GALLOWAY & OSBORNE

[2018] FamCA 223

FAMILY COURT OF AUSTRALIA

GALLOWAY & OSBORNE [2018] FamCA 223

FAMILY LAW – CHILDREN – Independent Children's Lawyer – Discharge.

APPLICANT: Ms Galloway

RESPONDENT: Ms Osborne

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: WOC 113 of 2015

DATE DELIVERED: 10 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 10 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: Hansons Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Fernie, Johnson Horsley Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

Consent Orders

1. “Without admissions”, and in consideration of Notation 2, Order 7 of the wife’s application in a case filed 10 November 2017 is dismissed.

2. The Court notes and the parties agree that the matter shall be remitted to the Legal Aid Commission of New South Wales for the appointment of an Independent Children’s Lawyer other than Mr P or a solicitor in the employ of Q Lawyers.

3. Each party shall pay their own costs of and incidental to Order 7 of the wife’s application in a case filed on 10 November 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 Galloway & Osborne 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 SYDNEY

FILE NUMBER: WOC 113 of 2015

Ms Galloway

Applicant

And

Ms Osborne

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Application was listed before me today seeking the discharge of the Independent Children’s Lawyer.  That application was resisted at the commencement of the hearing of the matter this afternoon.  Agreed terms have been handed up.  Terms are agreed by the mother, the father and the current Independent Children’s Lawyer; they will be marked exhibit C1.

2. Those terms do not discharge the Independent Children’s Lawyer but have practically the same effect in that all three parties seek that the matter be sent back to the Legal Aid Commission for the appointment of a fresh Independent Children’s Lawyer.  The timing of those orders is problematic given that the matter is shortly listed before Justice Rees for a review of the previous determination of the Registrar to make orders for the father to spend time with the child in this matter.  I am told that some events have overtaken the current circumstances of the case in that the single expert, Dr C, has prepared a report which will be available for the parties for the arguing of the matter before Justice Rees. 

3. The work of an Independent Children’s Lawyer is a difficult responsibility and should not lightly be undermined by the discharge of an Independent Children’s Lawyer.  It is appropriate that an Independent Children’s Lawyer take a stance in the appropriate case which stands in opposition of the position of either of the parties and which may be a position that one or more of the other parties do not accept. 

4. In this case assertions were made against the Independent Children’s Lawyer claiming that the Independent Children’s Lawyer had not taken appropriate steps, the Independent Children’s Lawyer did not accept that position, but also claiming that the Independent Children’s Lawyer had conducted himself in a manner which undermined an objective confidence in the objectivity of the Independent Children’s Lawyer, again those conclusions were resisted by the Independent Children’s Lawyer. 

5. What does seem reasonably clear is that there is certainly a breakdown in the trust of the Independent Children’s Lawyer that need not be determined given the position taken by all three of the parties. The common position of the three parties speaks persuasively to the appropriateness of the orders being made and I make orders in accordance with exhibit C1.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 April 2018.

Associate: 

Date:  10 April 2018