Kennedy & Peyton - [2022] FedCFamC2F 366

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kennedy & Peyton [2022] FedCFamC2F 366

File number(s): ADC 4269 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 28 March 2022

Catchwords: FAMILY LAW – interim hearing – application for the discharge of the Independent Children’s Lawyer – where it is alleged that the Independent Children’s Lawyer is biased, or perceived to be bias – consideration of the statutory duty of an Independent Children’s Lawyer – consideration of the grounds to warrant the removal of an Independent Children’s Lawyer – considerations of whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer is biased or impartial – where the parties positions are polarised and proceedings are bitterly contested – previous departmental involvement and removal of a child not subject to the proceedings – where father was previously charged with criminal neglect – where the issues relating to the other child who is not subject to these proceedings are germane – best interests of the child – assessment of risk – considerations of public policy – matters to be considered.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 64B, 68L, 68LA 69ZW, 91B

Cases cited:
Kennedy & Peyton [2020] FCCA 3268

Dickens & Dickens [2016] FamCA 115

Horner & Horner [2018] FamCA 487

Kingley & Arndale (No 2) [2010] FamCA 968

Knibbs & Knibbs [2009] FamCA 840

Leroux & Leroux & Ors (Independent Children’s Lawyer) [2015] FamCA 1128

Lloyd & Lloyd & the Child Representative (2000) FLC 93-045.

Re K (1994) 17 Fam LR 537.

T & L (2000) 27 Fam LR 40.

Division: Division 2 Family Law

Number of paragraphs: 159

Date of hearing: 18 March 2022

Place: Adelaide

Counsel for the Applicant: Ms Horvat

Solicitor for the Applicant: Degaris Lawyers

Counsel for the First Respondent: Mr Bowler

Solicitor for the First Respondent: Jordan & Fowler Lawyers

Counsel for the Second Respondent: Ms Tinning

Solicitor for the Respondents: Adelta Legal

Counsel for the Independent Children's Lawyer: Ms Lindsay

Solicitor for the Independent Children's Lawyer: Ms Z
ORDERS

ADC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KENNEDY

Applicant

AND:
MR PEYTON

First Respondent

MS C PEYTON AND MR B PEYTON

Second Respondents

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

28 MARCH 2022

THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 16 February 2022 be dismissed.
2.The costs of the Independent Children’s Lawyer are reserved.
3.The Application in a Case filed 18 June 2021 be listed for interim argument on 12 April 2022 at 10:00 am regarding the arrangements for the children, X and Y, to spend time with the father, and what conditions should attach to such time.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family…

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 Kennedy & Peyton

Details

AGLC: Kennedy & Peyton [2022] FedCFamC2F 366
Case: [2022] FedCFamC2F 366
Decision Date

CaseChat Overview and Summary

This case concerns an application to remove a court-appointed Independent Children's Lawyer in highly complex and bitterly contested parenting proceedings. The father and the paternal grandparents seek the removal of the Independent Children's Lawyer, Ms Z, asserting that she is biased and not impartial. They claim that Ms Z has an unprofessional relationship with the Department of Child Protection and has an inappropriate relationship with a psychiatrist, who is her sister, and who prepared a report in respect of the father, prior to Ms Z's appointment. The father and paternal grandparents are concerned that Ms Z is not acting impartially and is biased in favour of the mother. The court dismissed the application for removal of the Independent Children's Lawyer, finding that the father and paternal grandparents had not provided evidence to support their claims of bias and impartiality. The court found that Ms Z had discharged her role appropriately and independently, in the best interests of the children. The court will hear the outstanding interim applications regarding the arrangements for the children to spend time with their father on 12 April 2022 at 10:00 am.

Orders