Kingley & Arndale (No 2)

Case [2010] FamCA 968


FAMILY COURT OF AUSTRALIA

KINGLEY & ARNDALE (NO. 2) [2010] FamCA 968
FAMILY LAW – PROCEDURE – Application for removal from file of family consultant’s reports and that copies released be recovered – Application inferentially that family consultant be discharged – Application for appointment of new family report writer – Application for discharge of independent children’s lawyer and appointment of new independent children’s lawyer – Orders made for discharge of family consultant and appointment of new family consultant – Orders made concerning existing reports – Order made that independent children’s lawyer  not be discharged – Observations as to the need for family consultants to be seen to be independent witnesses – Observations as to the role of independent children’s lawyers
Family Law Act 1975 (Cth) ss 69ZN(3), 69ZN(5)(a)
Antoun v The Queen [2006] HCA 2
Bennett & Bennet t (1991) FLC 92-191
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Harris & Harris (1977) FLC 90-276
Johnson & Johnson (2000) 201 CLR 488
Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
Reisner & Reisner (2010) FamCA 473
APPLICANT: Mr Kingley
RESPONDENT: Ms Arndale
INDEPENDENT CHILDREN’S LAWYER: Ms Brasch
FILE NUMBER: BRC 1363 of 2008
DATE DELIVERED: 8 October 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 7 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson
SOLICITOR FOR THE APPLICANT: Smith & Associates
THE RESPONDENT: In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brasch
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

Legal Aid Queensland

Orders

IT IS ORDERED

Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010

  1. Mr P be discharged as the family consultant in the proceedings.

  2. Mr P’s reports dated 7 September 2009 and 30 April 2010 and any affidavits annexing copies of or referring to the contents of those reports not be removed from the Court file but be sealed up in envelopes bearing the same folio numbers and marked “Not to be opened other than by the Order of a Judge”.

  3. Mr P’s reports dated 7 September 2009 and 30 April 2010 not be introduced into evidence in these proceedings, not used for any purpose in them and there be no reliance on them by any party or any witness or the independent children’s lawyer in the proceedings.

  4. Manager Child Dispute Services appoint a new family consultant in the matter to prepare a new family report as soon as possible.

  5. The independent children’s lawyer not be discharged and a new independent children’s lawyer not be appointed.

  6. Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010 otherwise are dismissed.

Listing 22 October 2010 vacated

  1. The listing on 22 October 2010 in relation to interim parenting orders sought by the mother in her application filed 30 June 2010 paragraphs 1, 2 and 3 and by the father in his amended response filed 6 September 2010 be vacated.

Further listing

  1. The matter be…

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AGLC
Kingley & Arndale (No 2) [2010] FamCA 968
Case
[2010] FamCA 968
Decision Date

CaseChat Overview and Summary

In the proceedings before O'Reilly J, the mother sought orders concerning the discharge of a family consultant, the sealing and non-use of the consultant's reports, the appointment of a new consultant, and the continuation of the independent children's lawyer. The father had also filed an amended response concerning interim parenting orders.

The court was required to determine whether to grant the mother's application to discharge the existing family consultant, seal and prevent the use of his reports, and appoint a new consultant. Additionally, the court needed to consider the continuation of the independent children's lawyer and the vacating of a scheduled listing for interim parenting orders, as well as make directions for future listings, including trial.

O'Reilly J ordered the discharge of Mr P as the family consultant and directed that his reports be sealed and not used in the proceedings. A new family consultant was to be appointed to prepare a fresh report. The independent children's lawyer was to continue in the matter. The listing for interim parenting orders was vacated, and the matter was listed for directions regarding interim and trial orders, with a view to fixing trial dates in early 2011. The court also ordered further psychiatric assessments of the mother and father.

Orders

Orders of the court

IT IS ORDERED

Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010

1.

Mr P be discharged as the family consultant in the proceedings.

2.

Mr P’s reports dated 7 September 2009 and 30 April 2010 and any affidavits annexing copies of or referring to the contents of those reports not be removed from the Court file but be sealed up in envelopes bearing the same folio numbers and marked “Not to be opened other than by the Order of a Judge”.

3.

Mr P’s reports dated 7 September 2009 and 30 April 2010 not be introduced into evidence in these proceedings, not used for any purpose in them and there be no reliance on them by any party or any witness or the independent children’s lawyer in the proceedings.

4.

Manager Child Dispute Services appoint a new family consultant in the matter to prepare a new family report as soon as possible.

5.

The independent children’s lawyer not be discharged and a new independent children’s lawyer not be appointed.

6.

Paragraphs 4, 5 and 6 of the mother’s application filed 30 June 2010 otherwise are dismissed.

Listing 22 October 2010 vacated

7.

The listing on 22 October 2010 in relation to interim parenting orders sought by the mother in her application filed 30 June 2010 paragraphs 1, 2 and 3 and by the father in his amended response filed 6 September 2010 be vacated.

Further listing

8.

The matter be listed at 10.30 am on 30 November 2010 before Registrar Kane for directions in relation to:

a. the listing of the applications for interim parenting orders referred to in paragraph 7; and

b. trial directions.

9.

If possible, dates for trial be allocated no later than early 2011 before the Honourable Justice O’Reilly or another judge for 15 days as estimated by Mr Baston of Counsel as fixed trial dates.

Order 12 May 2010

10.

Paragraph 6 of the order made 12 May 2010 is discharged.

Dr V

11.

The mother and the father attend upon Dr V for further psychiatric assessment and report on dates and at times advised to them by the independent children’s lawyer.

NOTATION:

In relation to paragraph 9 Mr Baston of Counsel is engaged for the mother for the trial.

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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