Cassidy and Cassidy - [2011] FMCAfam 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASSIDY & CASSIDY

[2011] FMCAfam 220

FAMILY LAW – Children – parenting – interim orders – preparation of report by Child and Family Psychiatrist – single expert report – source of funds for single expert report.

Family Law Act 1975 (Cth)

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 93-079

Applicant:

MR CASSIDY

First Respondent:

MS CASSIDY

File Number:

SYC 5446 of 2007

Judgment of:

Scarlett FM

Hearing date:

11 March 2011

Date of Last Submission:

11 March 2011

Delivered at:

Sydney

Delivered on:

11 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Campton

Solicitors for the Applicant:

Caldwell Martin & Cox

Counsel for the Respondent:

Ms Kaiti

Solicitors for the Respondent:

CBD Legal

Independent Children’s Lawyer

Ms O’Donnell

Solicitors for Independent

Children’s Lawyer:

Legal Aid NSW

ORDERS

Dr. W, Child and Family Psychiatrist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 and that in preparing his report to the Court, Dr W be requested to consider the following matters:
(a)whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence or parental conflict;
(b)any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c)the relationship between the children and each other and with each of their parents and any other relevant person;
(d)the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;
(e)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(f)the capacity of each parent or any other person to provide for the needs of the children, including their emotional and intellectual needs;;
(g)the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents (or any other relevant person);
(h)the effect on the children of any family violence or parental conflict to which they may have been exposed;
(i)the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parents’ current and future capacity to:
·implement such an arrangement, and
·communicate with each other and resolve difficulties that might arise;
(j)the mental state of both of the parents in so far as it relates to parenting issues, including but not limited to whether either or both parents are assessed as having a mental illness or disorder;
(k)the mental health/special needs of the children; and
(l)any other matter the Court Expert considers relevant, including but not limited to any likely effect on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cassidy and Cassidy

Details

AGLC: Cassidy and Cassidy [2011] FMCAfam 220
Case: [2011] FMCAfam 220
Decision Date: 11 March 2011

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Cassidy and Cassidy was heard. The dispute involved the parents of three minor children, focusing on the welfare and care of the children, including their living arrangements. The court was tasked with determining the most suitable living arrangements for the children, considering various factors that would impact their well-being.

The primary legal issues before the court included assessing the potential risks of harm to the children, understanding the children's views and the weight to be given to those views, examining the relationships between the children and their parents, and evaluating the capacity of each parent to meet the children's needs. Additionally, the court needed to consider the impact of any family violence, parental conflict, or changes in the children's circumstances on their welfare.

The court appointed Dr. W, a Child and Family Psychiatrist, as a Single Expert Witness to provide a comprehensive report on the welfare of the children. The report was to cover various aspects such as the risk of harm, the children's views, their relationships with their parents, and the mental health of the parents and children. The court directed that both parents contribute equally to the fees of Dr. W. It also ordered that each party provide a specific sum of money to be held in trust for the payment of Dr. W's fees and granted leave to the Independent Children's Lawyer to access and provide relevant materials to Dr. W. The court's orders aimed to ensure that the children's welfare was thoroughly assessed and that any decisions made would be in their best interests.

Orders

Orders of the court

Dr. W, Child and Family Psychiatrist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 and that in preparing his report to the Court, Dr W be requested to consider the following matters:

(a) whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence or parental conflict;

(b) any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

(d) the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

(e) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

(f) the capacity of each parent or any other person to provide for the needs of the children, including their emotional and intellectual needs;;

(g) the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents (or any other relevant person);

(h) the effect on the children of any family violence or parental conflict to which they may have been exposed;

(i) the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parents’ current and future capacity to:

· implement such an arrangement, and

· communicate with each other and resolve difficulties that might arise;

(j) the mental state of both of the parents in so far as it relates to parenting issues, including but not limited to whether either or both parents are assessed as having a mental illness or disorder;

(k) the mental health/special needs of the children; and

(l) any other matter the Court Expert considers relevant, including but not limited to any likely effect on the children of the Court making orders in terms of the father’s current application that the children live predominantly with the father and spend time with the mother.

That the parties each pay one half of the fees payable to Dr W for the preparation of his Report.

Each party shall by close of business 14 March 2011 irrevocably authorise and direct in writing their respective solicitors to authorise Caldwell Martin Cox Solicitors of Suite 3, Level 1, 320 Camden Valley Way Narellan NSW to hold in trust the sum of $12,000.00 from the parties’ respective shares of the proceeds of any past and future sale of the property of the marriage for the purpose of payment of the fees to DR W for the preparation of his expert report, such payment to occur within 7 days of the date of receipt of DR W’ invoice by each party.

Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing same to Dr W and that the fees in respect of that photocopying be waived.

Leave be granted to the Independent Children’s lawyer to provide copies of all three Family Reports prepared in this matter to Dr W.

The Applicant is to pay the setting-down fee prescribed by the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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