FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHU & CHAN (No.2) | [2015] FCCA 292 |
| Catchwords: 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…
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- AGLC
- PHU & CHAN (No.2) [2015] FCCA 292
- Case
- [2015] FCCA 292
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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.
3.
The parties are to attend upon all such interviews as may be required by the Court Expert for the preparation of her Report.
4.
The parties are to attend an interim hearing on parenting issues on a date to be fixed.
5.
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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