Clayman & Berrera - [2021] FamCA 18

FAMILY COURT OF AUSTRALIA
Clayman & Berrera [2021] FamCA 18

File number(s): BRC 10793 of 2015

Judgment of: HOGAN J

Date of judgment: 28 January 2021

Catchwords: FAMILY LAW – Application for discharge of Independent Children’s Lawyer – Application dismissed

Legislation: Family Law Act 1975 (Cth)

Cases cited:
F and R (No. 2) (1992) FLC 92-314

In the Marriage of Bennett (1990) 14 Fam LR 397

Knibbs & Knibbs [2009] FamCA 840

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (intervener) (1995) FLC 92-615

Re R (1995) FLC 92-564

Separate Representative v JHE and GAW (1993) 16 Fam LR 485

T & L (2000) FLC 93-056

Number of paragraphs: 17

Date of hearing: 22 January 2021

Place: Brisbane

Solicitor for the Applicant: Self-Represented

Solicitor for the Respondent: Self-Represented

Solicitor for the Independent Children's Lawyer: Mr Ashcroft, Dooley Solicitors
ORDERS

BRC 10793 of 2015

BETWEEN:
MR CLAYMAN

Applicant

AND:
MS BERRERA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

28 JANUARY 2021

THE COURT ORDERS THAT:
1.The Application in a Case filed at 9.43 am on 17 December 2020 and the Amended Application in a Case filed at 12.47 pm on 17 December 2020 are dismissed.
2.The Application in a Case filed 21 December 2020 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clayman & Berrera has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Hogan J

The Application in a Case filed 17 December 2020[1] and the Application in a Case filed 21 December 2020 are considered in circumstances where this matter is listed for final hearing commencing 10 May 2021.
[1]It was accepted by Mr Clayman at the hearing on 22 January 2021 that the Application in a Case filed at 9.43 am on 17 December 2020 and the Application in a Case filed at 12.47 pm on 17 December 2020 contain the same request for relief.
The Application for discharge of the Independent Children’s Lawyer
Mr Clayman sought an order discharging the current Independent Children’s Lawyer (whose appointment commenced on about 4 March 2020) on the bases particularised in the Application in a Case filed 17 December 2020. He supported the application by affidavits filed 17 December 2020 and 21 January 2021[2] and also relied on written submissions filed on 18 January 2021 and 20 January 2021.
[2]As well as referring, during the course of his submissions…

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 Clayman & Berrera

Details

AGLC: Clayman & Berrera [2021] FamCA 18
Case: [2021] FamCA 18
Decision Date: 28 January 2021

CaseChat Overview and Summary

In the matter of *Clayman & Berrera*, Hogan J of the Family Court of Australia considered an application by one of the parties for the discharge of an Independent Children's Lawyer (ICL). The core of the dispute revolved around whether the ICL should continue to represent the children's interests in the proceedings.

The primary legal issue before the Court was whether the grounds advanced by the applicant justified the discharge of the ICL. This required the Court to assess the conduct and role of the ICL in light of the relevant provisions of the *Family Law Act 1975* (Cth) and the Family Law Rules 2004 (Cth) concerning the appointment and discharge of ICLs.

Hogan J dismissed the applications for the discharge of the ICL. The reasons for this decision, though not detailed in the provided text, indicate that the Court found no sufficient grounds to warrant the removal of the ICL. Consequently, the applications filed on 17 December 2020 and 21 December 2020 were dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Case filed at 9.43 am on 17 December 2020 and the Amended Application in a Case filed at 12.47 pm on 17 December 2020 are dismissed.

2. The Application in a Case filed 21 December 2020 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clayman & Berrera has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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.

File number(s):	BRC 10793 of 2015
Judgment of:	HOGAN J
Date of judgment:	28 January 2021
Catchwords:	FAMILY LAW – Application for discharge of Independent Children’s Lawyer – Application dismissed
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	F and R (No. 2) (1992) FLC 92-314 In the Marriage of Bennett (1990) 14 Fam LR 397 Knibbs & Knibbs [2009] FamCA 840 Lloyd and Lloyd and Child Representative (2000) FLC 93-045 Lloyd and Lloyd and Child Representative (2000) FLC 93-045 P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (intervener) (1995) FLC 92-615 Re R (1995) FLC 92-564 Separate Representative v JHE and GAW (1993) 16 Fam LR 485 T & L (2000) FLC 93-056
Number of paragraphs:	17
Date of hearing:	22 January 2021
Place:	Brisbane
Solicitor for the Applicant:	Self-Represented
Solicitor for the Respondent:	Self-Represented
Solicitor for the Independent Children's Lawyer:	Mr Ashcroft, Dooley Solicitors

BRC 10793 of 2015
BETWEEN:	MR CLAYMAN Applicant
AND:	MS BERRERA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	28 JANUARY 2021