FAULKNER & JACOBS - [2013] FamCAFC 83

FAMILY COURT OF AUSTRALIA

FAULKNER & JACOBS

[2013] FamCAFC 83

FAMILY LAW – APPEAL – leave to appeal against orders dismissing the appellant father’s application that an order appointing Ms D as the Independent Children’s Lawyer in the matter be discharged and another person appointed in her stead

Family Law Act 1975 (Cth)

APPELLANT:

Mr Faulkner

RESPONDENT:

Ms Jacobs

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

APPEAL NUMBER:

140

2012

FILE NUMBER:

CAC

130

2011

DATE DELIVERED:

29 May 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

16 May 2013

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Watts JJ

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

21 September 2012

LOWER COURT MNC:

[2012] FMCAfam 1015

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Keith Nicholson

SOLICITOR FOR THE APPELLANT:

Melanie Davison of Schetzer Constantinou Lawyers

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Alexandra Wearne

Orders made 16 May 2013

The appellant’s application to adduce further evidence be dismissed.
The appellant’s application for leave to appeal be dismissed.
The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $1875.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 140 of 2012
File Number: CAC 130 of 2011

Mr Faulkner

Appellant

And

Ms Jacobs

Respondent

REASONS FOR JUDGMENT

By draft notice of appeal filed on 19 October 2012, Mr Faulkner (“the father”) appealed against orders made by Federal Magistrate Neville on 21 September 2012 dismissing the father’s application that the order appointing Ms D as the Independent Children’s Lawyer (“the ICL”) in the matter be discharged and another person appointed in her stead.
The ICL opposes the father being granted leave to appeal and, if leave be granted, resists the appeal and seeks to maintain the Federal Magistrate’s decision. The mother, Ms Jacobs, did not appear.
At the conclusion of the hearing, we refused to grant leave to appeal to the father. The father also applied for leave to adduce further evidence. That application was dismissed.
We indicated that we would deliver reasons for our decision at a later date. These are those reasons.

Background

The Federal Magistrate’s reasons give what appears to be an uncontroversial history of the proceedings. We will recount some of that history to give a context to the appeal.
The proceedings involve two children of the father and the mother, Y and X.
On 9 August 2011 the Federal Magistrate made orders, inter alia, appointing an ICL.
In November 2011 the court released a family consultant’s report in which the family consultant recorded (as the Federal Magistrate describes at [14]): “an allegation/disclosure of abuse against the Father by [Y], which she made to her Mother”. The family consultant’s…

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 FAULKNER & JACOBS

Details

AGLC: FAULKNER & JACOBS [2013] FamCAFC 83
Case: [2013] FamCAFC 83
Decision Date: 29 May 2013

CaseChat Overview and Summary

The appeal was brought by Mr Faulkner (the father) against orders made by the Federal Magistrate dismissing his application that an order appointing Ms D as the Independent Children’s Lawyer in the matter be discharged and another person appointed in her stead. The appeal was dismissed, and the father was ordered to pay the costs of the Independent Children’s Lawyer. The father had alleged that the Independent Children’s Lawyer was biased against him, and that she had usurped the function of the court in refusing to forward to the court-appointed expert a report procured by the father from another expert. The father had also alleged that a letter written to the father’s solicitors by the Independent Children’s Lawyer was intended to put pressure on the father. The father’s counsel conceded that there was no basis on which the father could sustain the allegation of bias, and the court held that the appeal was wholly without merit.

The appeal was brought by Mr Faulkner, the father, against orders made by the Federal Magistrate dismissing his application that the order appointing Ms D as the Independent Children’s Lawyer in the matter be discharged and another person appointed in her stead. The father had alleged that the Independent Children’s Lawyer was biased against him, and that she had usurped the function of the court in refusing to forward to the court-appointed expert a report procured by the father from another expert. The father had also alleged that a letter written to the father’s solicitors by the Independent Children’s Lawyer was intended to put pressure on the father. The court found that the father’s allegations were without merit, and dismissed the appeal. The father’s counsel conceded that there was no basis on which the father could sustain the allegation of bias, and the court held that the appeal was wholly without merit. The father was ordered to pay the costs of the Independent Children’s Lawyer.

The Full Court of the Family Court of Australia dismissed the father’s appeal against orders made by the Federal Magistrate dismissing his application that an order appointing Ms D as the Independent Children’s Lawyer in the matter be discharged and another person appointed in her stead. The father had alleged that the Independent Children’s Lawyer was biased against him, and that she had usurped the function of the court in refusing to forward to the court-appointed expert a report procured by the father from another expert. The father had also alleged that a letter written to the father’s solicitors by the Independent Children’s Lawyer was intended to put pressure on the father. The father’s counsel conceded that there was no basis on which the father could sustain the allegation of bias, and the court held that the appeal was wholly without merit. The father was ordered to pay the costs of the Independent Children’s Lawyer.

The Full Court ordered that the father pay the costs of the Independent Children’s Lawyer fixed in the sum of $1,875.

Orders