Rimmington and Healey
[2013] FamCAFC 38
•21 March 2013
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 | of | 2009 |
| APPEAL NUMBER: | EA | 137 | of | 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 appear to be a paraphrase of matters which, if they were stated, would emerge from the transcript of the proceedings, and should be proved by the inclusion of the transcript in the appellant’s appeal book, and relied upon at the hearing of the appeal.
It is difficult to understand the significance sought to be attached to the matters which the appellant asserts were stated to him by the ICL outside the Court room. What does seem reasonably clear is that the appellant is dissatisfied with the manner in which he perceives that the ICL has conducted the proceedings at trial.
The affidavit of the appellant raises nothing which suggests that the ICL’s continued participation in the appeal would serve any useful purpose, or that limited public funds should be used for what appears essentially to be an attempt by the appellant to pursue his criticisms of the conduct of the ICL at trial. A number of the documents attached to the appellant’s affidavit confirm that impression.
If, which is by no means clear from the material relied upon by him, the appellant contends that the ICL’s continued participation in the appeal would be conducive to the best interests of the children the subject of the parenting proceedings which give rise to the appeal, nothing raised by him begins to establish in what way that could or would be so.
On the contrary, the affidavit of the appellant and the annexure to it suggests that the appellant seeks to force the ICL to continue to represent the children in the appeal for an ulterior purpose, that being, to more readily pursue his criticisms of the ICL.
On the material before the Court, to force the ICL to continue to participate in the appeal would serve no useful purpose, and may well be aiding and abetting the appellant’s pursuit of a collateral and inappropriate purpose.
The Court will order that the ICL be excused from further participation in the appeal. To the extent that any of the other relief sought by the appellant falls within the jurisdictional competence of the Full Court, the Court would not grant relief in the terms of any of the relief sought by the appellant.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 21 March 2013.
Associate:
Date: 21 March 2013
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