South and South

[2010] FamCA 877

FAMILY COURT OF AUSTRALIA

SOUTH & SOUTH [2010] FamCA 877

FAMILY LAW – PRACTICE AND PROCEDURE – Discharge of appointment of Independent Children’s Lawyer

APPLICANT: Mr South

RESPONDENT: Ms South

INDEPENDENT CHILDREN’S LAWYER: Mr M. Finn

FILE NUMBER: DGF 1930 of 2002

DATE DELIVERED: 23 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 23 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER Mr M. Finn

Orders

1. THAT leave be granted to Mr Finn to file and rely upon his affidavit sworn this day.

2. THE appointment of the Independent Children’s Lawyer in these proceedings be discharged, save that it is reserved to the husband to apply for a reinstatement of Mr Finn, but only upon proper material filed and served on all parties.

3. THE allocated hearing date of 19 October 2010 before Registrar Mestrovic be otherwise vacated.

4. THAT the ex tempore reasons for judgment be transcribed and placed upon the Court file and made available to the Independent Children’s Lawyer and to Registrar Mestrovic.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1930 OF 2002

MR SOUTH

Applicant

And

MS SOUTH

Respondent

REASONS FOR JUDGMENT

1. The matter of South has been re-listed before me by the independent children’s lawyer.  There are no appearances by or on behalf of the husband or wife or their former legal practitioners.  There were orders made on 28 May 2008 which largely finalised matters before the court. Pursuant to those orders the independent children’s lawyer was, however, continued in their appointment in the proceedings until further order.  The application and request before me today is that they be formally and forever excused from the proceedings and their appointment be discharged.

2. Mr Finn is the appointed independent children’s lawyer and he has presented to the court and seeks leave to file an affidavit sworn this day.  That affidavit annexes a copy of the order, and ongoing correspondence which he has had with the solicitors or with the husband.  Of some significance is that the affidavit highlights the report of Dr K, psychologist, and his assessment of issues of and concerning the father, and I have read only paragraph 4 of that affidavit. 

3. It does seem that the reality, in this case is that neither of the parents are looking to pursue any issue before the court.  Mr Finn has advised the parents and/or their previous solicitors of this application and there has been no objection.  The matter has been listed this day.  The matter, however, that has arisen is that a directions hearing date was listed at 19 October 2010 and that is identified in annexure (h).  Likewise, and perhaps of more significance, when Mr Finn corresponded with the husband, he advised the husband of that date and not this day.  In particular, I have regard to the letter dated 10 September 2010, which is exhibit “G” to the affidavit. 

4. All matters considered, the balance of convenience is that I grant the application, on the basis of this affidavit, to discharge the appointment of the independent children’s lawyer.  I will do so, however, on the basis of a right of re-instatement to the husband, if just cause and good reasons can be shown, and as currently informed, I do not see that as a likely possibility.  There will be no court sitting on 19 October 2010.  That date falls during the Family Law legal conference meeting in Canberra. 

5. That fact itself would necessitate the adjournment of the proceedings from that day, but having reviewed carefully the matters before the court, it is more appropriate to now make the order sought on the above stated basis.  I will have these reasons transcribed, placed upon the court file, and forwarded to the independent children’s lawyer only. 

I certify that the preceding five
(5) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young delivered on
23 September 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………