Fielding & Mason

In the matter of SYC 5298 of 2009, Ms Fielding (the Applicant mother) applied to the Family Court of Australia for the discharge of the Independent Children’s Lawyer (ICL) appointed in proceedings concerning her two children, X and Y, who were residing with their father, Mr Mason (the Respondent). The dispute involved competing applications by the parents for the children to live with them and spend time with the other, with the children currently living with the father and not spending time with the mother.

The Court, presided over by Altobelli J, was required to determine whether the ICL had acted independently and in the best interests of the children, such that there was a basis for their dismissal. The mother's application to discharge the ICL was central to the proceedings, occurring at a critical stage as the matter was listed for a four-day final hearing.

Altobelli J reasoned that the ICL owes a duty to the Court, not to the parents. While acknowledging the mother's understandable concerns and frustration with the litigation process, the Court found no grounds to support the discharge of the ICL. The Judge concluded that it would be neither in the children's interests nor in the public interest to discharge the ICL at such a crucial juncture, particularly when detailed preparation for the final hearing was necessary.

Consequently, the mother's application for the Independent Children’s Lawyer to be discharged was dismissed. The matter was subsequently listed for a mention on 15 March 2021.