SS and Ah - [2008] FamCA 823

FAMILY COURT OF AUSTRALIA

SS & AH

[2008] FamCA 823

FAMILY LAW – CHILDREN – Appointment of Independent Children’s Lawyer

APPLICANT:

RESPONDENT:

FILE NUMBER:

BRF

1070

1999

DATE DELIVERED:

29 September 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

29 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Mother appeared in person

COUNSEL FOR THE RESPONDENT:

The Respondent Father appeared in person

Orders

IT IS ORDERED THAT:

The interests, in these proceedings of the children, J born in October 1993 and K born in September 1997, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia in Brisbane.

Upon the appointment of an Independent Children’s Lawyer, the Independent Children’s Lawyer is to engage a psychiatrist to assess the Mother and Father, but not the children.

Upon the appointment of an Independent Children’s Lawyer, the Independent Children’s Lawyer be given leave to inspect the Family Court file and forward such material to the psychiatrist engaged to assess the Mother and Father.

The parties are prohibited from filing any further material regarding contraventions or children’s matters without leave of Justice Barry or in his absence another Judge of the Family Court.

The matter be adjourned to 9.30 am on 30 September 2008 at the Brisbane Registry of the Family Court.

NOTATION:

Legal Aid Queensland is requested to give favourable consideration to the request for the appointment of an Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym SS & AH (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1070 of 1999

Applicant

And

Respondent

REASONS FOR JUDGMENT

The issue that has been held over from the hearing on 23 July is an important issue whether children's issues generally should be reopened. I have reserved my decision on this question from that date.
In her application filed on 8 October 2007, the mother sought orders that the children live with her, that the children spend limited supervised time with the father to accommodate their needs and best interests.
There was an order sought which I struck out seeking the renewal of the children's UK and Australian passports.
The Applicant Mother sought the issue of subpoenae to various parties without any specificity and I dismissed that application.
A further order that was sought was for full educational, medical and psychological assessment and support of the child J and support his learning needs with a particular person to be appointed to tutor J.
Paragraph 7 was for the appointment by Court order of either Dr V, Dr L and Mr G, Dr C and…

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 SS and Ah

Details

AGLC: SS and Ah [2008] FamCA 823
Case: [2008] FamCA 823
Decision Date: 29 September 2008

CaseChat Overview and Summary

In the Family Court of Australia, Justice Barry considered proceedings involving the children J and K, born in 1993 and 1997 respectively. The specific nature of the dispute between the parties is not detailed, but the orders indicate a focus on the children's welfare and parental conduct.

The court was required to determine how best to ensure the independent representation of the children's interests and to gather relevant information concerning the parents. This included the appointment of an Independent Children’s Lawyer and the engagement of a psychiatrist to assess both the Mother and Father. The court also needed to manage the filing of further material by the parties concerning contraventions or children's matters.

Justice Barry ordered that the children, J and K, be independently represented by a lawyer, requesting Legal Aid Queensland to arrange for an Independent Children’s Lawyer. This lawyer was granted liberty to inspect and copy all filed documents. Upon appointment, the Independent Children’s Lawyer was directed to engage a psychiatrist to assess the Mother and Father, and was given leave to inspect the Family Court file to forward relevant material to the psychiatrist. Furthermore, the parties were prohibited from filing further material regarding contraventions or children’s matters without leave of the court. The matter was adjourned for further consideration.

Orders

Orders of the court

IT IS ORDERED THAT:

The interests, in these proceedings of the children, J born in October 1993 and K born in September 1997, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia in Brisbane.

Upon the appointment of an Independent Children’s Lawyer, the Independent Children’s Lawyer is to engage a psychiatrist to assess the Mother and Father, but not the children.

Upon the appointment of an Independent Children’s Lawyer, the Independent Children’s Lawyer be given leave to inspect the Family Court file and forward such material to the psychiatrist engaged to assess the Mother and Father.

The parties are prohibited from filing any further material regarding contraventions or children’s matters without leave of Justice Barry or in his absence another Judge of the Family Court.

The matter be adjourned to 9.30 am on 30 September 2008 at the Brisbane Registry of the Family Court.

NOTATION:

Legal Aid Queensland is requested to give favourable consideration to the request for the appointment of an Independent Children’s Lawyer.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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