COBB & COBB (No.2) - [2015] FCCA 2766

FEDERAL CIRCUIT COURT OF AUSTRALIA

COBB & COBB (No.2)

[2015] FCCA 2766

Catchwords:
FAMILY LAW – Application to discharge the Independent Children’s Lawyer – confidential information received during mediation – nature of the role of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.12A, 68LA

McMillan and McMillan (2000) FLC 93 – 048
Bennett and Bennett (1991) FLC 92-191
Lloyd v Lloyd and Child Representative (2000) FLC 93-045
T and L (2000) FLC 93-056
Re R (1995) FLC 92-564

Applicant:

MR COBB

Respondent:

MS COBB

File Number:

MLC 3140 of 2014

Judgment of:

Judge Harland

Hearing date:

6 May 2015

Date of Last Submission:

6 May 2015

Delivered at:

Melbourne

Order (1) Delivered on:

6 May 2015

Orders (2) & (3) & Reasons Delivered on:

12 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Berger Kordos Lawyers

Counsel for the Respondent:

Ms Dellidis

Solicitors for the Respondent:

Mitchell Family Law

Counsel for the Independent Children's Lawyer:

Mr Lethlean

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS DELIVERED 6 May 2015

The Application in a Case filed by the Applicant on 14 April 2015 be dismissed.

ORDERS DELIVERED 12 October 2015

That within 60 days of the date of these orders the father pay the mother’s costs in the sum of $2,744.
That within 60 days of the date of these orders the father pay the Independent Children’s Lawyer’s costs in the sum of $1,900.

IT IS NOTED that publication of this judgment under the pseudonym Cobb & Cobb (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3140 of 2014

MR COBB

Applicant

And

MS COBB

Respondent

REASONS FOR JUDGMENT

This is an interlocutory application for the discharge of the Independent Children’s Lawyer (“ICL”) and the appointment of a new ICL. I heard the application and made orders on 6 May 2015. As the matter was listed for final hearing before Judge Bender and given the nature of the issues raised before me, at the request of counsel, I agreed not to deliver reasons until after Judge Bender had heard and delivered reasons in the substantive decision. This has now occurred.
The application arises in unusual circumstances. Mr Puckey was at pains to point out that there is no suggestion of criticism of Ms Sinclair’s conduct in carrying out her duties as ICL. The issue arises as a result of a mediation which was conducted, deliberately in the absence of the ICL.
The mother and father organised a private mediation for the purpose of trying to resolve parenting and property issues. The father seeks to have the ICL discharged on the basis of confidential information discussed at the mediation being revealed to the ICL. The father complains that this is in breach of the mediation agreement. The mother says it was not in breach of the mediation agreement. It is not necessary to determine that issue for reasons which…

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 COBB & COBB (No.2)

Details

AGLC: Cobb and Cobb (No.2) [2015] FCCA 2766
Case: [2015] FCCA 2766
Decision Date: 12 October 2015

CaseChat Overview and Summary

In the matter of *Cobb & Cobb (No.2)*, Judge Harland of the Family Court of Australia considered an application filed by the Applicant on 14 April 2015. The specific nature of the dispute between the parties, identified as the father and mother, is not detailed in the provided text, beyond the fact that it involved an application concerning children, as indicated by the involvement of an Independent Children’s Lawyer.

The court was required to determine the merits of the Applicant's application filed on 14 April 2015. Following this determination, the court also had to consider and make orders regarding the costs of the proceedings, specifically the mother's costs and the Independent Children's Lawyer's costs.

On 6 May 2015, Judge Harland dismissed the Applicant's application. Subsequently, on 12 October 2015, the court ordered that the father pay the mother's costs in the sum of $2,744 and the Independent Children's Lawyer's costs in the sum of $1,900, both sums to be paid within 60 days of the date of those orders.

Orders

Orders of the court

ORDERS DELIVERED 6 May 2015

1. The Application in a Case filed by the Applicant on 14 April 2015 be dismissed.

ORDERS DELIVERED 12 October 2015

1. That within 60 days of the date of these orders the father pay the mother’s costs in the sum of $2,744.

2. That within 60 days of the date of these orders the father pay the Independent Children’s Lawyer’s costs in the sum of $1,900.

Background

Background to the litigation

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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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