Brother Opposes Parent’s Parental Responsibility
Fierro & Fierro [2022] FedCFamC1A 72 (8 July 2022)
The applicant, who is the brother of the child, seeks leave to appeal out of time against an order dismissing his application for the discharge of the Independent Children’s Lawyer (“the ICL”). The ICL sought the costs of opposing the application. The Court, in adjudicating this dispute, relied upon procedural fairness.
Facts:
The applicant in these proceedings is the same applicant in the underlying parenting proceedings, which commenced in October 2021 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), which concerns a child who is now 14 years of age. The applicant is the child’s adult brother. The respondents joined these proceedings and those below are the parents of the child and the brother. Consent orders were made only a few months beforehand on 21 May 2021, providing for the parents to have equal shared parental responsibility for the child, for the child to live with them, and for the child to communicate with the brother in only certain confined ways.
The brother is seeking to upset those consent orders. On 8 March 2022, an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s best interests. The orders expressly noted the brother’s request that Ms. E not be appointed as the ICL, but did not purport to bind the decision of Tasmania Legal Aid about who should fulfill the role. The brother’s objection to Ms. E arose out of her collegiate involvement with the ICL who was appointed in the prior proceedings completed in October 2021 (Mr. D).
Despite the brother’s request, Ms. E was still appointed as the ICL by Tasmania Legal Aid. Upon learning of her appointment, the brother filed an application for her discharge on 27 March 2022, which was heard and dismissed by the primary judge on 22 April 2022. The brother appealed from the dismissal order within time but then discontinued the appeal on 23 May 2022. Then, weeks later on 16 June 2022, the brother filed an Application in an Appeal seeking leave to file a fresh appeal out of time against the dismissal order made on 22 April 2022.
The brother indicated within his Application in an Appeal (in Part C) that he wants the application determined on the papers in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Appeal Registrar confirmed with the brother that was indeed so. The ICL agreed to that course, but the parents did not reply. The ICL sought costs of $665.84 in having to prepare submissions to meet and oppose the application.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Analysis:
The brother’s complaints about Ms. E are replete with florid allegations of her inexperience, incompetence, and bias, but such complaints are seemingly based entirely upon his perception. The dismissal of the application to discharge the particular ICL assigned to the proceedings did not determine in any way any of the brother’s legal rights.
In this instance, the primary judge merely ruled on a procedural question – whether or not Ms. E could remain the appointed ICL – and did not resolve the parties’ rights in any way. The dismissal of the application to remove Ms. E as the ICL is not a “judgment” from which any appeal competently lies.
Once orders are finally pronounced under Pt VII of the Act to conclude the parties’ substantive dispute, the brother will be satisfied and no appeal will result. Even if he is dissatisfied, in any appeal brought from those final orders it might still be open to challenge the primary judge’s interlocutory refusal to discharge Ms. E, provided certain conditions are met.
Since no appeal competently lies from the dismissal order, it would be pointless to grant the leave to bring his appeal out of time. No further evidence led by the brother could cure the legal defect which besets his proposed appeal and, since there will be no appeal, there is no need for transcript. In ordinary circumstances, it is likely the brother would be ordered to pay the costs sought by ICL but, since the ICL consented to the application being determined on the papers in chambers, the making of such an order without allowing any response from the brother would deprive him of procedural fairness.
Conclusion:
Leave to bring an appeal from the order made by the Federal Circuit and Family Court of Australia (Division 1) on 22 April 2022 is refused and the Application in an Appeal filed on 16 June 2022 is dismissed. The Independent Children’s Lawyer’s application for costs is dismissed.
