GAINES & GAINES - [2013] FMCAfam 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAINES & GAINES

[2013] FMCAfam108

FAMILY LAW – Application to set aside family report – alleged bias and interference with preparation of family report – family report set aside.

Family Law Act 1975 (Cth) s.62G(2)

Hall & Hall (1979) FLC 90-713
Friscioni & Friscioni [2010] FamCAFC 108
Hannigan & Sorraw [2010] FamCAFC 257

Applicant:

MR GAINES

Respondent:

MS GAINES

File Number:

DGC 444 of 2011

Judgment of:

O’Sullivan FM

Hearing date:

7 & 8 February 2013

Date of Last Submission:

8 February 2013

Delivered at:

Dandenong

Delivered on:

8 February 2013

REPRESENTATION

Counsel on behalf of the Applicant:

Mr Lovering

Solicitors on behalf of the Applicant:

Chris Woods & Associates

Counsel on behalf of the Respondent:

Mr Meier

Solicitors on behalf of the Respondent:

Meier Denison Guymer

Counsel on behalf of the Independent Children’s Lawyer:

Ms Gordon

Solicitor on behalf of the Independent Children’s Lawyer:

Reale Lawyers

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The appointment of Dr X as a Reg 7, Family Consultant in this matter be discharged.
That both of Dr X’s family reports dated 15 June 2012 and14 January 2013 be sealed but remain on the court file and not be disclosed without further order.
That the transcript of Dr X’s evidence and Mrs X’s evidence be provided to the Director of Child Dispute Services for such action as is appropriate in light of the material in the transcript.
The child, [X] born [in] 1999 (“[X]”) live with the Respondent wife.
The Respondent wife forthwith enrol the child, [X] in school and ensure her attendance at school.
The parties shall not encourage or facilitate any party, including any of the children, from discussing these proceedings with the children or any of them including discussing where the children will live in the future.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services in the Dandenong Registry of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released as soon as possible before the adjourned date, and that:
(a)The Family Report to deal with the following matters:
(i)any wishes expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
(b)The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.
(c)The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to…

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 GAINES & GAINES

Details

AGLC: GAINES & GAINES [2013] FMCAfam 108
Case: [2013] FMCAfam 108
Decision Date: 8 February 2013

CaseChat Overview and Summary

In the matter of Gaines & Gaines, the court was presented with an application to set aside a family report due to allegations of bias and interference in its preparation. The case involved the welfare of a child born in 1999, whose parents were embroiled in a contentious dispute over parenting arrangements and other related issues. The Family Court of Australia was tasked with addressing the application and determining the appropriate course of action.

The primary legal issues before the court were whether there was sufficient evidence of bias and interference in the preparation of the family report to warrant its setting aside and what alternative measures should be taken to ensure the welfare and best interests of the child. The court had to evaluate the credibility of the allegations and consider the implications for the ongoing proceedings and the welfare of the child.

After examining the evidence and submissions presented, the court found that the allegations of bias and interference were substantiated. Consequently, the appointment of the family consultant, Dr H, was discharged, and both of Dr H’s family reports were sealed but remained on the court file. The court also ordered that the transcript of Dr H’s evidence and the evidence of Mrs H be provided to the Director of Child Dispute Services for further action. Furthermore, the child was to live with the respondent wife, who was directed to enroll the child in school and ensure regular attendance. The court emphasized the importance of protecting the children from discussions about the proceedings and future living arrangements.

The final orders included the appointment of a new family consultant to prepare a new report focusing on the child's wishes and other relevant factors, with specific instructions on the content and timeline for the report. The matter was adjourned for a final hearing, and detailed procedural directives were issued to ensure compliance with court processes, including deadlines for filing documents, payment of fees, and preparation of case outlines. Non-compliance with these orders could result in severe consequences, such as the proceedings being struck out or the trial date being vacated.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The appointment of Dr H as a Reg 7, Family Consultant in this matter be discharged.

2. That both of Dr H’s family reports dated 15 June 2012 and14 January 2013 be sealed but remain on the court file and not be disclosed without further order.

3. That the transcript of Dr H’s evidence and Mrs H’s evidence be provided to the Director of Child Dispute Services for such action as is appropriate in light of the material in the transcript.

4. The child, [X] born [in] 1999 (“[X]”) live with the Respondent wife.

5. The Respondent wife forthwith enrol the child, [X] in school and ensure her attendance at school.

6. The parties shall not encourage or facilitate any party, including any of the children, from discussing these proceedings with the children or any of them including discussing where the children will live in the future.

7. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services in the Dandenong Registry of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released as soon as possible before the adjourned date, and that:

(a) The Family Report to deal with the following matters:

(i) any wishes expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(ii) the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and

(iii) any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

(b) The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.

(c) The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer (if applicable) in this matter.

(d) The solicitor for each of the parties (or, if unrepresented, then the party themselves) do deliver or cause to be delivered to the family consultant copies of the following documents:

(i) all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;

(ii) all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and

(iii) any intervention or restraining orders currently in force.

8. The family consultant be at liberty to inspect all subpoenaed material in these proceedings if required.

9. The matter be adjourned to 24 June 2013 at 10:00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Magistrates Court of Australia at Dandenong.

10. The applicant shall file and serve any amended application and/or any further affidavit material upon which he seeks to rely upon at final hearing by not later than 28 days prior to the trial.

11. The respondent shall file and serve any amended response and/or any further affidavit material upon which she seeks to rely upon at final hearing by not later than 14 days prior to the trial.

12. The Independent Children’s Lawyer do file and serve all further affidavits and other material to be relied upon by them not later than 7 days prior to the trial.

13. All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(c) a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60cc factors);

(d) a list of other contentions relevant to the decision;

(e) whether the presumption of equal shared parental responsibility applies (s.61da), and if not the contentions relied upon;

(f) a list of the considerations relevant to considerations of equal and substantial parenting time (s.65daa);

(g) a list of other relevant considerations (including the relevant section number, eg ss.60cg, 61f, 65dab, 65dac, etc); and

(h) the actual orders sought.

14. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.

AND THE COURT NOTES THAT:

15. In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a) the filing of documents;

(b) the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

16. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.

IT IS NOTED that publication of this judgment under the pseudonym Gaines & Gaines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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