FATHER IN A PARENTING PROCEEDING SEEKS THE DISCHARGE OF THE INDEPENDENT CHILD’S LAWYER
Zong & Lim (No 3) [2021] FCCA 238 (19 January 2021)
This is a parenting proceeding where the husband files for an application for a new Independent Children’s Lawyer.
Facts:
The father has got an application to have the Independent Children’s Lawyer discharged. Both the Independent Children’s Lawyer’s counsel and the mother’s counsel seek that this application be dismissed.
He takes issue with the Independent Children’s Lawyer with regard to her attitude towards him.
One of the issues which came before the court at some stage was whether the father had purchased aeroplane tickets for the child to fly from Brisbane to Perth. The chronology filed by the Independent Children’s Lawyer on 14 September 2020 states that the father had not purchased the air tickets. That was correct at that stage. The father did not purchase air tickets until 17 September 2020. It came before the court on 21 September 2020. It became obvious that the court was aware that he had purchased air tickets by the time it came before the court on 21 September 2020.
The father takes issue with the chronology prepared some days before.
On that particular issue, the father could not prove that there had been any misconduct on the part of the Independent Children’s Lawyer or that she was not discharging her duties pursuant to the Family Law Act 1975 with regard to the best interests of the child.
The next issue had to do with the appeal hearing. He seems to be saying the Independent Children’s Lawyer ought be discharged because she would not support a stay of the orders of Judge Tonkin.
He had an appeal against the orders of Judge Tonkin. He is saying that simply because the Independent Children’s Lawyer would not support his stay, that is some sort of misconduct.
Issue: Should the Independent Children’s Lawyer be discharged?
Held:
If all lawyers who supported a losing case were restrained from acting for their clients, there would be nobody to defend anything. In the court’s view, what he is seeking is simply a misunderstanding of a lawyer’s role. A lawyer’s role is to represent their client and is to put submissions before the court. It may be that a lawyer wrongly interprets the law. A wrong interpretation may only be a wrong interpretation once a court decides that, but there is no issue here of misconduct.
The court cannot see any personal bias or any misconduct on the part of the Independent Children’s Lawyer against the father, so on that particular issue, the father would not be successful in having the Independent Children’s Lawyer discharged.
There is nothing there which shows any bias, any misunderstanding of the case, any practice which would jeopardise the case of either party because of some misleading behaviour. The father does have a right to run his case. He will run his case, but it is not on the basis that the Independent Children’s Lawyer here ought be discharged, because there is no evidence to support his claim.
Conclusion: The application is hereby dismissed.