Duarte and Morse

[2017] FamCA 350

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE [2017] FamCA 350

FAMILY LAW – INTERIM – Discharge of the Independent Children's Lawyer – Application for writ of Certiorari – Whether the Court has jurisdiction to issue writ of Certiorari – Whether the Court should restore previous Interim parenting orders – Whether the Court should strike out Filed Form 4 documents

Craig v South Australia (1995) 184 CLR 163
JB & BW (Application to extend time for Appeal) [2010] FamCAFA 144
McNamara & Rose [2007] FamCA 529
Re K (1994) FLC 92-461

Family Law Act 1975 (Cth)

APPLICANT: Ms Duarte

RESPONDENT: Mr Morse

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 16 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 3 March 2016, 6 December 2016, 27 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : Ms Shae

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : Hamish Cumming Family Lawyers

Orders

1. The appointment of the Independent Children's Lawyer is hereby discharged.

2. The mother’s Application in a Case filed 11 November 2015 and that filed 1 October 2014 is dismissed.

3. The mother’s Application in a Case filed 11 December 2014 is dismissed.

4. Should the final hearing of the parenting matters not proceed as scheduled on 26 June 2017, the mother has leave to renew any application for interim parenting orders she may seek.

5. I reserve each party’s costs of the determination of the mother’s applications set out above.

6. I reserve the right of the Independent Children's Lawyer to seek an order for costs incurred in acting as Independent Children's Lawyer during the period of the appointment. The Independent Children's Lawyer is to make any such application no later than 28 days after the conclusion of the parenting case listed to commence on 26 June 2017.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 737/2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. This determination addresses applications made by the mother Ms Duarte. The orders sought are as follows:-

   a)An Application in a Case filed 11 November 2015 (order 5 as sought in that application);

   b)An Application in a Case filed 1 October 2014 (order 5 as sought); and

   c)An Application…