Thursday, 12 March 2009

FMC case: independent children's lawyer discharged

In the recent Federal Magistrates Court case of Brock and Brock, Federal Magistrate O'Sullivan heard an application by the husband to discharge the independent children's lawyer.

The application, made in a timely manner, was on the basis that the husband, who lived in a small country town, rang local small firm to obtain advice as to whether or not he should hold over the children. That firm was the firm from which the later appointed independent children's lawyer came. She said that there was no file note or record of the call, and the name of the man to whom the husband spoke was unknown, let alone that the firm had never been engaged by the husband.

O'Sullivan FM conducted a thorough review of authorities dealing with the issue of when lawyers, including independent children's lawyers, should be discharged, concluding:

I acknowledge and accept that the Court should be slow to discharge the ICL...
Whilst this matter was not without difficulty, the most significant matter,
in my view, is that the husband has deposed and asserts that the offices of the
ICL, which is a small firm in a country town, provided him with advice, upon
which he acted in circumstances where he could reasonably have assumed legal
proceedings may be commenced and he was entitled to expect that that advice was
confidential. Whilst he could not point to a letter of engagement or file, in my
view, what is at stake is that the integrity of the legal process and the legal
profession so that all parties involved in litigation may have confidence in the
integrity of the legal system and the process.
In my view the justice of
this matter does require that the ICL be restrained from acting.

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