Catchwords: FAMILY LAW – Independent Children’s Lawyer – history of appointment of – role of Independent Children’s Lawyer – whether power of appointment of Independent Children’s Lawyer axiomatically carries with it the power to discharge the Independent Children’s Lawyer – review of authorities.
STATUTORY INTERPRETATION – No stipulation in Division 10 of Part 7 to power of removal of Independent Children’s Lawyer – proper interpretation of legislation.
STARE DECISIS – Long standing authority of Full Court of Family Court authorising orders for discharge of Independent Children’s Lawyer – authority too entrenched to doubt its application.
BIAS – Whether Independent Children’s Lawyer is amenable to removal for bias or for a reasonable apprehension of bias – Independent Children’s Lawyer not subject to rules applicable to courts and tribunals in relation to apprehended bias – father’s application for removal of Independent Children’s Lawyer dismissed.
[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
AGLC
HOWELL & CARTER (No.2) [2017] FCCA 377
Case
[2017] FCCA 377
Decision Date
CaseChat Overview and Summary
In the matter of *Howell & Carter (No.2)*, Judge Wilson of the Federal Circuit Court of Australia considered an application by a father seeking the removal of the Independent Children’s Lawyer (ICL) appointed in proceedings concerning his children. The dispute centred on the father's allegations of bias against the ICL.
The primary legal issues before the Court were whether the power to appoint an ICL axiomatically carries with it the power to discharge that ICL, and whether an ICL is amenable to removal for bias or a reasonable apprehension of bias. The Court also considered the proper interpretation of the relevant legislation, specifically Division 10 of Part 7 of the Family Law Act 1975 (Cth), and the application of the doctrine of *stare decisis* in light of long-standing Full Court authority.
Judge Wilson reasoned that while the legislation does not explicitly stipulate a power of removal for an ICL, the established authority of the Full Court of the Family Court of Australia, which has consistently authorised orders for the discharge of ICLs, was too entrenched to doubt its application. The Court further held that an ICL is not subject to the same rules regarding apprehended bias as apply to courts and tribunals. Consequently, the father's application for the removal of the ICL on the grounds of bias was dismissed.
The application filed by the father on 6 December 2016 was dismissed. The proceeding was transferred to the Melbourne Registry of the Family Court of Australia for listing with such priority as that Court deems appropriate, and costs were reserved.
Orders
Orders of the court
1.
The application in a case filed by the applicant on 6 December 2016 is dismissed.
2.
Pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth), this proceeding is transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.