Johnson and Charles (No 2) - [2017] FamCA 973

FAMILY COURT OF AUSTRALIA

JOHNSON & CHARLES (NO. 2)

[2017] FamCA 973

FAMILY LAW – CHILDREN – Independent Children's Lawyer – Application to discharge the Independent Children's Lawyer refused

Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

APPLICANT:

Mr Johnson

RESPONDENT:

Ms Charles

INDEPENDENT CHILDREN’S LAWYER:

Ms M Clark

FILE NUMBER:

MLC

10228

2012

DATE DELIVERED:

27 November 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Gill J

HEARING DATE:

27 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self representing

SOLICITOR FOR THE RESPONDENT:

Self representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Clark Family Lawyers

Orders

The application of Mr Johnson to discharge the Independent Children's Lawyer is refused and the application is dismissed.

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 Johnson & Charles 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 MELBOURNE

FILE NUMBER: MLC 10228 of 2012

Mr Johnson

Applicant

And

Ms Charles

Respondent

REASONS FOR JUDGMENT

An application to remove the Independent Children's Lawyer has been filed or attempted to be filed on the Friday before the listing of the matter for trial. That particular filing occurs at the end of the week at which the trial was initially listed but unable to be reached by the Family Court. The attempt to file the application was unsuccessful and permission was granted to file the affidavit that was relied upon in Court this morning.
The application to have the Independent Children's Lawyer removed on the part of the father is constructed upon a number of factors asserted by the father. The key amongst those is his assertion that the conduct of the Independent Children's Lawyer should lead to an inference being drawn of clear bias on the part of the Independent Children's Lawyer. Connected to this bias, as set out in the affidavit relied upon by the father, are questions of the performance of the Independent Children's Lawyer in her duties in the preparation of the case.
The following matters were identified by him. Firstly, he says that the Independent Children's Lawyer has failed to build rapport with B (the child) and has failed to provide an updated version of the child’s views in relation to who it is that she would like to live with and as to the impact upon the child if those views were not adhered to by this Court. He says that there has been a demonstration of impartiality in that the Independent Children's Lawyer has…

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 Johnson and Charles (No 2)

Details

AGLC: Johnson and Charles (No 2) [2017] FamCA 973
Case: [2017] FamCA 973
Decision Date: 27 November 2017

CaseChat Overview and Summary

In the matter of *Johnson and Charles (No 2)*, Gill J of the Family Court of Australia considered an application by Mr Johnson to discharge the Independent Children's Lawyer (ICL). The dispute concerned the ongoing representation of the children by the ICL in proceedings between Mr Johnson and Ms Charles.

The central legal issue before the Court was whether the continued appointment of the ICL was in the best interests of the children, and if the grounds presented by Mr Johnson warranted the discharge of the ICL. The Court was required to assess the ICL's role and conduct in light of the specific circumstances of the case and the relevant legislative provisions governing the appointment and functions of an ICL.

Gill J refused Mr Johnson's application to discharge the ICL. The reasoning applied by the Court, though not detailed in the provided text, would have involved a careful consideration of the ICL's duties to the children, the evidence presented by Mr Johnson, and the overarching principle of the children's best interests as paramount in family law proceedings. The Court ultimately determined that the ICL's continued involvement was appropriate.

Consequently, the application by Mr Johnson to discharge the Independent Children's Lawyer was dismissed.

Orders

Orders of the court

The application of Mr Johnson to discharge the Independent Children's Lawyer is refused and the application is dismissed.

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

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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