SARGENT & SELWYN - [2019] FamCAFC 232

FAMILY COURT OF AUSTRALIA

SARGENT & SELWYN

[2019] FamCAFC 232

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant father seeks to have the Independent Children’s Lawyer discharged – Best interests of a child – Where the Independent Children’s Lawyer had been discharged pursuant to orders made by the primary judge – Where the appellant father had numerous complaint concerning the Independent Children’s Lawyers conduct during the proceedings – Where the Independent Children’s Lawyer had met their obligation in regards to presenting evidence – Where the father’s claims of the Independent Children’s Lawyer being partisan towards the mother does not withstand scrutiny – Where the Full Court makes an order for the Independent Children’s Lawyer to be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth) – Application dismissed.

Family Law Act 1975 (Cth) ss 60CA, 64B(2), 68L, 68LA
Family Law Rules 2004 (Cth) rr 8.02, 22.04, 22.05
Federal Circuit Court Rules 2001 (Cth) r 16.05

Bennett and Bennett (No 2) (1994) FLC 92-463
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76
Magro & Magro (1989) FLC 92-005; [1989] FamCA 2
Re K (1994) FLC 92-461; [1994] FamCA 21

APPELLANT:

Mr Sargent

RESPONDENT:

Ms Selwyn

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

SYC

7405

2013

APPEAL NUMBER:

142

2018

DATE DELIVERED:

12 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Austin JJ

HEARING DATE:

12 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2018

LOWER COURT MNC:

[2018] FCCA 2836

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders made on 12 November 2019

The appellant’s Application in an Appeal filed 16 October 2019, seeking that the Independent Children’s Lawyer be discharged from the appeal, be dismissed.
Pursuant to s 68L(2) of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed on behalf of the child, X born … 2012, including in the appeal, and that this order operate from the date of filing the Notice of Appeal.
The appellant’s Application in an Appeal filed 16 October 2019, seeking to adduce further evidence in the appeal, be dismissed.
Judgment be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family…

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.

Keep reading for free

Create a free CaseChat account to read SARGENT & SELWYN and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FamCAFC 232
Decision Date: 12 November 2019

CaseChat Overview and Summary

In this appeal, Mr Sargent sought to discharge the Independent Children’s Lawyer (“ICL”) appointed in the proceedings before the Federal Circuit Court of Australia. The appeal was brought against final parenting orders made by the Federal Circuit Court of Australia in relation to the parties’ son, X, born in 2012. The primary judge had made an order for an ICL to be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth). However, the primary judge subsequently discharged the order for the ICL by Order 27 made on 4 October 2018. The Full Court was asked to determine whether the ICL should be discharged and, if not, whether the ICL should be appointed in the appeal proceedings.

The Full Court had to consider the scope of the ICL’s role and the effect of Order 27. The father’s complaints regarding the ICL’s conduct during the proceedings were also considered. The father’s complaints included assertions that the ICL failed to present evidence in relation to the child’s views, failed to critically examine the family report and evidence given by the family consultant, and was partisan towards the mother. The Full Court also considered whether the ICL had acted beyond the scope of his authority after Order 27 had been made.

The Full Court found that, while the role of the ICL was a creature of statute and required an order pursuant to s 68L(2) of the Act to operate, the ICL should be treated as a person affected by the proceedings and should be served with the Notice of Appeal in accordance with r 22.04 and r 22.05 of the Family Law Rules 2004 (Cth). Therefore, if the order for the ICL had been discharged, the ICL could seek a new order, for example, from the Appeals Registrar. However, in this case, Order 27 did not include any appeal provisions, and the ICL’s role and duty continued for the appeal. The Full Court found that the father’s complaints regarding the ICL’s conduct did not withstand scrutiny. The Full Court also found that it was in the child’s interests that his interests were represented in the appeal.

The Full Court dismissed the father’s application for the discharge of the ICL and made an order pursuant to s 68L of the Act for an ICL to be appointed in the appeal. The order for the appointment of an ICL was expressed to operate from the date of filing of the Notice of Appeal. The Full Court also dismissed the father’s application to adduce further evidence in the appeal and reserved judgment on the appeal itself.

Orders