Kettle and Baker (No 2) - [2010] FamCA 1164

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER (NO. 2)

[2010] FamCA 1164

FAMILY LAW – CHILDREN – Which expert should prepare a report – Application to disqualify judge dismissed

Family Law Act 1975 (Cth)

Knibbs & Knibbs [2009] FamCA 840

APPLICANT:

Mr Kettle

RESPONDENT:

Ms Baker

INDEPENDENT CHILDREN’S LAWYER:

Ms Berck

FILE NUMBER:

BRC

6532

2009

DATE DELIVERED:

8 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

8 December 2010

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Ellis of Burchill & Horsey Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Berck of Berck & Associates

Orders

IT IS ORDERED THAT

Mr B is permitted to act today as a silent McKenzie Friend for the father.
Paragraphs 3 and 8 of the Application in a Case filed on 25 November 2010 are each dismissed.
Paragraphs 2, 4, 5, 6 and 7 of the Application in a Case filed on 25 November 2010 are each struck out.
The matter is set down for a five day final hearing commencing at 10.00am on … July 2011 in the Brisbane Registry of the Family Court of Australia.
The matter is adjourned to the Magellan Registrar at 12.00 noon on … March 2011 for the making of all such directions as might be necessary to prepare the matter for final hearing in July 2011.
The matter is further adjourned for a directions hearing to be listed before the trial judge, in the week commencing 16 May 2011 at a time and on a date to be advised, for the purpose of considering all matters relevant to the conduct of the final hearing.
Leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy documents produced pursuant to subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.
AND IT IS NOTED THAT Mr B or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, is not permitted to assist the father with inspecting subpoena documents or acting as his agent to do so.
The costs of today be reserved.

IT IS FURTHER ORDERED THAT

A psychiatric report be prepared for the Court by Dr G, and for the purpose of completing the report:
a.The report writer has permission to inspect the Court file and all documents/documents related to this matter.
b.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.
c.The Independent Children's Lawyer is requested to forward to Dr G, in consultation with both Ms Ellis and the father, all such documents considered relevant for Dr G’s consideration.
d.The parties shall do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments as are reasonably necessary for 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 Kettle and Baker (No 2)

Details

AGLC: Kettle and Baker (No 2) [2010] FamCA 1164
Case: [2010] FamCA 1164
Decision Date: 8 December 2010

CaseChat Overview and Summary

In *Kettle and Baker (No 2)*, Murphy J of the Family Court of Australia considered an application concerning the conduct of proceedings and the preparation of evidence. The dispute involved the father's request for assistance from a Mr B as a "silent McKenzie Friend" and the striking out of certain paragraphs of an application.

The court was required to determine whether Mr B should be permitted to act as a silent McKenzie Friend for the father. Additionally, the court had to consider the validity of various paragraphs within an application filed on 25 November 2010, and whether they should be dismissed or struck out. The court also needed to make directions regarding the preparation of the matter for a final hearing, including the inspection of documents produced by subpoena and the preparation of a psychiatric report.

Murphy J permitted Mr B to act as a silent McKenzie Friend for the father. The court dismissed paragraphs 3 and 8 of the application filed on 25 November 2010, and struck out paragraphs 2, 4, 5, 6, and 7 of the same application. The matter was set down for a five-day final hearing commencing in July 2011, with several interim directions hearings scheduled to prepare for the trial. Leave was granted for parties to inspect subpoenaed documents, with specific provisions for the Independent Children's Lawyer to copy them. The court also ordered a psychiatric report to be prepared by Dr G, outlining the scope of her inspection and consultation, and requesting her opinion on whether the child should be interviewed for the trial and by whom. The court noted the availability of interviews with Dr G and the anticipated timeline for her report.

Orders

Orders of the court

IT IS ORDERED THAT

Mr B is permitted to act today as a silent McKenzie Friend for the father.

Paragraphs 3 and 8 of the Application in a Case filed on 25 November 2010 are each dismissed.

Paragraphs 2, 4, 5, 6 and 7 of the Application in a Case filed on 25 November 2010 are each struck out.

The matter is set down for a five day final hearing commencing at 10.00am on … July 2011 in the Brisbane Registry of the Family Court of Australia.

The matter is adjourned to the Magellan Registrar at 12.00 noon on … March 2011 for the making of all such directions as might be necessary to prepare the matter for final hearing in July 2011.

The matter is further adjourned for a directions hearing to be listed before the trial judge, in the week commencing 16 May 2011 at a time and on a date to be advised, for the purpose of considering all matters relevant to the conduct of the final hearing.

Leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy documents produced pursuant to subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.

AND IT IS NOTED THAT Mr B or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, is not permitted to assist the father with inspecting subpoena documents or acting as his agent to do so.

The costs of today be reserved.

IT IS FURTHER ORDERED THAT

A psychiatric report be prepared for the Court by Dr G, and for the purpose of completing the report:

a. The report writer has permission to inspect the Court file and all documents/documents related to this matter.

b. The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

c. The Independent Children's Lawyer is requested to forward to Dr G, in consultation with both Ms Ellis and the father, all such documents considered relevant for Dr G’s consideration.

d. The parties shall do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments as are reasonably necessary for the preparation of the report.

AND IT IS REQUESTED THAT Dr G express an opinion, if she considers it appropriate to do so, based on her interviews with the parties, and the material read by her, as to whether:

(i) The child should be interviewed at all by anyone for the purposes of the upcoming trial; and

(ii) If so, whether she has an opinion whether the person who interviews the child, and prepares a report in respect of same, should be her, or Ms S, or some other person.

AND IT IS NOTED THAT interviews are available with Dr G for the mother on 8 April 2011 and for the father on 11 April 2011, with a report available approximately three weeks after such interviews, and it is anticipated that such report will be available to the trial judge at the directions hearing in the week commencing 16 May 2011.

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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