Corbin and Corbin

[2009] FamCA 988

FAMILY COURT OF AUSTRALIA

CORBIN & CORBIN [2009] FamCA 988

FAMILY LAW – PRACTICE AND PROCEDURE – Discontinuance

Family Law Act 1975 (Cth)

APPLICANT: Mr Corbin

RESPONDENT: Ms Corbin

INDEPENDENT CHILDREN’S LAWYER: Mr Grant

FILE NUMBER: BRC 5029 of 2009

DATE DELIVERED: 9 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Page, Solicitor, of Harrington Family Lawyers of Brisbane

SOLICITOR FOR THE RESPONDENT: Mr Vaughan, Solicitor, of Brisbane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Grant, Solicitor, of Grant & Associates, Brisbane

Orders

1. The Applicant have leave to file a Notice of Discontinuance in respect to the Application filed on 11 June 2009.

2. The Respondent have leave to file a Notice of Discontinuance in respect to the Response filed on 8 July 2009.

3. The Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5029 of 2009

MR CORBIN

Applicant

And

MS CORBIN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Within Australia’s federal system, this Court’s province and power is established by the Family Law Act (“the Act”), a Commonwealth piece of legislation.  Legislation in all the of the states, including Queensland, has a broader base, creating obligations upon specified state agencies, to take action in circumstances specified under that legislation, where children are in danger.

2. An essential difference between the two systems is that the state legislation is designed to be, as it were, emergency legislation, providing power to remove children from circumstances of harm where complaints are made.

3. By contrast, the Family Law Act charge this Court with responsibilities towards children, and the power to make orders with respect to children, in circumstances where issues are joined between those people given the capacity to institute, and respond to, proceedings, under the Act.

4. Relevantly, they are the parents of children, and those concerned in the care, welfare and development of children.

5. In this particular case, issue was joined between two parents in respect of parenting orders, and, in the context of those proceedings, an independent children’s lawyer was appointed. 

6. The independent children’s lawyer is a creature of statute, and has a number of obligations deriving from the appointment, many of which I recently referred to in a decision reported as Knibbs & Knibbs.

7. In this case, the parties, through their respective legal practitioners, inform the Court that they have entered a parenting plan.  That has occurred only recently, and as Mr Page, who appears on behalf of the father, submits, the independent children’s lawyer in this case is taken somewhat by surprise by that development. 

8. The parenting plan is entered into between these two parents, in circumstances where the relevant Queensland department has indicated, apparently, that their investigations into a statement to them asserting harm, are unsubstantiated.

9. Interestingly, the Act does not provide for the court to have any form of supervening or other role, with respect to parenting plans.

10. Those plans are, as the statute contemplates, arrangements arrived at by the parents themselves, albeit often with advice, from legal practitioners and, sometimes, social scientists.  Such is the case here. 

11. The independent children’s lawyer, who is a creature of statue and derives his authority only by reason of an appointment made by this court, within the context of proceedings in this court, has different obligations; primarily, of course, obligations directed towards the best interests of the child.

12. Accordingly, it is entirely appropriate that an independent children’s lawyer, charged with those statutory and other responsibilities, ought make submissions to a court that a parenting plan arrived at between parties is not considered by him to necessarily be in the best interests of the particular child or children.  Again, such is the case here.

13. Here, the independent children’s lawyer seeks to keep the proceedings, “on foot” so as to “monitor” the parental arrangements.

14. However, despite those submissions, quite properly made, the legislation is framed in such a way that where parties arrive at their own arrangements via the entering into of a parenting plan, and, thereafter, decide to bring an end to proceedings in this court, the Court is, in my view, functus officio.

15. Although having the rights and obligations of a party, the independent children’s lawyer does not join issue with either parent in the seeking of parenting orders.

16. It is entirely open to one or other, or both of the parties, to file a notice of discontinuance in the registry of this court. In those circumstances, the proceedings would be brought to an end without further order. The Act does not provide for “sanction” or other “approval” or supervision of that plan.

17. Here, leave is sought to file notices of discontinuance in circumstances where the matter comes before me as part of this court’s Magellan directions list.  Leave is sought because the filing of the document can be allowed by me, in the course of those proceedings, as distinct from being accepted by the registry staff, as it were, across the counter.

18. Accordingly, it seems to me that I should grant leave to both parties to file a notice of discontinuance in respect of these proceedings, at which time, these proceedings come to an end.

19. By dint of that occurrence, the appointment of the independent children’s lawyer comes to an end.

20. I will, then, give leave to read and file those notices of discontinuance.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:     

Date:              20 October 2009