with any applications for costs, stipulating that these would be handled on the papers by a specified date.

Orders

Orders of the court

IT IS ORDERED

The mother’s application filed 18 November 2010 for the discharge of the independent children’s lawyer, and other orders, is dismissed.

AND IT IS FURTHER ORDERED

Any applications for costs together with supporting material and written submissions be filed and served by 4.00pm on Tuesday 14 December 2010.

Any material in response together with written submissions be filed and served by 4.00pm on Tuesday 21 December 2010.

The applications for costs, if any, be dealt with on the papers.

NOTATION:

Mr Smith, Mr Baston and Ms Carmody agreed that any cost applications be dealt with on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Bondai & Bretton (No 2) [2010] FamCA 1237

Most Recent Citation

Manual & Pinner [2021] FedCFamC2F 468

Cases citing this decision · 9 of 9 shown

Manual & Pinner
[2021] FedCFamC2F 468 Para 16

…ns, filed on 28 th October 2021, were as follows: SUBMISSIONS OF THE INDEPENDENT CHILDREN’S LAWYER Authorities Relied Upon Bondai & Bretton (No. 2) [2010] FamCA 1237 Charisteas & Charisteas and Ors [2021] HCA 29 Dean & Susskind [2012] FamCA 897 Knibbs & Knibbs [2009] FamCA 840 Leroux & Leroux [2015] FamCA 1128 Lim &…
Curtis and Percy & Anor
[2018] FamCA 221 Para 1

…sentative”. [1] Transcript of the proceedings on 17 January 2018 Annexed to the father’s affidavit filed 9 March 2018 [2] [2010] FamCA 1237…
HOWELL & CARTER (No.2)
[2017] FCCA 377 Para 8

…d Kingley (No.3) [60] and Dickens and Dickens .[61] [55] (2000) FLC 93-045. [56] [2006] FamCA 512. [57] [2009] FamCA 840. [58] [2010] FamCA 968. [59] [2010] FamCA 1237. [60] [2011] FamCAFC 128. [61] [2016] FamCA 115.…
Lorde and Chu (ICL Discharge)
[2016] FCCA 1156 Para 3

…Grange (No.3) [2011] FamCA 171; W & M & W [2006] FamCA 512 (Bryant CJ, Warnick & May JJ); T v L (2001) 27 Fam LR 40. See also Bondai & Bretton (No.2) [2010] FamCA 1237.…
Vale & Vale
[2016] FamCA 307 Para 1

…e discussion by O’Reilly J on similar matters in Kingley & Arndale (No 2) (2010) 255 FLR 326, 322-334 at [26] –[35] and Bondai & Bretton (No 2) [2010] FamCA 1237 at [43].…
Sawyer & Sawyer
[2015] FamCA 982 Para 2

…e discussion by O’Reilly J on similar matters in Kingley & Arndale (No 2) (2010) 255 FLR 326, 322-334 at [26] –[35] and Bondai & Bretton (No 2) [2010] FamCA 1237 at [43]…
Dean & Susskind
[2012] FamCA 897

…Knibbs and Knibbs [2009] FamCA 840 Kingley & Arndale (No 2) (2010) 255 FLR 326 Bondai & Bretton (No 2) [2010] FamCA 1237 Lloyd & Lloyd & the Child Representative (2000) FLC 93-045…
Jacobs and Faulkner
[2012] FMCAfam 1015 Para 2

…Grange (No.3) [2011] FamCA 171; W & M & W [2006] FamCA 512 (Bryant CJ, Warnick & May JJ); T v L (2001) 27 Fam LR 40. See also Bondai & Bretton (No.2) [2010] FamCA 1237.…
Xuarez & Vitela
[2012] FamCA 574 Para 4

…on of an application for discharge can be found in the decisions of Murphy J in Knibbs v Knibbs [2009] FamCA 840 and O’Reilly J in Bonsai v Bretton [2010] FamCA 1237. There, the following decisions are also referred to: In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191; In the Marriage of Harris [197…

View all 9 citing cases →

Cases cited in this decision · 6 of 6 shown

Kingley & Arndale (No 2)
[2010] FamCA 968 Para 1

…It is convenient to refer to Kingley & Arndale (No 2) [2010] FamCA 968, 8 October 2010, in which very recently I considered the principles relevant to applications for the discharge of an independent children’s lawyer, at [26]-[35]: 26.In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to some of the authoritie…
Knibbs & Knibbs
[2009] FamCA 840 Para 9

…aving been performed. He referred to Pagliarella & Pagliarella (1993) 16 FamLR 688, a decision of Hannon J referred to in Knibbs & Knibbs [2009] FamCA 840 at [36]-[37], Murphy J, as having effect that even if an independent children’s lawyer at a very early stage of a trial forms an adverse view about a party, such…
Antoun v The Queen
[2006] HCA 2 Para 1

…The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8]. 34.In Antoun v The Queen [2006] HCA 2 at [34] Kirby J in relation to recusal by a judge said: It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this Court has “loudly and clearly” expressed a correcti…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…o emphasise that the test is objective. See also Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8]. 34.In Antoun v The Queen [2006] HCA 2 at [34] Kirby J in relation to recusal by a judge said: It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this C…
Johnson v Johnson
[2000] HCA 48 Para 1

…logous, and it is relevant to refer to High Court authority on the point. 33.In Johnson & Johnson (2000) 201 CLR 488 at [11]-[14], the majority made clear that the test for the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced…
Ebner v The Official Trustee in Bankruptcy
[2000] HCA 637 Para 1

…bserver of conduct is postulated in order to emphasise that the test is objective. See also Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8]. 34.In Antoun v The Queen [2006] HCA 2 at [34] Kirby J in relation to recusal by a judge said: It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
68LA(2)(a), 68LA(5)(a) 3 mentions (from Para 10)