Eastley & Eastley

[2020] FamCA 972

FAMILY COURT OF AUSTRALIA

Eastley & Eastley [2020] FamCA 972  

File number(s):	CAC 1729 of 2020
Judgment of:	GILL J
Date of judgment:	19 November 2020
Catchwords:	FAMILY LAW – CHILDREN – mechanisms for expert to observe children with each party if they determine it appropriate.
Number of paragraphs:	6
Date of hearing:	19 November 2020
Place:	Canberra
Counsel for the Applicant:	Ms M Davis
Solicitor for the Applicant:	Alliance Legal Services
Solicitor for the Respondent:	Dobinson Davy Clifford Simpson
Solicitor for the Independent Children's Lawyer:	Legal Aid, ACT

ORDERS

CAC 1729 of 2020

BETWEEN:

MR EASTLEY

Applicant

AND:

MS EASTLEY

Respondent

LEGAL AID ACT

Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	19 NOVEMBER 2020

THE COURT ORDERS THAT:

1.I amend Terms of Reference 3. of the Orders of 15 September 2020, as follows:

(a)Insert paragraph 3.c.A: 

“The children, X and Y, with either parent, as determined appropriate by the Expert.”

(b)Insert paragraph 3A:

“The Expert is at liberty to direct the parents as to their attendances and the attendances of the children for the purpose of any observations, and the parents are to comply with such directions given by the Expert.”

(c)Insert paragraph 3B:

“In the event that observations are taking place and the Expert forms the view that such observations ought not be continued, then the Expert is at liberty to direct the parents so and the parents are obliged to comply with such directions.”

The Mother is to file submissions should she choose to make any on the question of whether or not the Opinion Rule should be applied to these proceedings by 4 pm on 25 November 2020, and should the Father wish to rely upon further submissions on that point he is to file and serve written submissions by 4 pm on Thursday, 26 November 2020.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J:

1. In this matter the Father has sought particular orders in respect of the Expert observing X and Y with him, unless the Expert was to consider that that step should not take place.  At present the Terms of Reference, as set out in the Orders of 15 September 2020, do not make specific provision for the Expert to observe X and Y with either parent or the mechanisms should the Expert determine that such a step is appropriate. 

2. The evidence in this case raises a real question as to whether or not such a step should take place.  There are implications for the determination of the matter which flow from no observation taking place.  There are also implications that flow from an observation taking place in the nature of the particular allegations that are made.

3. The Expert has been appointed due to the Expert's particular expertise to deal with this particular matter including, it would seem, the Expert’s ability to offer that expertise in the mechanisms of the preparation of the report.

4. Under those circumstances it seems appropriate to equip the Expert such that, should the Expert consider that it is appropriate that observation sessions take place between the Father, X and Y or the Mother, X and Y that the Expert be able to direct arrangements for such to take place or for such to be terminated, but that there should be no particular predetermination as to whether or not such a step is appropriate. 

5. Accordingly, I amend Terms of Reference 3. of the Orders of 15 September 2020, as follows:

   (a)Insert paragraph 3.c.A: 

   “The children, X and Y, with either parent, as determined appropriate by the Expert.”

   (b)Insert paragraph 3A:

   “The Expert is at liberty to direct the parents as to their attendances and the attendances of the children for the purpose of any observations, and the parents are to comply with such directions given by the Expert.”

   (c)Insert paragraph 3B:

   “In the event that observations are taking place and the Expert forms the view that such observations ought not be continued, then the Expert is at liberty to direct the parents so and the parents are obliged to comply with such directions.”

6. The Mother is to file submissions should she choose to make any on the question of whether or not the Opinion Rule should be applied to these proceedings by 4 pm on 25 November 2020, and should the Father wish to rely upon further submissions on that point he is to file and serve written submissions by 4 pm on Thursday, 26 November 2020.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       19 November 2020