Every and McNaught - [2007] FamCA 626

FAMILY COURT OF AUSTRALIA

EVERY & MCNAUGHT

[2007] FamCA 626

FAMILY LAW – CHILDREN - Application of independent children’s lawyer for psychiatric assessments of the mother and the father – Father does not consent to assessment – No jurisdiction to order assessment of father.

Family Law Act 1975

L & T (1999) FLC 92-875
AMS v AIF [1999] HCA 26; (1999) FLC 92-852

APPLICANT:

Mr Every

RESPONDENT:

Ms McNaught

INDEPENDENT CHILDREN’S LAWYER:

Hale & Wakeling

FILE NUMBER:

MLF

2242

2006

DATE DELIVERED:

14 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

McDonald Slater & Lay

THE RESPONDENT:

No Appearance

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr A. Hale

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Hale & Wakeling

Orders

That the independent children’s lawyer:-
(a)
forward a copy of the reports of Ms T dated 24 May 2007 and

1 December 2006 to the Department of Human Services;
(b)forward to the mother forthwith a copy of the report of Ms T dated 24 May 2007;
(c)forward to the Department of Human Services a copy of my reasons for decision when those reasons become available.
That by way of compliance by the mother with paragraph 4 of the consent orders made 2 March 2007, the mother undergo supervised urine testing on the first and third Monday of each calendar month commencing 18 June 2007 and provide the results of such tests to the independent children’s lawyer without delay.

IT IS FURTHER ORDERED BY CONSENT OF THE MOTHER AND NOT OPPOSED BY THE FATHER:-

That the mother undertake a psychiatric assessment by a psychiatrist nominated by the independent children’s lawyer, and that the mother bear the cost of such assessment and that Victoria Legal Aid be requested to provide funding for such a report.
That the mother and father enrol in and complete a Parenting Program at an agency nominated by the independent children’s lawyer and provide a certificate of completion of same to the other party and the independent children’s lawyer.

IT IS FURTHER ORDERED, BY CONSENT, AND UNTIL FURTHER ORDER:-

That the mother keep the father informed by telephone of any serious medical or other welfare issues affecting the children C born … June 2002 and B born … September 2003.
That the father be permitted to spend time and communicate with the said children by way of:
(a) letters, cars and gifts;
(b) by telephone each Wednesday between 6pm and 6:30pm.
That the parties keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attends to discuss the children’s medical condition with, and forward copies of any reports and the like to, the other, and shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s.
That the parties are hereby restrained from:
(a)denigrating the other in the presence or hearing of the…

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 Every and McNaught

Details

AGLC: Every and McNaught [2007] FamCA 626
Case: [2007] FamCA 626
Decision Date: 14 June 2007

CaseChat Overview and Summary

In the matter of *Every and McNaught*, Bennett J of the Family Court of Australia made orders concerning the welfare of two children, C and B. The proceedings involved the mother and father of the children, with an independent children’s lawyer appointed to represent the children's interests. The dispute centred on parenting arrangements and the conduct of the parties in relation to the children.

The court was required to determine various issues concerning the children's care and the obligations of the parents. These included the mother's compliance with previous consent orders regarding drug testing, the need for a psychiatric assessment of the mother, and the participation of both parents in a parenting program. The court also addressed ongoing communication and contact arrangements between the father and the children, as well as the exchange of medical information and the conduct of the parties in the children's presence.

Bennett J's reasoning, as reflected in the orders, focused on ensuring the children's welfare and facilitating appropriate parental engagement. The orders mandated supervised urine testing for the mother, a psychiatric assessment, and completion of a parenting program, with costs to be borne by the mother and funding sought from Victoria Legal Aid. The father was permitted specific contact by letter, card, gift, and telephone. Both parents were ordered to keep each other informed of the children's medical and welfare issues, to authorise the release of medical records, and to refrain from denigrating each other or discussing the proceedings in the children's presence. The court also directed the independent children's lawyer to forward relevant reports to the Department of Human Services and the mother, and to provide a copy of the reasons for decision to the parties and the Department. The orders incorporated details regarding obligations, consequences of contravention, and available assistance, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

That the independent children’s lawyer:-

(a)

forward a copy of the reports of Ms T dated 24 May 2007 and

1 December 2006 to the Department of Human Services;

(b) forward to the mother forthwith a copy of the report of Ms T dated 24 May 2007;

That by way of compliance by the mother with paragraph 4 of the consent orders made 2 March 2007, the mother undergo supervised urine testing on the first and third Monday of each calendar month commencing 18 June 2007 and provide the results of such tests to the independent children’s lawyer without delay.

IT IS FURTHER ORDERED BY CONSENT OF THE MOTHER AND NOT OPPOSED BY THE FATHER:-

That the mother undertake a psychiatric assessment by a psychiatrist nominated by the independent children’s lawyer, and that the mother bear the cost of such assessment and that Victoria Legal Aid be requested to provide funding for such a report.

That the mother and father enrol in and complete a Parenting Program at an agency nominated by the independent children’s lawyer and provide a certificate of completion of same to the other party and the independent children’s lawyer.

IT IS FURTHER ORDERED, BY CONSENT, AND UNTIL FURTHER ORDER:-

That the mother keep the father informed by telephone of any serious medical or other welfare issues affecting the children C born … June 2002 and B born … September 2003.

That the father be permitted to spend time and communicate with the said children by way of:

(a) letters, cars and gifts;

(b) by telephone each Wednesday between 6pm and 6:30pm.

That the parties keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attends to discuss the children’s medical condition with, and forward copies of any reports and the like to, the other, and shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s.

That the parties are hereby restrained from:

(a) denigrating the other in the presence or hearing of the children;

(b) discussing the allegations in these proceedings in the presence or hearing of the children.

That the parties provide to the other party and the independent children’s lawyer the names and contact details of al medical and health professionals upon whom they have attended in the last two years, and authorise and direct those professionals to release their medical records to the other party and the independent children’s lawyer.

10.

That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

11.

That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties including the independent children’s lawyer and to the proper officer of the Department of Human Services.

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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