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Lancet & Lancet

Case [2008] FMCAfam 525 14 May 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANCET & LANCET

[2008] FMCAfam 525

FAMILY LAW – Children’s issues – order for appointment of Independent Children’s Lawyer – appropriate orders when legal aid decline to provide funding – the court has no power to require legal aid to fund an Independent Children’s Lawyer – the parties, not the court, should pursue funding reviews with legal aid.

PRACTICE & PROCEDURE – Stay of proceedings – power to stay family law proceedings – whether proceeding should be stayed – orders for separate representation of a child the subject of proceedings – Legal Aid not providing funding for Independent Children’s Lawyer – not appropriate to consider stay until review processes at legal aid exhausted.

Family Law Act1975, ss.60B, 68L, 68LA, and 69ZN
Legal Aid Act 1978 (Vic.), s.34

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
JJT; Ex parte Victoria Legal Aid, Re [1998] HCA 44; (1998) 195 CLR 184
K, Re1994] FamCA 21, (1994) FLC ¶92-461
Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378

Applicant:

MS LANCET

Respondent:

MR LANCET

File number:

MLC 1286 of 2007

Judgment of:

Riethmuller FM

Hearing date:

14 May 2008

Date of last submission:

14 May 2008

Delivered at:

Ballarat

Delivered on:

14 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr R.D. Curtain

Solicitor for the Applicant:

Vicki Sweet Family Law

Counsel for the Respondent:

Ms J.L. Stewart

Solicitor for the Respondent:

BJT Legal

ORDERS

That the parties each resubmit the order of Magistrate Robinson for the appointment of an Independent Children’s Lawyer to Victoria Legal Aid together with an appropriate application for aid, and pursue such processes as are reasonably available to obtain a grant of aid for an Independent Children’s Lawyer until:
(a)an Independent Children’s Lawyer is appointed;
(b)the Victoria Legal Aid review processes are exhausted; or
(c)the parties are able to fund an Independent Children’s Lawyer of their own choice; or
(d)further orders are made.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BALLARAT

MLC 1286 of 2008

MS LANCET

Applicant

And

MR LANCET

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This case concerns the care arrangements for three young children, A, born in 1998, B, born in 2000 and C born in 2002.
For many months leading up to these proceedings, the father had been actively participating in the children’s lives, caring for them, taking them to sporting events, and on his case had a close and loving bond with them. There were consent orders for the children to spend

5 nights a fortnight with the father made in May 2007 by consent.
Most recently, on 20 April 2008 at around 1.00 am, the wife says that the husband broke into her home through the living room window, armed with an axe. She was protected by neighbours, although the husband broke…

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 Lancet & Lancet

Details

AGLC: Lancet & Lancet [2008] FMCAfam 525
Case: [2008] FMCAfam 525
Decision Date: 14 May 2008

CaseChat Overview and Summary

In the matter of Lancet & Lancet, the parties were involved in a dispute over the welfare of their children. The case was heard in the Family Court of Australia. The primary concern was the need for an Independent Children's Lawyer (ICL) to represent the interests of the children in proceedings that involved complex issues regarding their care and protection.

The court had to decide whether the parties were capable of funding an ICL themselves or whether they should rely on the availability of legal aid to secure representation for the children. The matter hinged on the urgency of the need for an ICL and the potential delays that might be encountered if the parties had to navigate the legal aid system. The court also had to consider the implications of any delay on the children's welfare and the broader objectives of the Family Law Act 1975.

The court concluded that both parties should first attempt to fund an ICL independently, and if unsuccessful, proceed to seek legal aid. The court emphasised the importance of the children's interests being represented promptly and effectively. It directed the parties to resubmit their application for legal aid to Victoria Legal Aid and pursue all reasonable avenues to secure an ICL, whether through legal aid or independent funding, until an ICL was appointed or the legal aid review processes were exhausted. The court's decision underscored the necessity of timely representation for the children in family law matters.

Orders

Orders of the court

That the parties each resubmit the order of Magistrate Robinson for the appointment of an Independent Children’s Lawyer to Victoria Legal Aid together with an appropriate application for aid, and pursue such processes as are reasonably available to obtain a grant of aid for an Independent Children’s Lawyer until:

(a) an Independent Children’s Lawyer is appointed;

(b) the Victoria Legal Aid review processes are exhausted; or

(d) further orders are made.

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.

Citations

AGLC Citation

Lancet & Lancet [2008] FMCAfam 525

Most Recent Citation

Turner v State of Victoria (Dept. of Human Services) [2010] FMCA 920

Cases citing this decision · 3 of 3 shown

Seers v Australian Postal Corporation
[2014] FCCA 377 Para 2

…In Lancet & Lancet [2008] FMCAfam 525 Federal Magistrate Riethmuller (as His Honour then was) stated: “In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 , Gleeson CJ, Gummow, Hayne and Crennan JJ said: 6. …In Walton v Gardiner[15], the majority, Mason CJ, Deane and Dawson JJ, accepted as co…
OBERLE and OBERLE
[2012] FMCAfam 875 Para 3

…In Lancet & Lancet [2008] FMCAfam 525, Riethmuller FM set out the power to appoint and role of an Independent Childrens Lawyer at paragraphs 9-19: “Independent Children’s Lawyers 9. The power to appoint an independent children's lawyer is set out in s.68L of the Family Law Act. This section is engaged if the Court co…
Turner v State of Victoria (Dept. of Human Services)
[2010] FMCA 920 Para 24

…The following passages are extracted from Lancet & Lancet [2008] FMCAfam 525 per Federal Magistrate Reithmuller: “In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ said: 6. … In Walton v Gardiner[15], the majority, Mason CJ, Deane and Dawson JJ, acc…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 3

…In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ said: 6. … In Walton v Gardiner [15], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter [16] in which Lord Diplock spoke of "the inherent power which any cou…
Re JJT; Ex Parte Victoria Legal Aid
[1998] HCA 44 Para 2

…the use of the funds disbursed for that purpose: it is an administrative function, not a judicial function: see Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184.…
Walton v Gardiner
[1993] HCA 77 Para 2

…In Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ at [23] said: 24. In Jago v. District Court of New South Wales ((26) [1989] HCA 46; (1989) 168 CLR 23.) … Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties an…
Williams v Spautz
[1992] HCA 34 Para 2

…scussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v. Spautz ((34) [1992] HCA 34; (1992) 174 CLR 509, at pp 519-520.). When those comments are properly understood in context, however, there is nothing in them which supports the propositio…
Jago v District Court (NSW)
[1989] HCA 46 Para 2

…lton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ at [23] said: 24. In Jago v. District Court of New South Wales ((26) [1989] HCA 46; (1989) 168 CLR 23.) … Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties an…
[1992] HCA 12
[1992] HCA 12 Para 2

…In Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ at [23] said: 24. In Jago v. District Court of New South Wales ((26) [1989] HCA 46; (1989) 168 CLR 23.) … Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parti…
[1994] FAMCA 21
[1994] FAMCA 21 Para 10

…In Re K [1994] FamCA 21; (1994) FLC ¶92-461, the Full Court developed some guidelines for the appointment of an Independent Children’s Lawyer under the provisions as they were in 1994. Relevant to this case are the following extracts from the Full Court’s guidelines: (i) Cases involve allegations of child abuse, w…
(1980) 1 NZLR 464
(1980) 1 NZLR 464 Para 2

…His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v. Department of Labour ((29) (1980) 1 NZLR 464, at p 481.): “public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State…
Moevao v Department of Labour
(1980) 1 NZLR 481 Para 2

…In Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ at [23] said: 24. In Jago v. District Court of New South Wales ((26) [1989] HCA 46; (1989) 168 CLR 23.) … Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
60B, 68L, 68LA, 69ZN 5 mentions (from Para 5)
Legal Aid Act 1978 (Vic)
34 3 mentions (from Para 5)