Colt and Kerry

[2008] FamCA 15

FAMILY COURT OF AUSTRALIA

COLT & KERRY [2008] FamCA 15

FAMILY LAW – CHILDREN – Independent Children’s Lawyer seeking leave to provide copies of court documents to Qld Department of Child Safety – Leave granted

APPLICANT: MS COLT

RESPONDENT: MR KERRY

FILE NUMBER: BRF 5242 of 1997

DATE DELIVERED: 18 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 18 January 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cutler, Solicitor, R J Cutler Solicitor appeared for the Applicant Mother

SOLICITOR FOR THE RESPONDENT: Mr Davies, Solicitor, John Davies & Co, appearing by telephone for the Respondent Father

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Debenham, Solicitor appeared for the Independent Children’s Lawyer

Orders

1. That leave of the Family Court of Australia is hereby granted to the Independent Children’s Lawyer, Doris Chan of Legal Aid Queensland to publish to the Department of Child Safety copies of the following documents filed in this Honourable Court:

a)Family Report of Ms M dated 8/6/1999

b)Family Report of Ms M dated 14/1/2000

c)Affidavit of Mr G filed 5/12/2006

d)Affidavit of Dr L annexing his Psychiatric Assessment filed 5/3/2007

e)Affidavit of Doris Chan annexing addendum of Dr L filed 3/4/2007

f)Affidavit of Dr L filed 21/6/1999.

1. That leave of the Family Court of Australia is hereby granted to the Independent Children’s Lawyer, Doris Chan of Legal Aid Queensland to file in the Children’s Court proceedings at Toowoomba, as between the Department of Child Safety as the Applicants and the Respondent parents, copies of the following documents filed in this Honourable Court:

a)Family Report of Ms M dated 8/6/1999

b)Family Report of Ms M dated 14/1/2000

c)Affidavit of Mr G filed 5/12/2006

d)Affidavit of Dr L annexing his Psychiatric Assessment filed 5/3/2007

e)Affidavit of Doris Chan annexing addendum of Dr L filed 3/4/2007

f)Affidavit of Dr L filed 21/6/1999.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Barry delivered this day will for all publication and reporting purposes be known as Colt & Kerry.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF5242 of 1997

MS COOK

Applicant

And

MR KERRY

Respondent

REASONS FOR JUDGMENT

1. I propose to rule that under section 129A the probability is that Ms Chan does not need the Court’s permission to provide these reports to whoever the legal representative is for the Department of Child Safety as section 121, which prohibits publication or identification of parties and publication of proceedings, says they do not apply “to the communication to persons concerned in proceedings in any Court of any pleading, transcript of evidence or other document for use in connection with those proceedings”.

2. Now, if I be wrong in that to my mind the argument is that the Children’s Court should be apprised of any evidence which it may consider to be relevant.  It may be because of the effluxion of time that these reports are considered to be out of date, it may be that they are in conflict with more recent reports, but that is a matter for the Judicial officer in the Children’s Court to be free to determine.  He/she should not be constrained by the terms of section 121.  As I have indicated, if the reports were favourable to the father he would be in a position to utilise those documents.  If they are unfavourable I fail to see why the Department of Child Safety should not be at liberty to at least present that evidence to the Court.

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

   I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

   Associate: 

Date:  18 January 2008