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 the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 36 & 37 of 2012
File Number: BRC 4067 & 4069 of 2009
| Mr Oscar |
Appellant
And
| Ms Delware |
Respondent NA 36/2012
And
| Ms Austen |
Respondent NA 37/2012
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
An application was filed by Mr Oscar, the appellant, on 21 October 2013 asking that a solicitor, Ms Kathryn Hodges, be added as a fourth respondent in the appeal. There are two appeals to be heard together: NA 36 of 2012 which involves Ms Delware, and NA 37 of 2012 which involves Ms Austen. The reason for that is that the trial of the matter was heard with the two families, so to speak, together. A significant ground in each appeal is a complaint that the solicitor for the children, that is, the Independent Children’s Lawyer, had given Mr Oscar legal advice on what is described in the notice of appeal as a related matter, where he had confided relevant information with the solicitor about the matter, which he asserted could have been used in a way to prejudice him in the trial.
It is claimed that there was a conflict of interest and it should have been disclosed. The first and second grounds of appeal contain these allegations. It is said in the affidavit by Mr Oscar that Ms Hodges saw him on 11 March 2009 at a community legal service and gave him advice in relation to a domestic violence application filed by Ms Delware against him. It is said in the affidavit of Mr Oscar that he disclosed confidential information to Ms Hodges about – that might have affected the trial in this Court in relation to both of the mothers.
It is certainly clear that Ms Hodges was the Independent Children’s Lawyer in both matters, having been appointed on 21 September 2009 and throughout the proceedings in what was then the Federal Magistrates Court and then during the trial in this Court. She is no longer the Independent Children’s Lawyer but she appears before me in this application. The present Independent Children’s Lawyer is Ms Bint.
The purpose of having Ms Hodges joined as a party in the appeal, it was said, was to serve on her a notice to admit facts. This has really become entirely unnecessary because Ms Hodges has candidly told me that she will sign and file an affidavit setting out what she can remember of any contact that she had with Mr Oscar, including that when she saw him after being appointed the Independent Children’s Lawyer, she thought she recognised him and revealed this to him. She will say that Mr Oscar acknowledged that and said he was unconcerned. I intend to order that the Independent Children’s Lawyer Ms Bint file within seven days an affidavit from Ms Hodges. I will make an order that upon the filing of an affidavit from Ms Hodges in time, the father’s application be dismissed.
An order should not otherwise be made that Ms Hodges become a party to the proceedings. Reference to the provisions of rule 22.04 of the Family Law Rules 2004 demonstrates that it could not be said that Ms Hodges is a person directly affected by the orders of the Court, nor is she likely to be interested in maintaining that order. To order that she become a party to the proceedings would be a misapprehension of the role of the Independent Children’s Lawyer.
In any event, it is unnecessary for me to say more because, as was strongly indicated and helpfully explained by Mr Barataraj for Mr Oscar, the real concern was that this matter not get to the appeal hearing and there be evidence from Ms Hodges as to what her contact had been with Mr Oscar. It seems that that now is resolved, and any arguments to be placed before the appeal court in support of those grounds can quite properly be made.
It seems that there should be some alteration to the timetable. Ms Austen has also orally applied that she have an extension of time for filing her submissions for a range of practical reasons. Mr Barataraj explains that he would need a little more time to file the essential, in this case, amended summary of argument, so I intend to further amend the orders that I made on 11 October 2013.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 19 November 2013.
Associate:
Date: 5 December 2013
0
0
0