PEDRANA & COX

[2015] FamCA 819

FAMILY COURT OF AUSTRALIA

PEDRANA & COX [2015] FamCA 819

FAMILY LAW – PRACTICE & PROCEDURE – appointment of single expert – appointment of Independent Children’s Lawyer.

Family Law Act 1975 (Cth) 68L

Family Law Rules 2004 r 15.66

APPLICANT: Mr Pedrana

RESPONDENT: Ms Cox

FILE NUMBER: BRC 7647 of 2007

DATE DELIVERED: 21 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Everingham Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Zwyzio, DA Family Lawyers and later Ms Stewart, Stewart Family Law

Orders

IT IS ORDERED BY CONSENT THAT

1. Orders 4, 5 and 6 of the Orders made by Registrar Coutts on 16 July 2015 be set aside.

2. Mr J be appointed pursuant to Rule 15.66 of the Family Court Rules 2004 (as amended) as a single expert witness to prepare a Family Report.

3. All remaining interim applications, other than the interim parenting applications listed before Principal Registrar for interim hearing at 10.00 am on 13 October 2015, are dismissed.

4. The costs of and incidental to today are reserved.

AND IT IS FURTHER ORDERED THAT

1. DA Family Lawyers, have leave to withdraw as solicitors on the record for the Respondent.

2. Pursuant to s 68L(2), the interests of the child C born … 2005 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child’s interests.

3. Forthwith upon appointment, the person arranged by Legal Aid Queensland to be the Independent Children’s Lawyer file a Notice of Address for Service.

4. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

5. Within seven (7) days of being notified of the details of the Independent Children’s Lawyer, each party provide to the Independent Children’s Lawyer copies of all documents relied upon by that party.

   By the Court

NOTATION:

A.It is requested that Legal Aid Queensland give consideration to allocating this matter to Ms Leisa Toomey, the person who has previously been appointed as the Independent Children’s Lawyer.

NOTATION:

B.This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending clause three (3) to record the correct interim applications referred to.

IT IS NOTED that the Order amended by the Court pursuant to Rule 17.02 of the Family Law Rules on 23 September 2015 has been inserted into these settled Reasons for Judgment

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Cox 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 BRISBANE

FILE NUMBER: BRC 7647 of 2007

Mr Pedrana

Applicant

And

Ms Cox

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have some reservations in acceding to the application for the appointment of an Independent Children's Lawyer at this time given that the parties are agreed to undertake a Family Report interview and preparation process with Mr J.  However, on balance, given the longstanding nature, in one sense, of the matter;  the documentation filed;  what is said to be its complexity in terms of, I suspect, interrelationships rather than issues themselves;  and what Mr Linklater-Steele has termed the overall management of the matter, I am persuaded that it is a matter on which it is appropriate that an order be made for the appointment of an Independent Children's Lawyer at this point in time.

2. I note also that the father will seek a change to the order made by consent last year such that instead of equal shared parental responsibility, he be afforded sole parental responsibility.  There is also the necessity for a change to the orders which deal with the school at which the child attends.  I note that the mother seeks time that is, it would seem, significantly different to that which was agreed between the parties:  and that, similarly, the father seeks to change the orders in a way that could not be thought insignificant, at least in, it seems, in relation to holiday time.  At this point in time, neither party is seeking to advance - in opposition to the other party’s recommencement of litigation - the argument that circumstances have not changed sufficiently so as to warrant the Court again looking at the matter.

3. That submission is not made on behalf of the father by Mr Linklater-Steel on his behalf nor by Ms Stewart – although I note, of course, that her involvement in the matter has been only as recent as this morning. 

4. In the absence of any submission to the effect that the Court should not entertain competing applications because there is not a sufficient change of circumstances, it seems that the litigation is likely to continue unless the parties are assisted, perhaps, with the presence of an Independent Children's Lawyer and the contents of the report prepared by Mr J to, again, ascertain a resolution to issues which it seems, again, have arisen between them.

5. I will include in the order in relation to the appointment of the Independent Children's Lawyer a notation to the effect that the Court requests that Legal Aid Queensland give consideration to allocating this matter to Ms Toomey, the person who had previously fulfilled the role as Independent Children's Lawyer in the matter  - of course, whether that is, in fact, put into effect is, of course, a matter for Legal Aid Queensland in its allocation of files: as is, without doubt, its decision as to whether to fund an Independent Children's Lawyer. 

6. As part of the consideration in relation to the appointment of an Independent Children's Lawyer at this point in time in this case, in these circumstances, I also note the submission made by Mr Linklater-Steele on behalf of the father that he is in a position to contribute towards the cost of and/or to fund the Independent Children's Lawyer in this proceeding again. 

7. I will also make an order by consent by way of interim order in terms of the handwritten document provided by Counsel and signed by each of the parties. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 September 2015.

Associate:                 

Date:    1 October 2015