Duclos and Duclos - [2018] FamCA 1088

FAMILY COURT OF AUSTRALIA

DUCLOS & DUCLOS

[2018] FamCA 1088

FAMILY LAW – CHILDREN – Where the husband has taken objection to the whole of the family report based upon s 131(1)(a) of the Evidence Act 1995 (Cth) – Where part of one sentence is excluded based upon that objection – Where an application is made by the husband for the disqualification of the family report writer on the grounds of actual and/or apprehended bias – Where there is no actual or apprehended bias and the balance of the husband’s application is otherwise dismissed.

Evidence Act 1995 (Cth) ss 131, 134
Family Law Act 1975 (Cth) s 114

Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644
Kernot & Matson [2008] FamCA 756
R and R [2003] FamCA 1180
Smits and Another v Roach and Others (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT:

Mr Duclos

RESPONDENT:

Ms Duclos

FILE NUMBER:

SYC

415

2015

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge, SC

SOLICITOR FOR THE APPLICANT:

Sexton Family Law

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders

The words “but that they had not been able to agree about school fees” in [23] of the Family Report by Ms L dated 20 November 2018, be struck out.
The husband’s Application in a Case filed 4 December 2018 and oral applications made by the husband on 5 December 2018 be otherwise dismissed.
This matter be relisted for mention on 30 January 2019 at 9.15am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duclos & Duclos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 415 of 2015

Mr Duclos

Applicant

And

Ms Duclos

Respondent

REASONS FOR JUDGMENT

On 4 December 2018, the husband filed an Application in a Case which sought that the matter be listed on an urgent basis before myself at the procedural event that was scheduled for the following day. The purpose of that event was to again attempt to set the matter down for a final hearing.
The principal order sought by the husband in the Application in a Case was:
1. That pursuant to Section 131(1)(a) of the Evidence Act 1995 the parties be restrained from adducing in evidence and relying upon the Family Report by [Ms L] dated 20 November 2018 (“the Family Report”).
The husband also…

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 Duclos and Duclos

Details

AGLC: Duclos and Duclos [2018] FamCA 1088
Case: [2018] FamCA 1088
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the matter of *Duclos and Duclos*, heard by Watts J, the dispute concerned an application by the husband to vary an existing parenting order. The wife sought to strike out certain words from a Family Report, arguing they were irrelevant and prejudicial to her case. The husband's application sought to vary the parenting orders, and the wife opposed this application.

The primary legal issue before the court was whether the specific words within the Family Report, referring to the parties' inability to agree on school fees, were relevant to the determination of the parenting orders. The court was required to consider the admissibility and relevance of this information in the context of parenting proceedings.

Watts J reasoned that the inability of the parties to agree on school fees was not a relevant consideration for the court when determining the best interests of the child under the *Family Law Act 1975* (Cth). The court held that such a statement was likely to be prejudicial and did not assist in assessing the child's welfare. Consequently, the court ordered that the offending words be struck out of the Family Report. The husband's application was otherwise dismissed, and the matter was relisted for mention.

Orders

Orders of the court

The words “but that they had not been able to agree about school fees” in [23] of the Family Report by Ms L dated 20 November 2018, be struck out.

The husband’s Application in a Case filed 4 December 2018 and oral applications made by the husband on 5 December 2018 be otherwise dismissed.

This matter be relisted for mention on 30 January 2019 at 9.15am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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