French and Gilbey

[2017] FamCA 790

FAMILY COURT OF AUSTRALIA

FRENCH & GILBEY [2017] FamCA 790

FAMILY LAW – CHILDREN – s 69ZT consideration.

Family Law Act 1975 (Cth)

APPLICANT: Mr French

RESPONDENT: Ms Gilbey

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3876 of 2016

DATE DELIVERED: 2 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Indovino

SOLICITOR FOR THE APPLICANT: Trapski Family Law

SOLICITOR FOR THE RESPONDENT Mr Finn

SOLICITORS FOR THE RESPONDENT: Clark Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on … November 2017 subject to any part heard case as a three day case.

2. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

3. By 4 pm on 1 November 2017 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

4. The applicant pay all required court fees by 4 pm on 1 November 2017.

5. By 4 pm on 15 November 2017 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

6. By 4 pm on 20 November 2017 the applicant file and serve any affidavit in reply.

7. By 4 pm on 20 November 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

8. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

   FAMILY REPORT

9. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of a family consultant nominated by the Director of Child Dispute Services for the purposes of the preparation of a family report not to be commenced until after 25 October 2017 but to be completed and released by 9 November 2017.

10. The appointed single expert/family consultant:

    (a)may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings;

    (b)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

    (c)may have access to any documents produced under subpoenae that have been released for inspection;

    (d)should consider the factors in s 60CC of the Family Law Act 1975 so far as the consultant considers them relevant and specifically address the issues of;

    i.parental capacity to care for the child;

    ii.parental responsibility in respect of the children; and

    iii.the impact on the children of separation from either parent for any specific periods of time;

    and

    (e)should advise the Court generally about matters of child welfare and development.

    SUBPOENAE

11. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

12. By 4 pm on 20 November 2017 all parties file electronically to  a case outline in one document setting out:

    (a)     the outline of the issues in dispute;

    (b)     the list of the affidavits to be read;

    (c)     a concise set of orders to be sought; and

    (d)     the list of objections to evidence requiring a ruling;

13. Pursuant to s 69ZT of the Family Law Act 1975 (Cth), the evidence of the parties shall comply with the rules of evidence.

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

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 French & Gilbey 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 MELBOURNE

FILE NUMBER: MLC 3876  of 2016

Mr French

Applicant

And

Ms Gilbey

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a parenting dispute in which serious allegations are made each against the other as to capacity and responsibility relating to parenting of the parties’ child.  The orders sought by the mother would have a significant impact upon any future relationship between the father and the child.  In addition, there are significant disputes between both parties here over the question of family violence.  They have an impact upon the question of the presumption as to parental responsibility in a case in which parents seek entirely different orders.  This is not the usual sort of dispute this court sees and as residence is very much an issue, my view is that the circumstances are exceptional such as to justify an insistence that the rules of evidence should apply.

I certify that the preceding One (1) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 October 2017.

Associate: 

Date:  2 October 2017