Earles and Highsmith (No 3) - [2012] FamCA 948

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH (NO 3)

[2012] FamCA 948

FAMILY COURT – PRACTICE AND PROCEDURE – Application to discharge the Independent Children’s Lawyer from further participation in the proceedings on the grounds of actual bias or apprehended bias – Whether an exchange between the Applicant’s counsel and the Independent Children’s Lawyer outside the courtroom amounted to actual bias, or the lesser standard of apprehended bias as per Ebner & Official Trustee in Bankruptcy – Applicant’s case not made out – Application dismissed

Family Law Act 1975 (Cth)

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Knibbs & Knibbs [2009] FamCA 840
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
T and L (2000) FLC 93-056; 27 Fam LR 40; [2000] FamCA 351

APPLICANT:

Ms Earles

RESPONDENT:

Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER:

MS Soliman

FILE NUMBER:

PAC

5328

2008

DATE DELIVERED:

13 November 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

13 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr de Robillard

SOLICITOR FOR THE APPLICANT:

Mother in person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Ms Anderson, Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms De Vere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Soliman, Legal Aid NSW, Parramatta Family Law

Orders

That the notice for publication, amended this day, be forwarded to the Publication’s Officer of this Court (Ms X) within forty-eight (48) hours of this date.
That the costs of the parties that is the mother and the father, with respect to the publications notice, be reserved.
That I dismiss the mother’s application in a case filed:
(a)       16 October 2012;
(b)       13 November 2012; and
(c)       13 November 2012.
That leave is granted to the Independent Children’s Lawyer to make an application for costs.
That within fourteen (14) days the mother and/or her legal representative shall write to the Independent Children’s Lawyer requesting further information and particulars with respect to the Independent Children’s Lawyer’s application for costs.
That upon the Independent Children’s Lawyer furnishing such material the matter may be relisted before me upon seven (7) days notice by arrangement with my Associate.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5328 of 2008

Ms Earles

Applicant

And

Mr Highsmith

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The application I am presently required to determine is that of the mother to be found in her Application in a Case e-filed on 16 October 2012. In that document, the mother sought that the Independent Children’s Lawyer, namely, Ms Christine Soliman, be removed from further participation in this matter on the grounds of bias or apprehended bias. Ms Soliman was, of course, the Independent Children’s Lawyer duly appointed and as such, having conduct…

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 Earles and Highsmith (No 3)

Details

AGLC: Earles and Highsmith (No 3) [2012] FamCA 948
Case: [2012] FamCA 948
Decision Date: 13 November 2012

CaseChat Overview and Summary

In *Earles and Highsmith (No 3)*, Collier J of the Family Court of Australia considered applications made by the mother concerning publications related to the proceedings. The father was also a party to the proceedings.

The primary legal issue before the court was the mother's applications concerning the publication of information related to the case. The court also had to determine the costs associated with the publication notice and the mother's dismissed applications, as well as consider an application for costs by the Independent Children’s Lawyer.

Collier J dismissed the mother's applications filed on 16 October 2012 and 13 November 2012. The court reserved the costs of both the mother and the father in relation to the publication notice. Leave was granted to the Independent Children’s Lawyer to make an application for costs, and directions were given for the mother or her legal representative to request further information regarding this application, after which the matter could be relisted.

Orders

Orders of the court

That the notice for publication, amended this day, be forwarded to the Publication’s Officer of this Court (Ms X) within forty-eight (48) hours of this date.

That the costs of the parties that is the mother and the father, with respect to the publications notice, be reserved.

That I dismiss the mother’s application in a case filed:

(a) 16 October 2012;

(b) 13 November 2012; and

That leave is granted to the Independent Children’s Lawyer to make an application for costs.

That within fourteen (14) days the mother and/or her legal representative shall write to the Independent Children’s Lawyer requesting further information and particulars with respect to the Independent Children’s Lawyer’s application for costs.

That upon the Independent Children’s Lawyer furnishing such material the matter may be relisted before me upon seven (7) days notice by arrangement with my Associate.

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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