Gillen & Lindo - [2021] FedCFamC1F 7

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gillen & Lindo [2021] FedCFamC1F 7

File number(s): CAC 2594 of 2019

Judgment of: GILL J

Date of judgment: 2 September 2021

Catchwords: FAMILY LAW – CHILDREN – Independent children’s lawyer – Application for discharge of the ICL – Whether ICL 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) s 68LA

Cases cited:
Howell & Carter (No 2) (2017) 317 FLR 151

Lloyd & Lloyd and Child Representative (2000) FLC 93-045

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 26 August 2021

Place: Canberra

Counsel for the Applicant: Ms Clifton

Solicitor for the Applicant: Enza Ruscica Solicitors

Solicitor for the Respondent: Crampton Legal

Counsel for the Independent Children's Lawyer: Ms Davis

Solicitor for the Independent Children's Lawyer: Legal Aid, ACT
ORDERS

CAC 2594 of 2019

BETWEEN:
MS LINDO

Applicant

AND:
MR GILLEN

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The mother’s Application in a Case filed 16 July 2021 seeking the discharge of the Independent Children's Lawyer (ICL) and appointment of a replacement ICL is dismissed.
2.In the event that a party seeks the costs of this application, that party is to file submissions in writing in respect of such, accompanied by a schedule setting out the costs sought and their basis, within fourteen days of this judgment.
3.In the event that a party resists costs as sought by another party, that party is to file and serve written submissions in respect of such within 28 days of this judgment.
4.The proceedings are otherwise listed before the Registrar for further directions on a date to be advised.

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 the pseudonym Gillen & Lindo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J

These proceedings concern an Application in a Case filed by the mother seeking the removal of the current Independent Children's Lawyer (the ICL) in this matter, Ms Cruise. The mother's application is opposed by both the father and the ICL.
Each of the parties has filed a case outline document canvassing the various material relied upon and the case…

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.

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Details

Case: [2021] FedCFamC1F 7
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia addressed an application for the removal of the Independent Children's Lawyer (ICL) in a case involving family law matters. The applicant, Ms. Lindo, sought the removal of Ms. Cruise, the ICL, citing alleged non-compliance with her duties under section 68LA of the Family Law Act 1975 (Cth). This section outlines the role and responsibilities of an ICL, including forming an independent view of the child's best interests and acting impartially. Ms. Lindo's application was opposed by both Mr. Gillen and the ICL, who argued that Ms. Cruise had not breached her obligations.

The court had to determine whether Ms. Cruise had failed to act in accordance with her statutory duties and whether such failures warranted her removal. Ms. Lindo's primary contention was that Ms. Cruise's recommendation for the father to transition to unsupervised visitation was inconsistent with the evidence of family violence and therefore not in the best interest of the child. The court examined the context in which Ms. Cruise formed her view, considering the timing and content of the ICL's submissions, and whether these were sufficiently informed by the available evidence.

After careful consideration, the court concluded that Ms. Cruise's recommendation, although differing from Ms. Lindo's position, was not so unreasonable as to justify her removal. The court found that Ms. Cruise had exercised her professional judgment within the bounds of her role and that her recommendation did not demonstrate a lack of impartiality or an egregious departure from her duties. Therefore, the application to remove the ICL was dismissed. The court also noted that the issue of costs would be addressed through written submissions by the parties.

Orders