Wilburn & Wilburn (No 2)

[2021] FCCA 813

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wilburn & Wilburn (No 2) [2021] FCCA 813

File number(s):	DGC 1426 of 2018
Judgment of:	JUDGE BURCHARDT
Date of judgment:	19 April 2021
Catchwords:	FAMILY LAW – Ex tempore ruling appointing Independent Children’s Lawyer
Legislation:	Family Law Act 1975 (Cth) ss 68L(2)
Cases cited:	Wilburn & Wilburn [2019] FCCA 2131
Number of paragraphs:	30
Date of hearing:	19 April 2021
Place:	Dandenong
Counsel for the First Applicant:	Mr Wilson
Solicitor for the First Applicant:	Westminster Lawyers Pty Ltd
Solicitor for the First Respondent:	Tyler Tipping & Woods
Counsel for the First Respondent:	Mr Laidlaw

ORDERS

DGC 1426 of 2018

BETWEEN:

MS WILBURN

Applicant

AND:

MR WILBURN

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	19 APRIL 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to this Court for mention before Judge Burchardt on 27 April 2021 at 9.30 am.

2.Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children Z born in 2014, Y born in 2012 and X born in 2021 (collectively, ‘the children’) be independently represented by a lawyer, Mr Alex McCormack of McCormack & Co, AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

3.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer shall file a Notice of Address for Service.

4.Within 48 hours of notification of such appointment the solicitors for the respective parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(Revised from Transcript)

JUDGE BURCHARDT:

1. In order to explain the course of action I am going to embark on, it is appropriate to set out some of the relevant history of this matter, which will take a little time.  On 23 December 2020, the mother filed an application.  It was made returnable on…