Peters and Ortona (No 2) - [2015] FamCA 800

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (NO 2)

[2015] FamCA 800

FAMILY LAW – CONTEMPT – Mother’s application for contempt against the Independent Children’s Lawyer – where the mother alleges that the Independent Children’s Lawyer did not follow a direction of the trial judge – where the mother alleges that the Independent Children’s Lawyer’s failure to follow that direction denied the mother natural justice – where the mother’s application did not comply with the Rules – where the mother failed to file an affidavit in support –where the transcript demonstrates that no direction was made to the Independent Children’s Lawyer as alleged and that the Independent Children’s Lawyer gave no undertaking – no evidence to support the mother’s application – interim orders made that the mother’s application be dismissed

Family Law Act 1975 (Cth), s 112AP
Family Law Rules 2004 (Cth)

Friar & Friar [2011] FamCAFC 71

APPLICANT:

Ms Peters

RESPONDENT:

Independent Children’s Lawyer

FILE NUMBER:

MLC

8590

2012

DATE DELIVERED:

6 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Justice Macmillan

HEARING DATE:

6 May 2015

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Vohra

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

Orders

IT IS ORDERED THAT

The application for contempt filed 23 March 2015 against the Independent Children’s Lawyer is dismissed.
The question of costs in respect of same is reserved.
All extant applications are adjourned for telephone mention before Justice Macmillan at 9.30am on 28 May 2015.

AND IT IS NOTED THAT

The mother will telephone the Court on the number provided to her this day at 9.30am on the adjourned date

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona (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 MELBOURNE

FILE NUMBER: MLC8590/2012

Ms Peters

Applicant

And

Independent Children’s Lawyer

Respondent

REASONS FOR JUDGMENT

The application listed before me in the Judicial Duty List this day is the mother’s application that Caroline Smith who was, until final orders were made by Justice Thornton on 26 February 2015, the Independent Children’s Lawyer in this case, that she be dealt with contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).
It was counsel for the Independent Children’s Lawyer’s application that the mother’s application for contempt should be summarily dismissed. The mother’s application, which was filed on 23 March 2015, alleged as follows:
By verbal direction Caroline Smith, Independent Children’s Lawyer, was directed by Justice Thornton to inform the mother (namely the applicant in these proceedings, [Ms Peters]) the details of the case on the 30^th December 2014 and that the mother have the ability to re open and adduce further evidence regarding the Family Court case on foot.
Caroline Smith, flagrantly denied me of natural justice as she refused to comply with this direction.
It was submitted by counsel for the…

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

Case: [2015] FamCA 800
Decision Date: 6 May 2015

CaseChat Overview and Summary

In *Peters and Ortona (No 2)*, Justice Macmillan of the Family Court of Australia considered an application for contempt filed by the mother against the Independent Children’s Lawyer. The specific nature of the alleged contempt is not detailed in the provided text, but it arose within ongoing family law proceedings.

The primary legal issue before the Court was whether the Independent Children’s Lawyer had committed contempt of court. The Court was required to assess the conduct of the Independent Children’s Lawyer against the relevant legal standards for contempt.

Justice Macmillan dismissed the application for contempt. While the reasoning for this dismissal is not elaborated upon in the provided text, the outcome indicates that the Court found no basis for the contempt allegations. The question of costs associated with the contempt application was reserved, and all other outstanding applications were adjourned for a telephone mention. The mother was also directed to telephone the Court on the adjourned date.

Orders

Orders of the court

IT IS ORDERED THAT

The application for contempt filed 23 March 2015 against the Independent Children’s Lawyer is dismissed.

The question of costs in respect of same is reserved.

All extant applications are adjourned for telephone mention before Justice Macmillan at 9.30am on 28 May 2015.

AND IT IS NOTED THAT

The mother will telephone the Court on the number provided to her this day at 9.30am on the adjourned date

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.