Letchford & Havel (No 2) - [2023] FedCFamC2F 684

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Letchford & Havel (No 2) [2023] FedCFamC2F 684

File number(s): ADC 2366 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 6 June 2023

Catchwords: FAMILY LAW – CHILDREN – interim proceedings –application for the discharge of the Independent Children’s Lawyer – where the mother filed an affidavit without leave – where such affidavit was considered by 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 – consideration of procedure – best interests of the child

Legislation: Family Law Act 1975 (Cth) ss 68LA, 117

Cases cited:
Bradshaw & Bradshaw [2022] FedCFamC1F 930

Dean & Susskind [2012] FamCA 897

Dickens & Dickens [2016] FamCA 115

Ebner vs Official Trustee in Bankruptcy (2000) 205 CLR 337

Horner & Horner [2018] FamCA 487

Johnson & Johnson (2000) 201 CLR 488

Kennedy & Peyton [2022] FedCFamC2F 366

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

Knibbs & Knibbs [2009] FamCA 840

Leroux & Leroux [2015] FamCA 1128

Lim & Zong (2021) FLC 94-048

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

Paco & Racina [2014] FamCAFC 195

Sawyer & Sawyer [2015] FamCA 982

T & L (2000) 27 Fam LR 40

Vale & Vale [2016] FamCA 307

Division: Division 2 Family Law

Number of paragraphs: 63

Date of hearing: 25 May 2023

Place: Adelaide

Counsel for the Applicant: Mr Dillon

Solicitor for the Applicant: ASW Lawyers

Counsel for the Respondent: Ms Hume

Solicitor for the Respondent: Clelands Lawyers Adelaide

Counsel for the Independent Children's Lawyer: Mr Boehm

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

ADC 2366 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LETCHFORD
Applicant

AND:
MR HAVEL
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE DICKSON

DATE OF ORDER:

6 JUNE 2023

THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 5 May 2023, the mother’s Response to an Application in a Proceeding 23 May 2023 and the Independent Children’s Lawyer’s Response to Application in a Proceeding tendered 25 May 2023 (the ‘said applications’) are hereby dismissed.
2.The father and the mother each bear their own costs of and incidental to the said applications.
3.Within twenty-eight (28) days of the date hereof, the father and the mother do each pay the sum of $952.50 plus GST to the assignments section of the Legal Services Commission of South Australia on account of costs incurred by the Independent Children’s Lawyer in relation to the said applications.

AND IT IS FURTHER ORDERED THAT:
4.The children, X born 2016 and Y born 2018 (‘the children’), do spend time with the father as follows:
(a)From 10:00am Saturday until 5:00pm Sunday…

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: Letchford & Havel (No 2) [2023] FedCFamC2F 684
Case: [2023] FedCFamC2F 684
Decision Date

CaseChat Overview and Summary

These proceedings involve an application brought by the respondent father to discharge Ms Nicola Atchison, the Independent Children's Lawyer, for two children. The application was opposed by the applicant mother and the Independent Children's Lawyer. The central issue was whether the Independent Children's Lawyer should be removed due to alleged bias. The court examined the legal principles surrounding the role and duties of an Independent Children's Lawyer, including their obligation to act impartially and independently. The court considered the concept of actual or apprehended bias and the circumstances that might justify the discharge of an Independent Children's Lawyer.

The court found that the father had not provided sufficient evidence to persuade the court that the Independent Children's Lawyer should be discharged. The court held that the Independent Children's Lawyer had not acted in any way inconsistent with her professional and statutory obligations for the children. The court emphasised the importance of being cautious in discharging an Independent Children's Lawyer in the absence of a compelling reason for doing so. The court dismissed the father's application for the recusal of Ms Atchison as the Independent Children's Lawyer.

Each party and the Independent Children's Lawyer sought costs dependent on the orders of the court. The court ordered that the father and mother bear their own costs, and each party contribute one half of the Independent Children's Lawyer's costs.

Orders