JARDINE & SACKVILLE - [2019] FamCA 458

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE

[2019] FamCA 458

FAMILY LAW – PRACTICE AND PROCEDURE – INDEPENDENT CHILDREN’S LAWYER – Bias – Where the father makes an oral application for the discharge of the Independent Children’s Lawyer and the re-appointment of another – Where the father believes the current Independent Children’s Lawyer lacks impartiality – Where the Independent Children’s Lawyer’s bias is not established just because the father believes it to be so – Where discharging the current Independent Children’s Lawyer would cause further delay and additional cost – Application dismissed.

Family Law Act 1975 (Cth) Pt VII

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

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

DATE DELIVERED:

8 July 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

8 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Ms J Olsen, as agent for McIntosh McPhillamy & Co Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wooi

Orders

BY CONSENT, IT IS ORDERED THAT

The following two applications are dismissed, with no order as to costs:
a.The Application in a Case filed on 5 December 2018 (variously referred to as being filed on 11 December 2018); and
b.The Response to an Application in a Case filed on 11 March 2019.

IT IS FURTHER ORDERED THAT

The applicant father’s oral application for the discharge of the current Independent Children’s Lawyer is dismissed.
Any and all other outstanding interim applications are dismissed.
The proceedings are adjourned to 9:30 am on Friday, 9 August 2019, for further procedural directions.
The respondent wife’s application for costs of and incidental to Order 2 hereof is adjourned to 9:30 am on Friday, 9 August 2019.
The applicant father shall file and serve any Financial Statement upon which he wishes to rely in relation to the costs dispute by Friday, 26 July 2019.

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 Jardine & Sackville 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 NEWCASTLE

FILE NUMBER: NCC 1949 of 2018

Mr Jardine

Applicant

And

Ms Sackville

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

The current proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) are brought by the father against the mother…

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 JARDINE & SACKVILLE

Details

AGLC: JARDINE & SACKVILLE [2019] FamCA 458
Case: [2019] FamCA 458
Decision Date: 8 July 2019

CaseChat Overview and Summary

In the matter of *Jardine & Sackville*, Austin J of the Family Court of Australia considered an oral application by the father for the discharge of the Independent Children’s Lawyer (ICL). The father contended that the current ICL lacked impartiality.

The central legal issue before the court was whether the father had established sufficient grounds to warrant the discharge of the ICL. The court was required to determine if the father's belief of bias was sufficient to discharge the ICL, and to consider the practical implications of such a discharge, including potential delays and increased costs.

Austin J reasoned that the mere assertion of bias by a party is insufficient to establish that an ICL lacks impartiality. The court noted that discharging the current ICL would inevitably lead to further delay and incur additional costs, which would not be in the best interests of the children. Consequently, the father's oral application for the discharge of the ICL was dismissed.

The court ordered the dismissal of the father's oral application for the discharge of the ICL, with no order as to costs. Several other applications were also dismissed, and the proceedings were adjourned for further procedural directions and a hearing concerning costs.

Orders

Orders of the court

BY CONSENT, IT IS ORDERED THAT

The following two applications are dismissed, with no order as to costs:

a. The Application in a Case filed on 5 December 2018 (variously referred to as being filed on 11 December 2018); and

b. The Response to an Application in a Case filed on 11 March 2019.

IT IS FURTHER ORDERED THAT

The applicant father’s oral application for the discharge of the current Independent Children’s Lawyer is dismissed.

Any and all other outstanding interim applications are dismissed.

The proceedings are adjourned to 9:30 am on Friday, 9 August 2019, for further procedural directions.

The respondent wife’s application for costs of and incidental to Order 2 hereof is adjourned to 9:30 am on Friday, 9 August 2019.

The applicant father shall file and serve any Financial Statement upon which he wishes to rely in relation to the costs dispute by Friday, 26 July 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.