Manson & Manson - [2021] FamCA 507

FAMILY COURT OF AUSTRALIA
Manson & Manson [2021] FamCA 507

File number(s): SYC 8276 of 2018

Judgment of: REES J

Date of judgment: 14 July 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the Independent Children's Lawyer.

Cases cited:
Johnson v Johnson (2000) 201 CLR 488

Knibbs & Knibbs [2009] FamCA 840

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

Number of paragraphs: 66

Date of hearing: 13 July 2021

Place: Sydney

Applicant: Self-represented

Respondent: Excused from attendance

Solicitor for the Independent Children's Lawyer: Mr Blumberg
ORDERS

SYC 8276 of 2018

BETWEEN:
MS MANSON

Applicant

AND:
MR MANSON
Respondent

BLUMBERG FAMILY LAWYERS

Independent Children’s Lawyer

ORDER MADE BY:

REES J

DATE OF ORDER:

14 JULY 2021

THE COURT ORDERS:
1.That Order 6 made 25 May 2020 for the appointment of an Independent Children’s Lawyer for the child X born … 2010 be discharged.
2.The Registrar is requested to forward a copy of these orders and reasons to the Legal Aid Commission of NSW, Director of Family Law.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manson & Manson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:

Mr Manson (“the father”) and Ms Manson (“the mother”) are engaged, relevantly, in parent proceedings in relation to their son, X, who is 11 years old.
Directions have been made for the preparation of trial affidavits and the matter has been listed for call-over on 6 August 2021 for the purpose of allocating hearing dates.
A report has been prepared by a single expert child and family psychiatrist, Dr F, and released to the parties.
The issues for final determination are parental responsibility, with whom the child will live and what time, if any, the child will spend with the parent with whom he does not live. The parents do not agree on which high school he will attend and that determination will be dependent, in some part, upon with which parent he lives.
On the application of either parent, one possible outcome is that the child will live with one parent who will have sole parental responsibility for him and that he will spend little or no time with the other parent.
The briefest reading of the material which has been filed by the parents reveals that there is a high level of conflict between the parents.
By an Application in a Case filed 6 July 2021, the mother seeks the discharge of the Independent Children’s Lawyer (“ICL”). That application is opposed by the ICL.

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 Manson & Manson

Details

AGLC: Manson & Manson [2021] FamCA 507
Case: [2021] FamCA 507
Decision Date: 14 July 2021

CaseChat Overview and Summary

In *Manson & Manson*, Rees J of the Family Court of Australia considered an application to discharge the Independent Children's Lawyer (ICL) appointed for the child X. The applicant mother sought the discharge, raising concerns about the ICL's conduct in relation to the preparation of a joint tender bundle for an interim hearing.

The central legal issue before the Court was whether the ICL's actions, specifically their decision not to prepare a joint tender bundle of subpoenaed documents, constituted grounds for their discharge. The mother contended that the ICL had failed in their obligation to ensure relevant evidence was available to the Court and had not adequately communicated their intentions regarding the tender bundle.

Rees J found that the mother's criticisms of the ICL were not substantiated. The Court noted that the ICL's obligation was to ensure all relevant evidence was available, not necessarily to prepare a joint tender bundle if it was not practical or necessary. The ICL had explained their decision based on a review of the subpoenaed material not supporting their position, a lack of specific request from either party for inclusion in a joint bundle, resource limitations, and COVID-19 risks. The Court accepted these reasons as demonstrating that the ICL had acted reasonably in the circumstances, and that the mother's assertion that the ICL had documented they would prepare the bundle was not supported by the evidence.

Consequently, the Court ordered the discharge of the Independent Children's Lawyer appointed for the child X. The Registrar was requested to forward a copy of the orders and reasons to the Legal Aid Commission of NSW, Director of Family Law.

Orders

Orders of the court

SYC 8276 of 2018

BETWEEN:

MS MANSON

Applicant

AND:

MR MANSON

Respondent

BLUMBERG FAMILY LAWYERS

Independent Children’s Lawyer

ORDER MADE BY:

REES J

DATE OF ORDER:

14 JULY 2021

THE COURT ORDERS:

1. That Order 6 made 25 May 2020 for the appointment of an Independent Children’s Lawyer for the child X born … 2010 be discharged.

2. The Registrar is requested to forward a copy of these orders and reasons to the Legal Aid Commission of NSW, Director of Family Law.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

I do not accept this criticism of the ICL to be substantiated.The ICL has not presented or provided any evidence to the Court The obligation of the ICL is to ensure that all relevant evidence is available for the Court at the hearing of the matter. The matters upon which the mother relies are set out at paragraphs 18 to 21 of her affidavit and at annexure 5. Her complaint relates to events surrounding an interim hearing before the Senior Registrar on 25 August 2020. On 6 July 2020, in preparation for an interim hearing on 11 August 2020, a registrar made orders in accordance with the protocol then adopted by the Court for the inspection of documents produced on subpoena; the copying of the documents to prepare an electronic tender bundle and the preparation of the tender bundle. Because the mother is self-represented, she was not permitted to have copy access to medical records which, she asserts, supported her case that the child has witnessed violence towards the mother by the father. The matter did not proceed on 11 August 2020 and was adjourned to 25 August 2020. On 12 August 2020, the ICL wrote to the Senior Registrar, with a copy to the mother, asking for permission “to photocopy the Subpoena material for the purposes of preparing a joint tender bundle in preparation for 25 August 2020”. On the morning of 25 August 2020, the mother sent an email to the ICL asking if the joint tender bundle had been prepared. The ICL replied to the mother:We only received leave to copy the documents on Thursday after our request immediately after the last court event.We received a call yesterday mid-morning from the subpoena room in response to our request for an appointment to copy the documents.Given:1. our review of our notes from our subpoena viewing did not indicate that any material supported our position2. we had not received a request from either party for material to be included in a joint tender bundle 3. our resource limitations4. the covid risks given the city is a designated hotspotwe decided that it was not practical or necessary to attend the Court in the city to prepare a tender bundle.Please note that a joint tender bundle is not a copy of all the subpoena material. It is a collection of a limited number of specific documents that one or more of the parties intends to rely on. (Emphasis added) The mother replied:I am very disappointed to hear that you did not prepare the bundle as you documented you would.You are aware that I raised subpoenaed material in my submission and at the court mention on 11 August 2020, and that [the Senior Registrar] stated the ICL is the only person who can copy and provide this material. You are also aware that I am self-represented and was not aware that I had to specifically advise you of the material to photocopy in the situation where you had already copied me into your request to the court to copy the material.I believe you should have communicated to both parties of your intention to not prepare this bundle.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 8276 of 2018
Judgment of:	REES J
Date of judgment:	14 July 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the Independent Children's Lawyer.
Cases cited:	Johnson v Johnson (2000) 201 CLR 488 Knibbs & Knibbs [2009] FamCA 840 Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
Number of paragraphs:	66
Date of hearing:	13 July 2021
Place:	Sydney
Applicant:	Self-represented
Respondent:	Excused from attendance
Solicitor for the Independent Children's Lawyer:	Mr Blumberg

SYC 8276 of 2018
BETWEEN:	MS MANSON Applicant
AND:	MR MANSON Respondent
BLUMBERG FAMILY LAWYERS Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	14 JULY 2021