Jacobs and Faulkner - [2012] FMCAfam 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JACOBS & FAULKNER

[2012] FMCAfam 1015

FAMILY LAW – Independent Children’s Lawyer – alleged apprehension of bias of ICL against a parent – principles to apply on application to discharge ICL – alleged failure to provide Court appointed expert with report commissioned by a party – no application made pursuant to Court rules to use second report prepared by [non-court appointed] expert – distinction between procedural decisions of ICL and those going to substantive matters for determination by Court.

Family Law Act 1975, ss.60CA, 68L, 68LA, 68LA(2) & (5)
Family Law Rules 2004, r.15.49
Federal Magistrates Court Rules2001, rr.15.09, 15.10, 15.12

Antoun v The Queen (2006) ALJR 497; (2006) ALR 51
In the Marriage of Bennett (1994) 17 Fam LR 561
Bondai & Bretton (No.2) [2010] FamCA 1237
In the Marriage of Boseley v Lyons (1978) 4 FamLN 17; [1978] FLC ¶90-423
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
In the Marriage of Harris [1977] FLC ¶90-276
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Re JRL; ex parte CJL (1986) 161 CLR 342
Knibbs & Knibbs [2009] FamCA 840
Langmeil v Grange (No.3) [2011] FamCA 171
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Lloyd & Lloyd and Child Representative (2000) FLC ¶93-045
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
In the Marriage of Pagliarella (1993) 16 Fam LR 688
SPS & PLS (2008) FLC ¶93-363
T v L (2001) 27 Fam LR 40
W & M & W [2006] FamCA 512
In the Marriage of Wotherspoon & Cooper (1980) 7 Fam LR 71; [1981] FLC ¶91-029

Applicant:

MS JACOBS

Respondent:

MR FAULKNER

File Number:

CAC 130 of 2011

Judgment of:

Neville FM

Hearing date:

24 July 2012

Date of Last Submission:

24 July 2012

Delivered at:

Canberra

Delivered on:

21 September 2012

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr J Naumann

Solicitors for the Applicant:

Walsh & Blair, Wagga Wagga

Counsel for the Respondent:

Mr K Nicholson

Solicitors for the Respondent:

Schetzer Constantinou, Melbourne

Counsel for the Independent Children’s Lawyer:

Mr C Sperling

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW (Wagga Wagga)

ORDERS

The Application in a Case, filed on 2^nd July 2012, with respect to the discharge of the Independent Children’s Lawyer, be dismissed.
The costs of the Independent Children’s Lawyer be paid by the Father, either as agreed or taxed.
The matter be adjourned for further mention to 10^th October 2012 at 10 am in Wagga Wagga.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT WAGGA WAGGA

CAC 130 of 2011

MS JACOBS

Applicant

And

MR FAULKNER

Respondent

REASONS FOR JUDGMENT

Introduction

On 9^th August 2011, this Court ordered that there be appointed…

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 Jacobs and Faulkner

Details

AGLC: JACOBS & FAULKNER [2012] FMCAfam 1015
Case: [2012] FMCAfam 1015
Decision Date: 21 September 2012

CaseChat Overview and Summary

The case of Jacobs and Faulkner involved the father, seeking to discharge the Independent Children's Lawyer appointed to represent his children in a family law matter. The Independent Children's Lawyer opposed the father's application, and the court was required to determine whether the discharge of the lawyer was in the best interests of the children. The dispute centred on the necessity and appropriateness of the Independent Children's Lawyer's continued involvement in the case.

The legal issues before the court included whether the discharge of the Independent Children's Lawyer was justified and in the best interests of the children. The court had to consider the role of the Independent Children's Lawyer in family law proceedings and whether the father's application aligned with the statutory objectives of providing independent representation for the children. The court also had to assess the evidence and arguments presented by both parties to determine the appropriate course of action.

The court dismissed the father's application to discharge the Independent Children's Lawyer, finding that the lawyer's continued involvement was in the best interests of the children. The court emphasised the importance of the Independent Children's Lawyer in ensuring that the children's voices were heard and their interests protected in family law proceedings. The court ordered that the costs of the Independent Children's Lawyer be paid by the father, either as agreed or taxed, and the matter was adjourned for further mention.

Orders

Orders of the court

The Application in a Case, filed on 2nd July 2012, with respect to the discharge of the Independent Children’s Lawyer, be dismissed.

The costs of the Independent Children’s Lawyer be paid by the Father, either as agreed or taxed.

The matter be adjourned for further mention to 10th October 2012 at 10 am in Wagga Wagga.

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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