Thomas & Anor and Franklin & Anor - [2014] FamCA 1037

FAMILY COURT OF AUSTRALIA

THOMAS AND ANOR & FRANKLIN AND ANOR

[2014] FamCA 1037

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR DISCHARGE OF INDEPENDENT CHILDREN’S LAWYER – BIAS – whether a reasonable person would reasonably consider the Independent Children’s Lawyer had formed a view adverse to their position based not solely on the evidence – consideration of the special role of the Independent Children’s Lawyer – application for discharge dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO EXCLUDE FAMILY REPORT – whether the Family Report writer complied with obligations under the Rules – whether there was a fundamental failure to consider all of the relevant information –report excluded.

Family Law Act 1975 (Cth) s68LA
Family Law Rules 2004 (Cth) r15.51, 15.54, 15.59
Child Protection Act 1999 (Qld)

F and R (No. 2) (1992) FLC 92-314; (1992) 15 Fam LR 662

In the Marriage of Bennett (1990) 14 Fam LR 397

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1; (1995) FLC 92-615

Re K (1994) 17 Fam LR 537

Re P (a child): Separate Representative v JHE and GAW (1993) FLC 92-376; (1993) 16 Fam LR 485

Re R (1995) FLC 92-564; (1994) 18 Fam LR 370
T v L (2000) FLC 93-056; (2000) 27 Fam LR 40; [2000] FamCA 351

FIRST APPLICANT:	Mr Thomas
SECOND APPLICANT	Ms Thomas

FIRST RESPONDENT:	Ms Franklin
SECOND RESPONDENT	Mr Lowther

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

2356

2013

DATE DELIVERED:

21 November 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Linklater-Steele

SOLICITOR FOR THE APPLICANTS:

Honeychurch Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Tucker

SOLICITOR FOR THE FIRST RESPONDENT:	Carroll Fairon Solicitors
THE SECOND RESPONDENT:	No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Walker-Munro

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

That no party have leave to rely on the Family Report prepared by Mr C.
That the parties are restrained and an injunction issue restraining each of them from providing a copy of the Family Report prepared by Mr C to any person.
That the Independent Children’s Lawyer forthwith arrange for the preparation of a further Family Report for use in the proceedings.
That the application for the discharge of the Independent Children’s Lawyer is dismissed.
That the application by the Independent Children’s Lawyer that the Applicants pay costs is dismissed.
That the Applicants’ Application for leave to provide a copy of all relevant material, including the records of the Department of Communities, Child Safety and Disability Services (the Department), Family Reports and any child assessments to all of the child’s treating medical practitioners is adjourned to the next interim hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas & Franklin has been approved by the Chief…

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.

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Details

Case: [2014] FamCA 1037
Decision Date: 21 November 2014

CaseChat Overview and Summary

In proceedings before Hogan J, the applicants sought the discharge of the Independent Children’s Lawyer (ICL) on the grounds of apprehended bias, and also sought to exclude a Family Report prepared by Mr C. The ICL, in turn, applied for the applicants to pay costs.

The court was required to determine whether a reasonable person, properly informed of the circumstances, would apprehend that the ICL had formed a view adverse to the applicants' position, not solely based on the evidence presented. Additionally, the court had to consider whether the Family Report writer had complied with their obligations under the Rules, specifically whether there had been a fundamental failure to consider all relevant information, which would warrant the exclusion of the report.

Hogan J reasoned that the special role of an ICL requires them to form an independent view based on the evidence, and that the applicants had not demonstrated that a reasonable person would apprehend bias. Consequently, the application to discharge the ICL was dismissed. Regarding the Family Report, the court found that there had been a fundamental failure by the report writer to consider all relevant information, leading to its exclusion. The ICL's application for costs against the applicants was also dismissed.

The court ordered that no party have leave to rely on the Family Report prepared by Mr C and that the parties be restrained from providing a copy of this report to any person. A further Family Report was to be prepared for use in the proceedings. The application for the discharge of the ICL was dismissed, as was the ICL's application for costs. The applicants' application for leave to provide certain materials to the child's treating medical practitioners was adjourned to the next interim hearing.

Orders

Orders of the court

That no party have leave to rely on the Family Report prepared by Mr C.

That the parties are restrained and an injunction issue restraining each of them from providing a copy of the Family Report prepared by Mr C to any person.

That the Independent Children’s Lawyer forthwith arrange for the preparation of a further Family Report for use in the proceedings.

That the application for the discharge of the Independent Children’s Lawyer is dismissed.

That the application by the Independent Children’s Lawyer that the Applicants pay costs is dismissed.

That the Applicants’ Application for leave to provide a copy of all relevant material, including the records of the Department of Communities, Child Safety and Disability Services (the Department), Family Reports and any child assessments to all of the child’s treating medical practitioners is adjourned to the next interim hearing.

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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