HOGARTH & SCRIVENS - [2018] FCCA 3754

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOGARTH & SCRIVENS

[2018] FCCA 3754

Catchwords:
FAMILY LAW – Parenting – Father’s application to discharge the Independent Children’s Lawyer due to perceived bias.

Legislation:

Family Law Act 1975 (Cth), ss.68L, 68LA

Cases cited:

Dickens & Dickens [2016] FamCA 115

Horner & Horner [2018] FamCA 487
Lloyd & Lloyd & The Child Representative (2000) FLC 93-045

Applicant:

MR HOGARTH

Respondent:

MS SCRIVENS

File Number:

MLC 2643 of 2016

Judgment of:

Judge Williams

Hearing date:

15 November 2018

Date of Last Submission:

15 November 2018

Delivered at:

Melbourne

Delivered on:

17 December 2018

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Ms A Carter

Solicitors for the Respondent:	Wisewould Mahony Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Goddard
Solicitors for the Independent Children’s Lawyer:	Ebejer and Associates

ORDERS

The Applicant’s application to discharge the Independent Children’s Lawyer is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hogarth & Scrivens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2643 of 2016

MR HOGARTH

Applicant

And

MS SCRIVENS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is the father and the respondent is the mother of the child [X] born 2016.
The substantive litigation between the parties pertains to [X]’s living and spend time arrangements.
The discrete application before the court is the father’s application to discharge the Independent Children’s Lawyer.
The father sought to pursue his application on the morning when the matter was listed for a final determination of the parenting dispute.
Notwithstanding that the determination of the preliminary application would delay the ultimate trial, the father sought to proceed with his application.
On that day, I made orders as follows:
i)The father’s application to discharge the Independent Children’s Lawyer should be dismissed;
ii)The costs of the day incurred by the mother and the Independent Children’s Lawyer are reserved;
iii)Adjourning the matter for mention on 4 February 2019.
The reasons for my determination follow.

Background

Due to the limited nature of the dispute it is not necessary to comprehensively traverse the relevant factual background. I will do so only briefly.
The mother is currently 39 years of age and is employed as a professional.
The father is currently 47 years of age and is employed as a manager.
In May 2015 the parties met through a dating website and had a brief relationship of approximately three weeks.
On … 2016 the parties’ son, [X] was born.
The parties have had an acrimonious and highly conflictual relationship since [X]’s birth.
The father initiated proceedings in this court on 30 March 2016, when [X] was approximately … weeks old.
There have been numerous interim hearings since the filing of the father’s application.
An order for the appointment of an Independent Children’s Lawyer was made on 17 November 2016.
The trial was fixed for hearing on 15 November 2018. On the morning of the hearing the father sought to proceed with his…

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 HOGARTH & SCRIVENS

Details

AGLC: HOGARTH & SCRIVENS [2018] FCCA 3754
Case: [2018] FCCA 3754
Decision Date: 17 December 2018

CaseChat Overview and Summary

In the Family Court of Australia, Judge Williams considered an application by the father (the Applicant) seeking to discharge the Independent Children’s Lawyer (ICL) appointed in parenting proceedings. The Applicant alleged that the ICL exhibited perceived bias, leading to concerns about their ability to act impartially in representing the children’s best interests.

The central legal issue before the Court was whether the conduct or perceived bias of the ICL was such that it warranted their removal from the proceedings. This required the Court to assess the ICL's role, the nature of the alleged bias, and the potential impact on the children's interests and the fairness of the proceedings.

Judge Williams dismissed the Applicant's application. The Court's reasoning, though not detailed in the provided text, would have involved an assessment of the evidence presented regarding the alleged bias and a determination of whether that evidence met the threshold for discharging an ICL. The Court would have applied the principles governing the appointment and removal of ICLs, which generally require a high degree of impropriety or a fundamental breakdown in the ICL's ability to fulfil their mandate to justify such a drastic step. The Court’s decision to dismiss the application indicates that the Applicant did not establish sufficient grounds to warrant the ICL’s discharge.

Orders

Orders of the court

The Applicant’s application to discharge the Independent Children’s Lawyer is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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