Bunyon and Lewis (No 2)

[2013] FamCA 354

FAMILY COURT OF AUSTRALIA

BUNYON & LEWIS (NO. 2) [2013] FamCA 354

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Family report ordered.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bunyon

RESPONDENT: Mr Lewis

FILE NUMBER: MLC 11439 of 2012

DATE DELIVERED: 8 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Staindl

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1. That all applications for final orders be adjourned for hearing as the second case in the list commencing on 12 August 2013 but not before 19 August 2013 at 10.00am as a three day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That by 4 pm on 11 June 2013 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

3. That the applicant pay all setting down and trial fees by 4 pm on 11 June 2013.

4. That by 4 pm on 28 June 2013 the respondent file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

5. That by 4 pm on 5 July 2013 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

6. That no party file any further material other than as provided by these orders without leave of the Court.

7. That pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a family report not to be commenced until after 5 July 2013 but to be completed and released by 12 August 2013.

8. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

9. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

10. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

11. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

12. That the practitioners for the parties file and serve electronically to … by 4 pm on 15 August 2013 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of objections to evidence upon which rulings are required; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bunyon & Lewis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11439  of 2012

Ms Bunyon

Applicant

And

Mr Lewis

Respondent

REASONS FOR JUDGMENT

1. On 8 May 2013, I set this case down for trial.  These reasons concern interlocutory rulings I then made to progress that trial.  The proceedings concern a child E, (“the child”) who is now four years of age.

2. The unusual nature of the substantive issue is that the applicant who is a cousin of the child’s deceased mother, seeks orders that the child live in Australia with her father.  The father and the child are currently living in The Netherlands.  They have been there since late 2012.

3. There were three contentious interlocutory issues which were:

   (a)Should a family report be ordered?  It was supported by the applicant but opposed by the father.

   (b)Should the father and the child come to Australia for the purposes of any family report so ordered?; and

   (c)If a family report should be ordered, should it be privately funded and contracted to a forensic psychologist or to a family consultant?

4. I ruled:

   (a)a family report should be undertaken;

   (b)the issue of the child’s attendance in Australia and that of the father, is a matter for the family consultant and if there is a disagreement about the process which cannot be resolved by the family consultant, the issue can be revisited and a determination made by the Court; and

   (c)the report should be undertaken by a family consultant.

5. The applicant sought a family report and the father opposed it.  The opposition was on the basis of the fact that there is a dispute as to any relevance that might arise out of such an exercise.  The applicant was very cynical about the father’s approach alleging that the father had an ulterior motive for not wanting to come to Australia. 

6. I have no doubt about the efficacy and usefulness of such an exercise.  The applicant seeks orders for time to occur in Australia between the child and her maternal family albeit the orders may not be that clearly particularised.  Indeed, the applicant pointed to an offer by the trustee of the mother’s estate to fund the trip.  Even that is controversial as the father alleges that it is the child’s money or entitlement that would be so used.  There are currently proceedings in the Supreme Court of Victoria disputing the issues about the estate.

7. The father set out that he would be willing to come to Australia for the child to have time with the “maternal family”.  That dispute relates to the frequency and duration of the time between the child and the maternal grandparents.  There has been a significant time delay already which is supposedly being ameliorated by Skype communication but even the quality and effectiveness of that appears not to satisfy the applicant.

8. In my view, a family report will provide expert advice to the Court about the nature and extent of the child’s relationship with the maternal family.  It will no doubt explore whether Skype strengthens the child’s attachment to that family.  It will presumably assist the Court to determine whether overnight time away from the father is an appropriate order given the child’s age and cognitive development.  The exploration of the child’s understanding and interest in the extended family will also be an important issue given that she has now lost her mother.

9. Section 11A of the Family Law Act 1975 (Cth) (“the Act”) provides:

   The functions of family consultants are to provide services in relation to proceedings under this Act, including:

   (a)assisting and advising people involved in the proceedings; and

   (b)assisting and advising courts, and giving evidence, in relation to the proceedings; and

   (c)helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and

   (d)reporting to the court under sections 55A and 62G; and

   (e)advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.

10. All of those matters will be important if the dispute continues.  Thus a family report is likely to be of assistance to the Court and therefore should be ordered.

11. The second issue related to whether the child and the father should come to Australia particularly where there is an offer to provide financial assistance for that trip from the estate.  Leaving aside the question of where the money would come from and whose money it is, my view is that how and when the report is written is a task to be undertaken by the family consultant.

12. By reference to s 38N(1)(d) of the Act, family consultant’s are officers of the court whose functions and obligations are prescribed by s 11A of the Act as I have described. Any report is effectively evidence which can be challenged both as to its expertise and opinion. The weight to be given to a family report is to be determined by the Court if the report is indeed admitted into evidence. Natural justice would enable all parties to challenge that evidence if they so considered it necessary. Thus, to the extent that the applicant considered that the report was inadequate or inadequately done because of the absence of the father and the child in Australia, that is a matter that can be canvassed at trial.

13. I would not presume therefore to make an order that the family consultant carry out his or her task and would only interfere if the family consultant considered it necessary for court assistance.

14. The third issue related to a dispute between the parties as to whether that exercise should be undertaken by Mr B who was the nominee of the applicant or indeed by a family consultant.  The applicant nominated two professionals well known to the Court and they were both opposed by the respondent.  The absence of agreement creates a problem immediately for that appointment particularly in circumstances where even initially, the applicant would be paying for that professional report.

15. Having regard to the provisions of s 11A to which I have referred, I consider it appropriate that a family consultant be appointed by the Director of Child Dispute Services at the Registry. Having regard to the provisions of s 38 to which I have also referred, the nominated person has responsibility to the Court in that role. For that reason, the orders outlined above are appropriate.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 May 2013.

Associate: 

Date:  23 May 2013