McCormick and Graft (No 2)

[2015] FamCA 1044

FAMILY COURT OF AUSTRALIA

MCCORMICK & GRAFT (NO 2) [2015] FamCA 1044

FAMILY LAW – PROCEDURAL – CASE APPLICATION – application be dismissed – where the mother sought to have the judge recuse himself – where the mother sought the removal of the Independent Children’s Lawyer – where the mother sought a stay of proceedings – discussion of the principles of stay applications – discussion of the circumstances for recusal.

Family Law Act 1975 (Cth)

Re K Appeal (1994) FLC 92-461
Helbig & Rowe (No 2) [2012] FamCAFC 175
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr McCormick

RESPONDENT: Ms Graft

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 301 of 2009

DATE DELIVERED: 26 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 9 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITORS FOR THE APPLICANT: Preston Law

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms McArdle

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Cope Family Law

Orders

1. The mother’s Application in a Case filed 9 September 2015 is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCormick & Graft (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC301/2009

Mr McCormick

Applicant

And

Ms Graft

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. By Application in a Case filed 9 September 2015, Ms Graft (“the mother”) sought the following orders:

   1.That all orders and proceedings in the Family Law Courts be stayed.

   2.That this matter be removed from the Cairns Registry and Justice Tree.

   3.The children be removed from the father’s care.

   4.Ms D and the Independent Children's Lawyer be prevented from further contact or proceedings with the two children in these proceedings.

2. The application came on for hearing before me on the first day of trial.  I dismissed the application and reserved my reasons.  These are those reasons.

BACKGROUND INFORMATION

1. The principal proceedings concern the parties’ two children, G (aged 10), and H (aged 9) (“the children”).  They have a long and complex history.  It is unnecessary to recite all of it for the purposes of an understanding of the background to the mother’s application, but suffice to say that whilst proceedings before Federal Magistrate Willis (as her Honour then was) were part heard, the parties were able to reach final consent orders, which were pronounced by her Honour on 27 February 2012.  Those orders saw the parties have equal shared parental responsibility for the children, and for them to live week about between the parties.  There was also an order that the parties have equal time with the children during school holidays.

2. Those orders ceased to become practically operative, at least as regards living arrangements, when the mother unilaterally moved from the E Town to the F Town region, in consequence of which the week about arrangement became untenable, not least of because the…