FAMILY LAW – CHILDREN – SEPARATE REPRESENTATION – INDEPENDENT CHILDRENS LAWYER – Application for removal – Alleged partiality – Relevant considerations – Proper role of Independent Children’s Lawyer – “Views” held by Independent Children’s Lawyers about evidence – Role as “honest broker”
C and C (1995) 20 FamLR 24 Goode and Goode (2006) 36 FamLR 422 In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191 In the Marriage of Harris [1977] FLC 90-276 Lloyd & Lloyd & the Child Representative [2000] FLC 93-045 Pagliarella (1993) 16 FamLR 688 Wotherspoon & Cooper (1980) 7 FamLR 71; [1981] FLC 91-029
APPLICANT:
Ms Knibbs
RESPONDENT:
Mr Knibbs
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER:
BRC
2169
of
2009
DATE DELIVERED:
7 September 2009
PLACE DELIVERED:
Sydney
PLACE HEARD:
Brisbane
JUDGMENT OF:
Murphy J
HEARING DATE:
13th August 2009
REPRESENTATION
SOLICITOR FOR THE APPLICANT:
Mr Treherne Mark Treherne & Associates
SOLICITOR FOR THE RESPONDENT:
Mr Kelly
McMillan Kelly & Thomas
COUNSEL FOR THE INDEPENDENT
CHILDREN'S LAWYER:
Ms K McMillan SC
INDEPENDENT CHILDREN'S LAWYER
Legal Aid Office Queensland
Orders
IT IS ORDERED THAT
The Application in a Case filed by the Mother on 11 August, 2009 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Knibbs and Knibbs is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT BRISBANE
FILE NUMBER: BRC 2169 of 2009
MS KNIBBS
Applicant
And
MR KNIBBS
Respondent
REASONS FOR JUDGMENT
Proceedings for parenting orders between the parents of two children aged about 6½ and 10½ have, at their centre, allegations of sexual abuse. The trial of those proceedings is due to be heard before O’Reilly J commencing 14 October 2009.
By an application filed on 11 August 2009 (which, given the imminence of the trial, was listed urgently) the mother sought orders that:-
“ 1.[The current solicitor] be discharged as Independent Children’s Lawyer.
2. For another Independent Children’s Lawyer be appointed to represent the children.”
The application is supported by an affidavit by the mother and by an affidavit of a solicitor (Ms Ogge), who is employed by the mother’s solicitors and who deposes to having “primary care and conduct of this matter”.
The application is opposed by the ICL and, in that respect, she is supported by the father who filed no material in respect of this application. The ICL filed no affidavit herself, but relied upon a number of documents including the transcript of proceedings before me on 17 July, 2009, an affidavit of Dr H (paediatrician) and a family report prepared by a family consultant, Mr P.
In her affidavit, the mother deposes to the younger child (born in February 2003) “complaining about particular incidents of child abuse since 2006”. At that time the child was about 3.
Insofar as the matters there deposed to are relevant to the instant application, the…
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.
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Details
AGLC
Knibbs & Knibbs [2009] FamCA 840
Case
[2009] FamCA 840
Decision Date
CaseChat Overview and Summary
In *Knibbs & Knibbs*, Murphy J of the Family Court of Australia considered an application filed by the Mother on 11 August 2009. The specific nature of the dispute between the parties, the Mother and the Father, is not detailed in the provided text, beyond the fact that it led to the Mother's application.
The central legal issue before the court was whether the Mother's application, filed on 11 August 2009, should be dismissed. The court was required to determine the merits of this application and decide on its ultimate disposition.
Murphy J ultimately ordered that the Mother's application be dismissed. No further reasoning or legal principles applied are discernible from the limited text provided.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The Application in a Case filed by the Mother on 11 August, 2009 be dismissed.