C and N

[2007] FMCAfam 925

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & N [2007] FMCAfam 925

FAMILY LAW – Procedural – admissibility of Expert’s Report – whether Evidence Act must be used to exclude Expert’s Report in Division 12A proceedings – whether principles in Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 ought to be applied.

Family Law Act 1975, ss.69ZN, 69ZQ, 69ZT, 69ZX
Evidence Act 1995 (Cth)

Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305
R v Turner [1975] QB 834
Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
South Western Sydney Area Health Service v Edmonds (2007) NSWCA 16
Suttie & Suttie [2007] FMCAfam 175

Applicant: C

Respondent: N

File number: SYC 1139 of 2007

Judgment of: Altobelli FM

Hearing date: 6 July 2007

Date of last submission: 6 July 2007

Delivered at: Sydney

Published on: 14 November 2007

REPRESENTATION

Counsel for the Applicant: Mr Batey

Solicitors for the Applicant: McGillivray Solicitors

Counsel for the Respondent: Mr Cook

Solicitors for the Respondent: M G O’Callaghan & Associates

Counsel for the Independent Children’s Lawyer: Mr Ladopoulos

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission of NSW

ORDERS

1. The Application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1139/2007

C

Applicant

And

N

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons relate to a ruling I made on 6 July 2007 in relation to an application made by counsel for the applicant father. The application is commonly known as a Makita application, referring to the authority on which it is based – Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The application was directed at a report prepared pursuant to the Federal Magistrates Court Rules dated 26 June 2007 by Dr Rikard-Bell, a Child, Adult and Family Psychiatrist. The substance of the application is that the report should be excluded from the evidence.

Background

1. The substantive proceedings relate to parenting orders for the children K (15), M (13) and A (8). The applicant father and respondent mother commenced cohabitation in 1989, married in 1990 and separated in 2002. There are orders relating to the children made by consent in the Family Court at Parramatta on 18 December 2002 that provide for the three children to live with their mother four days per week, and their father three days per week. Notwithstanding those orders, K has lived with his father since February 2005, M with her father since 2006, and A remains with her mother.

2. There is a high level of conflict between the parents. The father raises issues about the mother’s capacity to care for the children whilst they are in her care. The mother raises issues about whether the father is seeking to alienate the children from her.

3. The matter is part heard before me. On 6 July 2007 the evidence of the court appointed expert, Dr Rikard-Bell, was dealt with. It is possible that he will need to be recalled at a later time. The hearing continues before me…