Oscar and Delware; Oscar and Austen (No 2) - [2013] FamCAFC 197

FAMILY COURT OF AUSTRALIA

OSCAR & DELWARE; OSCAR & AUSTEN (NO 2)

[2013] FamCAFC 197

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant applied to join the former Independent Children’s Lawyer (ICL) as a respondent to the appeals for the purpose of serving a notice to admit facts – Where the appellant claimed the ICL who was appointed for the duration of the trial proceedings gave the appellant legal advice on a “related matter” at a community legal centre in 2009, and was therefore in possession of information which could have been used in a way to prejudice the appellant at the trial – Where the former ICL appeared at the hearing of the application and explained the contact she had with the appellant – Where it would be otherwise improper to join the former ICL as a respondent – Where the parties agreed the matter could be resolved by dismissing the appellant’s application upon the filing of an affidavit from the former ICL.

Family Law Rules 2004 (Cth)

APPELLANT IN NA 36 & 37 OF 2012:

Mr Oscar

RESPONDENT IN NA 36 OF 2012:

Ms Delware

RESPONDENT IN NA 37 OF 2012:

Ms Austen

INDEPENDENT CHILDREN’S LAWYER IN NA 36 & 37 OF 2012:

Ms Bint

FILE NUMBERS:	BRC	4067	of	2009
BRC	4069	of	2009

APPEAL NUMBERS:	NA	36	of	2012
NA	37	of	2012

DATE DELIVERED:

19 November 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

19 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2012

LOWER COURT MNC:

[2012] FamCA 220
[2012] FamCA 211

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Barataraj

SOLICITOR FOR RESPONDENT NA 36/2012:	Mr Waterhouse (by phone)
RESPONDENT NA 37/2012:	Ms Austen in person (by phone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER NA 36 & 37/2012:

CM Bint Family Lawyers

ORDERS:

Upon the Independent Children’s Lawyer filing an affidavit of Ms Hodges within seven (7) days of today’s date the application of the appellant filed 21 October 2013 be dismissed.

IT IS FURTHER ORDERED:

Order 7 of the orders made on 11 October 2013 be varied permitting the appellant to file and serve an amended summary of argument by 4.00pm on 2 December 2013.
Order 8 of the orders made on 11 October 2013 be varied permitting the respondent (Ms Delware) to file and serve a summary of argument by 4.00pm on 16 December 2013.

Order 8 of the orders made on 11 October 2013 be varied permitting the respondent (Ms Austen) to file and serve a summary of argument by 4.00pm on 16 January 2014.

Order 9 of the orders made on 11 October 2013 be varied permitting the Independent Children’s Lawyer to file and serve a summary of argument by 4.00pm on 20 December 2013.

Costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oscar & Delware; Oscar & Austen (No. 2) has been approved by…

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 Oscar and Delware; Oscar and Austen (No 2)

Details

AGLC: Oscar and Delware; Oscar and Austen (No 2) [2013] FamCAFC 197
Case: [2013] FamCAFC 197
Decision Date

CaseChat Overview and Summary

Mr Oscar, the appellant, filed an application in the Family Court of Australia seeking to add a solicitor, Ms Kathryn Hodges, as a fourth respondent to his ongoing appeals (NA 36 and NA 37 of 2012). The appeals involve Ms Delware and Ms Austen, respectively. The underlying issue in the appeals is a complaint that the Independent Children's Lawyer (ICL) provided the appellant with legal advice on a related matter, potentially creating a conflict of interest and compromising the integrity of the trial. The appellant claimed that the ICL, who was appointed for the duration of the trial proceedings, gave him legal advice in 2009 at a community legal centre, and he believed she possessed information that could have prejudiced him during the trial.

The court had to decide whether it was appropriate to join the former ICL as a respondent to the appeals and, if not, how to resolve the matter without disrupting the appeal process. The court considered the role and responsibilities of the ICL, as well as the provisions of rule 22.04 of the Family Law Rules 2004, which demonstrate that the ICL is not a person directly affected by the Court's orders and is unlikely to be interested in maintaining the order. The court also noted that the real concern was to have evidence from the former ICL regarding her contact with the appellant. The former ICL, Ms Hodges, appeared at the hearing of the application and explained the contact she had with the appellant. Both parties agreed that the matter could be resolved by dismissing the appellant's application upon the filing of an affidavit from the former ICL.

The court ruled that it was otherwise improper to join the former ICL as a respondent to the appeals. The court ordered that the current ICL, Ms Bint, file within seven days an affidavit from Ms Hodges, setting out her recollections of any contact with the appellant. Upon the filing of the affidavit, the court would dismiss the appellant's application. The court also made amendments to the timetable for the appeals, granting extensions for the filing of summaries of argument for the parties involved. Costs were reserved.

Orders