Snell and Snell (No 4)

[2015] FamCA 131

FAMILY COURT OF AUSTRALIA

SNELL & SNELL (NO 4) [2015] FamCA 131

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the removal of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer has complied with the directions of the Court – Application that a judicial officer disqualify themselves for bias – Where both applications are dismissed

APPLICANT: Mr Snell

RESPONDENT:	Ms Snell
INDEPENDENT CHILDREN’S LAWYER:	Patrick Dooley

FILE NUMBER: BRC 4332 of 2012

DATE DELIVERED: 17 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 17 February 2015

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Muir Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

IT IS ORDERED THAT:

1. The Father’s oral applications made today in relation to the following issues:

a.the Independent Children’s Lawyer being discharged; and

b.the Honourable Justice Kent recusing himself from hearing the trial of these proceedings on account of bias

are dismissed.

1. Leave is given to the parties to inspect any documentation produced by the C Region PCYC in answer to a subpoena filed on 30 January 2015.

1. Leave is given to the Independent Children’s Lawyer to provide to the Mother and Father a copy of a supplementary bundle of subpoenaed documentation produced by the Queensland Police Service and Mr L proposed to be tendered in evidence in the trial of these proceedings.

1. Leave is given to the Australian Federal Police Officers present today to be provided with the subpoenaed documentation produced by the C Region PCYC in answer to a subpoena filed on 30 January 2015 and to monitor the Father while he inspects such documentation.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4332/2012

Mr Snell

Applicant

And

Ms Snell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Snell makes a renewed application for the removal of the Independent Children’s Lawyer (“the ICL”) from further participation in the proceedings.  The basis of that application was said to be the ICL’s “gross incompetence” in failing to subpoena documents from the K School as was the topic of subpoenas on the last occasion in Court. 

2. It has been confirmed that in fact a subpoena was issued to K School and indeed my court officer confirms that documents have arrived from K School in response to that subpoena.  On that basis it does not seem to me that there is any substance in the application now made and I dismiss it.

3. Mr Snell again makes an application that I recuse myself for bias.  The basis of that application is said to be my refusal to allow Mr Snell to call witnesses in his case that would have assisted his case.  This topic has been dealt with in reasons I earlier delivered, but for the record, the basis of the present application is the assertion that I have refused every request by Mr Snell to rely upon other witnesses or evidence. 

4. That is not so on the basis that Exhibit 1 contains a number of witness statements; and I sought and obtained the agreement of each of the ICL and the solicitor for the mother for Exhibit 1 to be admitted into evidence; and, moreover, for the subject matter of the evidence contained within Exhibit 1 to be the subject of admissions.  Those statements include those of Mr M, Ms N; Ms O, Ms P, Mr Q, Ms R, Ms S, Mr T and Pastor U.  In other words, that evidence is before the Court in terms of the contents of Exhibit 1 as well as the expanded versions to some extent of what those witnesses would say on the father’s account. 

5. In other words the evidence those witnesses would have given by way of evidence-in-chief is before the Court and neither the ICL nor the mother sought to cross-examine those witnesses on those versions.  I therefore find no substance in the submission that the Court has refused, as Mr Snell puts it, from allowing him to rely upon that evidence or those witnesses. 

6. I therefore dismiss his application that I recuse myself.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 February 2015.

Associate: 

Date:  17 February 2015