Rimmington and Healey - [2013] FamCAFC 38

FAMILY COURT OF AUSTRALIA

RIMMINGTON & HEALEY

[2013] FamCAFC 38

FAMILY LAW ─ APPEAL ─ Application in an appeal ─ Where the appellant sought that the Court make an order that the Independent Children’s Lawyer continue to represent the children in the appeal ─ Where on the material before the Court, to force the Independent Children’s Lawyer to continue to participate in the appeal would serve no useful purpose, and may aid and abet the appellant’s pursuit of a collateral and inappropriate purpose ─ Independent Children’s Lawyer excused from further participation in the appeal.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Rimmington

RESPONDENT:

Ms Healey

INDEPENDENT CHILDREN’S LAWYER:

Ms Maureen Power

FILE NUMBER:

SYC

1762

2009

APPEAL NUMBER:

137

2012

DATE DELIVERED:

21 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

DIRECTIONS HEARING DATE:

5 December 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 September 2012

LOWER COURT MNC:

[2012] FamCA 810

REPRESENTATION

THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Mr Longworth

SOLICITOR FOR THE RESPONDENT:

Dettmann Longworth Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Maureen Power

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid of NSW

Orders

(1)That the Independent Children’s Lawyer be excused from further participation in the appeal.
(2)That the appellant’s application filed 24 December 2012 otherwise be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington & Healey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 137 of 2012

File Number: SYC 1762 of 2009

Mr Rimmington

Appellant

And

Ms Healey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Pursuant to previous directions of the Court, on 24 December 2012, Mr Rimmington (“the appellant”) filed an application in the appeal seeking a number of orders, the most relevant for present purposes being an order:
2.That the Independent Children’s Law Ms Maureen Power continue to represent twin brothers [B] and [A] born [in] 2008 until further order of the Court.
The application purported to seek further relief, although, having regard to the terms in which that relief was sought, what was really sought, on what basis and pursuant to what power was less than clear. Other relief sought by the appellant appears based on a fundamental misconception as to the nature of the principles governing his appeal.
The alternative relief sought by the appellant, to the extent that it may conceivably fall within the power of the Court, is not relief which the Court would be likely to grant.
In support of his application, the appellant filed an affidavit. In the affidavit, in a form which is generally inadmissible, or, if despite its inadmissibility was received, could not safely be given any weight, the appellant made a number of assertions critical of the Independent Children’s Lawyer (“ICL”). Some of those submissions…

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 Rimmington and Healey

Details

AGLC: RIMMINGTON & HEALEY [2013] FamCAFC 38
Case: [2013] FamCAFC 38
Decision Date: 21 March 2013

CaseChat Overview and Summary

The matter before the court involved Rimmington and Healey, with a dispute regarding the role of the Independent Children's Lawyer (ICL) in the appeal. The ICL had been appointed to represent the interests of the children in the original proceedings, but the appellant sought that the ICL continue to represent the children in the appeal. The case was heard in the Family Court of Australia.

The legal issue before the court was whether the ICL should be required to continue to represent the children in the appeal, given that the original proceedings had concluded. The court needed to determine if compelling the ICL to participate in the appeal would serve any useful purpose, and whether it might aid and abet the appellant's pursuit of a collateral and inappropriate purpose. The court also needed to consider the potential impact of the ICL's continued participation on the children's interests.

The court found that the material before it did not support the continuation of the ICL's role in the appeal. The court was of the view that to force the ICL to participate in the appeal would serve no useful purpose, and may aid and abet the appellant's pursuit of a collateral and inappropriate purpose. The court was also concerned that the ICL's continued involvement may not be in the best interests of the children. Accordingly, the court dismissed the appellant's application and excused the ICL from further participation in the appeal. The court's decision was based on a careful consideration of the evidence and arguments presented, and a determination that the ICL's involvement was no longer necessary or appropriate.

Orders

Orders of the court

(1) That the Independent Children’s Lawyer be excused from further participation in the appeal.

(2) That the appellant’s application filed 24 December 2012 otherwise be 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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