Bookhurst and Bookhurst

[2011] FamCA 16

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST [2011] FamCA 16

FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of Process – application for the disqualification of the Independent Children’s Lawyer and single expert Psychiatrist – application dismissed

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Jones v Dunkel (1959) 101 CLR 298

APPLICANT: Mr Bookhurst

RESPONDENT: Ms Bookhurst

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1832 of 2007

DATE DELIVERED: 12 January 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 10 December 2010

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Kearney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Gillies

Orders

1. The Application in a Case filed by the father on 19 August 2010 and heard on 10 December 2010 is dismissed.

2. The question of costs is reserved to the hearing of the matter.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1832  of 2007

MR BOOKHURST

Applicant

And

MS BOOKHURST

Respondent

And

INDEPENDENT CHILDREN’S LAWYER 

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court were commenced by an Application in a Case filed by the father on 19 August 2010.

2. In that Application the father sought a number of orders, however at the commencement of the hearing he informed the Court that he did not intend to proceed to argue for certain of the orders sought.  The orders abandoned related to an application for variation of orders relating to time with the children and an order that the interviews between the children and Independent Children’s Lawyer be recorded and transcribed and that those transcripts be made available to the parties.

3. The orders sought by the father were otherwise, in summary, orders that the Independent Children’s Lawyer be discharged and that no Independent Children’s Lawyer be appointed in her stead.  In the alternative, he sought that the Independent Children’s Lawyer be discharged and a replacement be appointed from a private firm of practitioners.

4. The father also sought an order that Associate Professor Q, the Court appointed independent expert, be discharged from her function in the proceedings or in the alternative that an independent transcription service be appointed to transcribe all interviews conducted by her and that such interviews be made available to the parties and that all communications between Associate Professor Q and the parties or their legal representative be in writing and the records of such written correspondence be made available to the parties before the final hearing.

5. The father finally sought an order that on the next occasion the Independent Children’s Lawyer advise the children that they are entitled to provide written views to present to the Independent Children’s Lawyer to then be sealed and given to the Judge in a sealed envelope.

6. The mother sought that the…