Ainsley & Ainsley
[2022] FedCFamC1F 319
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ainsley & Ainsley [2022] FedCFamC1F 319
File number(s): WOC 455 of 2019 Judgment of: REES J Date of judgment: 12 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Department of Communities and Justice (“DCJ”) holds concerns for the welfare of the mother’s child who is not the subject of these proceedings – Where DCJ request access to a copy of the single expert report – Where DCJ is not required to seek permission to inspect and copy a court document in accordance with r 15.13(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.13(1)(c) Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 12 May 2022 Place: Sydney Solicitor for the Applicant: RMB Family Lawyers Wollongong First Respondent: Litigant in person Solicitor for the Second Respondent: DGB Lawyers Solicitor for the Third & Fourth Respondents: Rossi Simicic Lawyers Independent Children's Lawyer: Bowral Legal Counsel for the Independent Children’s Lawyer: Mr Cook Solicitor for the Interested Party: Principal Solicitor, Department of Communities and Justice ORDERS
WOC 455 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AINSLEY
Applicant
AND: MS AINSLEY
First Respondent
MS RANDALL
Second Respondent
MS L (and another named in the Schedule)
Third Respondent
BOWRAL LEGAL
Independent Children's LawyerDEPARTMENT OF COMMUNITIES AND JUSTICE
Interested Party
ORDER MADE BY:
REES J
DATE OF ORDER:
12 MAY 2022
THE COURT ORDERS:
1.That a copy of the report of Dr J dated 4 May 2022 be provided to the Department of Communities and Justice pursuant to the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.13(1)(c).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Ainsley & Ainsley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
There are proceedings before the Court relating to two children whose parents are Mr Ainsley (“the father”) and Ms Ainsley (“the mother”). The other parties to the proceedings are the paternal grandmother and the maternal grandparents of the children.
The mother has another child, SS, who was born after the parents separated and is not the subject of these proceedings.
A single expert, Dr J, has prepared an updated report which was released to the parties.
The Department of Communities and Justice (“DCJ”) has made a request for access to
Dr J’s report. In support of that request DCJ states:
DCJ hold concerns in relation to the mental health of [the mother] as during recent home visits her home has appeared to be very cluttered and dirty. DCJ are worried that this may impact on the health and safety of SS who is only young and relies on her mother to be able to meet her everyday needs. DCJ also hold concerns in relation to the parenting capacity of [the mother] as DCJ has information that SS spends a significant amount of time in the care of her maternal grandparents.
The request is made pursuant to r 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which provides, relevantly:
15.13 Searching court record and copying documents
(1)The following persons may search the court record relating to a proceeding, and inspect and copy a document forming part of the court record:
(a) the Attorney‑General;
(b) a party, a lawyer for a party, or an independent children’s lawyer, in the proceeding;
(c) if the proceeding affects, or may affect, the welfare of a child—a child welfare officer of a State or Territory;
…
…
(3) The parts of the court record that may be searched, inspected and copied in accordance with subrule (1) or (2) are:
(a) court documents; and
(b) with the permission of the court, any other part of the court record.
…
(6) In this rule:
court document includes a document filed in a proceeding, but does not include correspondence or a transcript forming part of the court record.
The rule does not require that the child whose welfare is said to be affected, or potentially affected, must be a child who is the subject of the proceedings.
DCJ is not required to seek permission to inspect and copy a court document. Since
Dr J’s report has been filed in the proceedings, it comes within the definition of “court document”.
The matter was listed before me this morning so that all interested parties, including DCJ, could be heard in relation to the request.
The Independent Children’s Lawyer supported the request.
The father did not oppose the request.
The paternal grandmother did not oppose the request.
The solicitor for the maternal grandparents had not been able to obtain instructions.
The mother strongly opposed the request. She submitted, correctly, that she had not yet had the opportunity to challenge Dr J’s report and that there was a significant body of evidence which would emerge in the substantive proceedings which would support her position that little or no reliance should be placed on Dr J’s opinion.
However, I also accept that Dr J’s opinions as set out in her report are capable of informing decisions made by DCJ in relation to the child SS.
Dr J, in her report, recommended that a copy of her report be provided to DCJ.
DCJ and those responsible for casework in relation to SS will understand that the report is untested.
The report will be provided to DCJ in accordance with their request.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 12 May 2022
SCHEDULE OF PARTIES
WOC 455 of 2019 Respondents
Fourth Respondent:
MR C
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