Seaward and MacDuff - [2011] FMCAfam 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEAWARD & MACDUFF

[2011] FMCAfam 986

FAMILY LAW Practice and procedure – oral application for removal of Independent Children’s Lawyer.

Family Law Act 1975, ss.68L(2), 68LA

Bennett & Bennett (1991) FLC 92-191; 14 Fam LR 397

Applicant:

MR SEAWARD

Respondent:

MS MACDUFF

File Number:

SYC 2177 of 2011

Judgment of:

Monahan FM

Hearing date:

18 August 2011

Date of Last Submission:

18 August 2011

Delivered at:

Sydney

Delivered on:

18 August 2011

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Self-represented litigant

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Abrams Turner Whelan

Family Lawyers

Independent Children’s Lawyer:

Brian Samuel & Associates

ORDERS

All extant applications be adjourned to this Court on 19 August 2011 at 2:15pm for interim hearing (“the interim hearing”) with an estimated duration of not more than two (2) hours.
The Applicant’s oral application made on 18 August 2011 for the discharge of the Independent Children’s Lawyer be dismissed.
The Independent Children’s Lawyer be granted leave to appear at the interim hearing by telephone.

AND THE COURT NOTES THAT:

(A)The purpose of the interim hearing is to consider the Applicant’s Application in a Case (which includes an order for a recovery order), to deal with any outstanding issues relating to material produced under subpoena and to make further directions in the matter.

IT IS NOTED that publication of this judgment under the pseudonym Seaward & MacDuff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2177 of 2011

MR SEAWARD

Applicant

And

MS MACDUFF

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons are being delivered orally and may be settled should the need arise or if requested.
The applicant in these proceedings is MR SEAWARD (“the father”) and the respondent is MS MACDUFF (“the mother”). In the substantive proceedings the father is seeking orders for the three children of the relationship, Z, born (omitted) 1998 (“Z”), and X, born (omitted) 2004 (“X”), and Y, born (omitted) 2005 (“Y”), (“the children”) live with him and spend time with the mother, but not in the presence of or left in the sole care of the mother’s partner, Mr MacDuff. Interestingly, in light of the oral application now before the Court, the father also sought an order in his Initiating Application filed 10 April 2011 for the appointment of an Independent Children’s Lawyer (“ICL”).
Although the father was initially represented by Mr Bruce Cameron, Mr Cameron withdrew on the eve of the first return date of the father’s Application.
The mother opposes the father’s Application sought by the father and seeks different parenting orders in relation to the children that would achieve an outcome whereby both parties would have equal shared parental responsibility, the children would live with her and spend time with the father.
This matter has been before me on a number of occasions, most recently on 23 June 2011. On that occasion I listed…

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 Seaward and MacDuff

Details

AGLC: Seaward and MacDuff [2011] FMCAfam 986
Case: [2011] FMCAfam 986
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Mr Seaward (the father) filed a case against Ms MacDuff (the mother) concerning parenting orders for their three children, Z, X, and Y. The father sought an order for the children to live with him while spending time with the mother, but not in the presence or care of the mother's partner, Mr MacDuff. He also sought an order for the appointment of an Independent Children's Lawyer (ICL), which was granted, and Mr Samuel was subsequently appointed. The father filed an Application in a Case on 22 July 2011, seeking various interim orders, including a recovery order in relation to the children and a reinterview of the children by the ICL. When the matter was first mentioned before the court, the father confirmed that he was seeking an order to discharge the ICL. The sole issue before the court was whether the ICL, Mr Samuel, should be discharged and a different ICL appointed.

The court considered the power to appoint an ICL under s.68L(2) of the Family Law Act 1975, and noted that there is case law supporting the court's power to remove an ICL if there are proper reasons for doing so, such as a meritorious complaint about the conduct of the ICL or where there is a reasonable apprehension that the ICL would not deal with the matter impartially. The court also considered the role of the ICL, as outlined in s.68LA of the Act, which includes forming an independent view of what is in the best interests of the child and acting in relation to the proceedings in what the ICL believes to be the best interests of the child.

After considering the submissions of the father, mother, and ICL, the court found that the father's complaints about the ICL did not justify the discharge of Mr Samuel as the ICL in this case. Consequently, the father's oral application to discharge the ICL was dismissed.

The court ordered that all extant applications be adjourned to the court on 19 August 2011 for an interim hearing, with an estimated duration of not more than two hours. The purpose of the interim hearing was to consider the father's Application in a Case, to deal with any outstanding issues relating to material produced under subpoena, and to make further directions in the matter. The Independent Children's Lawyer was granted leave to appear at the interim hearing by telephone.

Orders