PHU & CHAN (No.2) - [2015] FCCA 292

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHU & CHAN (No.2)

[2015] FCCA 292

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application in a Case – application by mother to remove Independent Children’s Lawyer – application to remove Family Consultant – application for sanction against father’s solicitor – where mother obtained a further psychologist’s report about the child without leave of the Court – where Limited Issues Report provided to psychologist without leave of the Court – appointment of child and family psychiatrist as Court expert to inquire into and report on matters relating to the care, welfare and development of the child.

FAMILY LAW – Children – application to discharge Independent Children’s Lawyer – Court should be slow to discharge an Independent Children’s Lawyer.

PRACTICE AND PROCEDURE – Whether Court should deliver a formal warning to a legal practitioner.

PRACTICE AND PROCEDURE – Transfer – where final hearing estimated to require at least a week of hearing time – whether proceedings should be transferred to the Family Court.

Legislation:

Family Law Act 1975 (Cth), s.68L

Federal Circuit Court Rules 2001, r.15.09

Cases cited:
Chan & Chan & Anor [2015] FCCA 265
Lloyd & Lloyd & Child Representative (2000) FLC 93-045 – followed
Phu & Chan [2015] FCCA 275
Wade & McPherson (No.2) [2014] FCCA 2490
Zandas & Zandas [2014] FCCA 1184

Applicant:

MS PHU

Respondent:

MR CHAN

File Number:

SYC 1714 of 2010

Judgment of:

Judge Scarlett

Hearing date:

4 February 2015

Date of Last Submission:

4 February 2015

Delivered at:

Sydney

Delivered on:

12 February 2015

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Mr Tiyce

Solicitors for the Respondent:

Tiyce Lawyers

Counsel for the Independent Children's Lawyer:

Ms Cantrall

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

Dr C, Child and Family Psychiatrist, is appointed as Court Expert to inquire into and report on matters relating to the care, welfare and development of the child X born (omitted) 2001.
The parties are to pay to the Independent Children’s Lawyer the necessary fee required by Dr C for the preparation of her Report in equal shares within seven (7) days of being called upon to do so.
The parties are to attend upon all such interviews as may be required by the Court Expert for the preparation of her Report.
The parties are to attend an interim hearing on parenting issues on a date to be fixed.
All other applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Phu & Chan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1714 of 2010

MS PHU

Applicant

And

MR CHAN

Respondent

REASONS FOR JUDGMENT

Application

There are two Applications in a Case by the Mother seeking various orders. There is some overlapping of orders sought but the Applications are separate. The later Application apparently does not supersede the former.
The first of 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.

Continue reading PHU & CHAN (No.2)

Details

AGLC: PHU & CHAN (No.2) [2015] FCCA 292
Case: [2015] FCCA 292
Decision Date: 12 February 2015

CaseChat Overview and Summary

In the matter of PHU & CHAN (No.2), the mother sought various orders including the removal of the Independent Children’s Lawyer (ICL) and a Family Consultant, and sanctions against the father’s solicitor. These applications arose in circumstances where the mother had obtained a further psychologist’s report concerning the child without the court’s leave, and had provided a Limited Issues Report to that psychologist without leave. The court was also asked to consider the appointment of a child and family psychiatrist as a court expert.

The primary legal issues before Judge Scarlett were whether to discharge the ICL, whether to sanction the father's solicitor, and whether to appoint a court expert to inquire into the child's care, welfare, and development. The court also considered the general principle that it should be slow to discharge an ICL and whether a formal warning should be issued to a legal practitioner.

Judge Scarlett reasoned that the court should be hesitant to discharge an ICL, as their role is crucial in representing the child's best interests. The applications to discharge the ICL and the Family Consultant, along with the application for sanctions against the father's solicitor, were dismissed. However, the court appointed Dr C, a Child and Family Psychiatrist, as a Court Expert to inquire into and report on matters relating to the care, welfare, and development of the child. The parties were ordered to pay Dr C's fees in equal shares and to attend any required interviews. An interim hearing on parenting issues was also scheduled.

Orders

Orders of the court

UNTIL FURTHER ORDER

Dr C, Child and Family Psychiatrist, is appointed as Court Expert to inquire into and report on matters relating to the care, welfare and development of the child X born (omitted) 2001.

The parties are to pay to the Independent Children’s Lawyer the necessary fee required by Dr C for the preparation of her Report in equal shares within seven (7) days of being called upon to do so.

The parties are to attend upon all such interviews as may be required by the Court Expert for the preparation of her Report.

The parties are to attend an interim hearing on parenting issues on a date to be fixed.

All other applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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