FAMILY LAW – Discharge/recusal of Independent Children’s Lawyer – alleged apprehended bias – application of Guidelines for Independent Children’s Lawyer and s 68LA of the Family Law Act – grounds for recusal of Independent Children’s Lawyer are not made out – apprehended bias not established – Application dismissed – procedural Orders made regarding costs in the light of existing costs Applications to be heard at final hearing in May 2022.
Legislation:
Family Law Act1975 (Cth), ss.62G, 68LA, 102NA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Chapter 7 Evidence Act 1995 (Cth), s.79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MANUAL
Applicant
AND:
MS PINNER
Respondent
AND
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Father’s Application in a Case, filed 6th August 2021, be dismissed.
2.The costs of the Independent Children’s Lawyer and of the Mother be reserved and determined at the final hearing in May 2022.
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 Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section…
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
Manual & Pinner [2021] FedCFamC2F 468
Case
[2021] FedCFamC2F 468
Decision Date
CaseChat Overview and Summary
The Applicant Father sought to have the Independent Children's Lawyer ("ICL") removed from the matter. The Father's Application was dismissed. The Father's complaints related to a range of matters, including the appointment of an expert, the delay in meeting with X, the ICL's refusal to meet with the Father in his capacity as "a legal representative," and general delay in the ICL's communication and correspondence with the Father. The Father's actions regarding the appointment of an expert, in particular, were alarmingly ill-advised and potentially dangerous. No family law practitioner would nominate, and no Court would ever appoint, a person as an independent expert, unless satisfied that such person was both suitably qualified and relevantly experienced. The Father's actions coloured and necessarily dictated the responses of the ICL in relation to these matters. Failure to respond in a timely manner is not, however, without significantly more, an indication of bias against the Father. While some communication between the parties and the ICL, on one or other side, or all sides, could have been better, it does not rise to such strong action as to execute, so to speak, the appointment of the ICL. The Father's complaints set out in both of the Affidavits relied upon were insufficient to constitute any form of apprehended bias against the ICL. The Father's recusal/discharge Application was misconceived. Much of it arose out of varying degrees of ignorance which almost any lawyer would have, and should have, been able to resolve and save the mis-guided actions of the Father. The Mother sought an Order for costs. The Court proposed reserving the Mother's and the ICL's costs of the current Application and adding it to the other costs matters to be dealt with next May.