CREIGHTON & FILIPPO

[2014] FamCA 136

FAMILY COURT OF AUSTRALIA

CREIGHTON & FILIPPO [2014] FamCA 136

FAMILY LAW – PRACTICE AND PROCEDURE – Application for different parenting expert to be appointed just before trial because appointed counsellor had been doing reportable therapy and had not been asked to make recommendations but she had done so - Application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Creighton

RESPONDENT: Mr Filippo

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4087 of 2008

DATE DELIVERED: 17 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Weiner

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Ms Agresta

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER            Ms Elleray

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER            Septimus Jones & Lee

Orders

1. That the application in a case of the mother filed 12 February 2014 is dismissed.

2. That the reasons be transcribed and be made available to all parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Creighton & Filippo 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 4087 of 2008

Ms Creighton

Applicant

And

Mr Filippo

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case that was filed by the mother, who is the respondent in the substantive proceedings, on 12 February 2014.  It effectively seeks an order that a family consultant be appointed to prepare and submit a report in relation to the parties.  It is common ground that this case has been extant since 2008, and this is another application where the parties need the court to intervene to resolve. 

2. The reason why the application has been brought is that Dr J, who seems to be the person with whom the parties have had most dealings of late, was appointed under an order that required her to undertake therapeutic counselling but, perhaps unusually, on a reportable basis.  The complaint by the mother is that the report is flawed because it simply makes recommendations without dealing with all of the other matters that would “normally be dealt with in a family report”.

3. Those matters are procedural matters that could be easily resolved by a number of different ways.  One of those ways could have been for the practitioner, or indeed the litigant, to contact Dr J and ask a series of questions about what was not covered in the report.  Another is to put evidence to the expert in the witness box and cross-examine about it.  All of those matters are matters that could very easily resolve the problem.  It troubles me that there is a suggestion that we could just get another family report, and people are suggested in the affidavit of the mother who are apparently available. 

4. The flaw in the mother’s logic is that it requires the children to then meet another person.  In my view, this is not a case that should be delayed any longer.  To the extent that the evidence is missing, the court will do the best it can, but there is an Independent Children’s Lawyer and to the extent that there are some concerns on her part, those matters can be put to the expert in the witness box, if not before. 

5. If parties are concerned about it, I suggest that the practitioners have a telephone hook up with Dr J beforehand to canvas any issues that are, in anybody’s view, missing.  The application, therefore, must fail and it is dismissed.  The application of 12 February 2014 in a case is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on17 February 2014.

Associate: 

Date:  14 March 2014