Fierro & Fierro - [2022] FedCFamC1F 254

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fierro & Fierro [2022] FedCFamC1F 254

File number: SYC 7639 of 2021

Judgment of: MCGUIRE J

Date of judgment: 22 April 2022

Catchwords: FAMILY LAW – CHILDREN – Independent children’s lawyer – Application for removal of the independent children’s lawyer – whether independent children’s lawyer has complied with obligations under the Family Law Act 1975 (Cth) s 68LA – whether removal is justified – application dismissed

Legislation: Family Law Act 1975 (Cth) ss 68L and 68LA

Cases cited:
Horner & Horner [2018] FamCA 487

Rice & Asplund (1979) FLC 90 - 725

Division: Division 1 First Instance

Number of paragraphs: 28

Date of hearing: 13 April 2022

Place: Hobart

Solicitor for the Applicant: Litigant in Person

Solicitor for the First Respondent: Litigant in Person

Counsel for the Second Respondent: Mr Trezise

Solicitor for the Second Respondent: Dobson Mitchell Allport

Counsel for the Independent Children’s Lawyer: Ms Mooney SC

Solicitor for the Independent Children’s Lawyer: Legal Aid Commission
ORDERS

SYC 7639 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FIERRO

Applicant

AND:
MR A FIERRO

First Respondent

MS BIEN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:
1.That the application filed for removal of the Independent Children’s Lawyer on 27 of March 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Fierro & Fierro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATION

The application before me is one to discharge the appointment of the independent children's lawyer (‘ICL’), Simone Watson, a solicitor employed by the Legal Aid Commissioner.
The applicant is Mr Fierro who is the applicant in substantive proceedings in respect of the one child being X born in 2008 (aged 14 years).
The applicant is the child's adult brother. The child's father, Mr A Fierro, is the first respondent to these proceedings. The child's mother, Ms Bien, is the second respondent.
There are concurrent proceedings in respect of the child where the applicant is Mr C. He is 18 years of age and is the child’s relative and hence the applicant’s relative. Suffice to say that the family dynamics are complex. The applicant is not…

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 Fierro & Fierro

Details

AGLC: Fierro & Fierro [2022] FedCFamC1F 254
Case: [2022] FedCFamC1F 254
Decision Date: 22 April 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Mr Fierro, sought the removal of the Independent Children's Lawyer (ICL) appointed in a family law matter. The application was opposed by the ICL and the other parties, including the first respondent, Mr A Fierro, and the second respondent, Ms Bien. The ICL, Ms Watson, was appointed to represent the interests of the child in the proceedings.

The primary legal issue before the court was whether the ICL had fulfilled her obligations under section 68LA of the Family Law Act 1975 (Cth) and whether her removal was warranted. The court examined the evidence and submissions provided by the applicant, the ICL, and the other respondents to determine if the ICL had acted appropriately and competently in her role. The applicant alleged that the ICL had informed the child of conflicts between him and other family members, which he considered inappropriate. The court assessed whether such actions constituted a breach of the ICL's duties.

The court found no merit in the application for the removal of the ICL. The judge noted that the ICL was entitled to form her own viewpoint, recommendations, and preferred course of action based on the evidence presented. The judge did not find any evidence of incompetence or misconduct on the part of Ms Watson. Consequently, the application to discharge the ICL was dismissed.

The court ordered that the application filed for the removal of the ICL on 27 March 2022 be dismissed. The judge indicated that costs would be considered after hearing from counsel and the parties involved.

Orders

Orders of the court

SYC 7639 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FIERRO

Applicant

AND:

MR A FIERRO

First Respondent

MS BIEN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:

1. That the application filed for removal of the Independent Children’s Lawyer on 27 of March 2022 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The remainder of the applicant's affidavit reference factual disputes between he and the other parties, notably the first respondent father, where, as mentioned above, the ICL was at all times entitled to form from the evidence a viewpoint, recommendation, and preferred course of action. Specifically, the applicant alleges that the ICL informed the child of the conflict between the applicant and his other sister, Ms F and/or conflict between the applicant and the first respondent. I note the age of the child. Yet again, such disclosures are the province of an informed and experienced ICL. That fact itself does not persuade me of any incompetence in Ms Watson as ICL. CONCLUSION In all the circumstances, I find no merit in the application by Mr Fierro to discharge the appointment of the ICL. The application will be dismissed. I will hear counsel and the parties in respect of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 7639 of 2021
Judgment of:	MCGUIRE J
Date of judgment:	22 April 2022
Catchwords:	FAMILY LAW – CHILDREN – Independent children’s lawyer – Application for removal of the independent children’s lawyer – whether independent children’s lawyer has complied with obligations under the Family Law Act 1975 (Cth) s 68LA – whether removal is justified – application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 68L and 68LA
Cases cited:	Horner & Horner [2018] FamCA 487 Rice & Asplund (1979) FLC 90 - 725
Division:	Division 1 First Instance
Number of paragraphs:	28
Date of hearing:	13 April 2022
Place:	Hobart
Solicitor for the Applicant:	Litigant in Person
Solicitor for the First Respondent:	Litigant in Person
Counsel for the Second Respondent:	Mr Trezise
Solicitor for the Second Respondent:	Dobson Mitchell Allport
Counsel for the Independent Children’s Lawyer:	Ms Mooney SC
Solicitor for the Independent Children’s Lawyer:	Legal Aid Commission

SYC 7639 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FIERRO Applicant
AND:	MR A FIERRO First Respondent MS BIEN Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	22 APRIL 2022