Darley & Darley - [2022] FedCFamC1F 566

Federal Circuit and
Family Court of Australia (DIVISION 1)
Darley & Darley [2022] FedCFamC1F 566

File number(s): BRC 2317 of 2013

Judgment of: HOGAN J

Date of judgment: 5 August 2022

Catchwords: FAMILY LAW – PARENTING – Preparation of a Child Impact Report.

Legislation: Family Law Act 1975 (Cth)

Division: First Instance

Number of paragraphs: 17

Date of hearing: 5 August 2022

Place: Brisbane

Applicant: Litigant in person

Respondent: Litigant in person
ORDERS

BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DARLEY

Applicant

AND:
MS DARLEY

Respondent

order made by:

HOGAN J

DATE OF ORDER:

5 AUGUST 2022

IT IS ORDERED THAT:
1.The matter is listed for hearing for two (2) days before Justice Hogan commencing at 10.00 am on 14 September 2022, at the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2.All parties attend the hearing in person.

AND IT IS FURTHER ORDERED THAT
3.Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties and children (Y, born 2009 and X, born 2006) attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report.
4.For the purpose of Order 3 and pursuant to s 62G(5) of the Act:
(a)the first appointment shall occur by video using Microsoft Teams on 31 August 2022 and:
(i)the Applicant will attend at 9.00 am; and
(ii)the Respondent will attend at 10.30 am.

(b)the second appointment shall occur in person at the Brisbane Registry at Level 3, Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, Brisbane on 1 September 2022 at such time and in such manner as advised by the Court Child Expert in writing.

5.Pursuant to s 62G(5) of the Act, each party will do all things necessary to ensure the children attend upon the Court Child Expert at the time and place and in the manner advised by the Court Child Expert in writing.
6.Pursuant to s 62G(5) of the Act, the parties shall attend at any other times, dates and places as the Court Child Expert may advise in writing and shall ensure, if advised, that the children attend also.
7.Not later than 4.00 pm on 26 August 2022, the parties provide to … their contact telephone/numbers and email addresses that they are prepared to have used for the purpose of communication for the purpose of the report.
8.The Court Child Expert shall provide a written report to the Court, which report shall address the following matters:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views; and
(b)the impact of the issues in dispute before the Court on the children; and
(c)the issues of domestic violence and its impacts upon the children and the parents; and
(d)any other…

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 Darley & Darley

Details

AGLC: Darley & Darley [2022] FedCFamC1F 566
Case: [2022] FedCFamC1F 566
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Darley & Darley involved a dispute between the parents over parenting arrangements. The legal issues before the court were whether it was appropriate to appoint a Child Court Expert to prepare a Child Impact Report and to gather the children's views, considering the specific circumstances of the case, including allegations of domestic violence and the children's living arrangements. The court was required to decide whether such a report would be beneficial to understanding the children's welfare and best interests.

Justice Hogan, after considering the arguments presented by both parties, determined that it was in the children's best interests to have a Child Court Expert prepare a Child Impact Report. This decision was based on the children's ages, the fact that they had not had any interaction with each other for some time, and the importance of considering their views as required by law. Despite the mother's objections regarding the expertise of Child Court Experts in assessing domestic violence and the specific needs of one of the children, the court concluded that a report would provide valuable insights into the children's perspectives and the overall impact of the dispute on them.

The court ordered that the parties and the children attend interviews with a Child Court Expert on specified dates and that the expert prepare a written report addressing various matters, including the children's views, the impact of the dispute on them, and issues of domestic violence. The report was to be submitted to the court and later provided to the parties, with strict confidentiality measures in place. Additionally, the court outlined a detailed schedule for the preparation of the report, the submission of further affidavit material, and the hearing of the matter.

In summary, the court ruled in favor of appointing a Child Court Expert to prepare a Child Impact Report, emphasizing the importance of considering the children's views in the context of their welfare and best interests. The detailed orders ensure that the process is conducted in a manner that respects the confidentiality of the report and the children's privacy while providing the court with the necessary information to make informed decisions.

Orders