Lexor and Lexor

[2013] FamCA 471

FAMILY COURT OF AUSTRALIA

LEXOR & LEXOR [2013] FamCA 471

FAMILY LAW – PRACTICE AND PROCEDURE – Whether there is power for a court to make an order for the preparation of a family report when that court is transferring proceedings to another court – Whether it is appropriate to make such an order – Order by the Federal Circuit Court for the preparation of a family report discharged – Order made for the preparation of a Chapter 15 expert report

Family Law Act 1975 (Cth)

APPLICANT: Ms Lexor

RESPONDENT: Mr Lexor

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: ADC 129 of 2013

DATE DELIVERED: 13 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watt J

HEARING DATE: 13 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Robertson Solicitors

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

Orders

1. Orders 4 to 8 made by Judge Altobelli on 22 May 2013 be discharged.

2. Orders be made in terms of the document signed by the parties and marked as Exhibit “1” as annexed hereto.

Consent orders in relation to the appointment of the Chapter 15 expert not reproduced

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lexor & Lexor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 129 of 2013

Ms Lexor

Applicant

And

Mr Lexor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This case concerns a boy who is nearly 6 who has lived with his father for two years. There are allegations of systemic family violence.

2. The mother filed an application for parenting orders and ex parte injunctions in the Federal Magistrates Court (now the Federal Circuit Court “FCC”) in Adelaide in January 2013. An order was made on 16 January 2013 by FM Kelly, ex parte, making injunctive orders restraining a child from being taken from Australia and transferring the matter to the Sydney Registry.

3. On 22 May 2013 Judge Altobelli made an order transferring the matter to the Family Court of Australia (“FCoA”) and ordered the appointment of an Independent Children's Lawyer. At the same time, he made an order pursuant to s 62G(2) Family Law Act (“FLA”) for the preparation of a family report and consequential orders to facilitate the preparation of the report.

4. A question has been raised as to whether or not the order under s 62G(2) FLA is a valid order. Section 62G(2) is in the following terms:

   The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

5. Section 4 FLA defines “court” in the following terms:

   Court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this act.

6. The wording of s 62G(2) FLA clearly gives Judge Altobelli the power to make an order for a family consultant to give his court a report. Even though there are now no pending proceedings in the FCC because the matter has been transferred to the FCoA, there was power to make the order at the time it was made.

7. The next question is to which court is the family consultant to give the report.

8. An order made under the FLA may be enforced by any court having jurisdiction under the FLA as long as the order has been registered in that court (s 105(1) and (2) FLA). Registration takes place upon a sealed copy of the order being filed in that court (Regulation 17 Family Law Regulations).

9. Upon transfer, a sealed copy of the order made by Judge Altobelli was registered as an order in the FCoA and is enforceable in its terms. “The Court” to which the order requires the family consultant to give the report became the FCoA after the proceedings were transferred to it.

10. It is for an individual judge in a court transferring a matter to make a decision as to whether or not in the circumstances of a particular case the ordering of a report is appropriate (for example where urgent issues need to be determined by the court to which the matter has been transferred).

11. Given the different case management pathways in both courts, it may be that usually a justice or judge who transfers a matter from the FCoA to the FCC or from the FCC to the FCoA may be circumspect in doing so.

12. On reviewing the material and further discussing the matters with the parties and the Independent Children's Lawyer, I accept the submission made by the Independent Children's Lawyer that because it appears that at the final hearing the following issues will be in issue:

    12.1.the mental status of the child

    12.2.the mental status of both parties

    12.3.allegations of extreme systemic violence

    12.4.the effect of a two year separation from a parent who asserts she was the child’s primary carer to the age of 4

    12.5.the separation of siblings

    it is appropriate in this case for a Chapter 15 expert report to be ordered rather than a family report.

13. I consequently find that although the order for the s 62G report was validly made and could have been enforced in this court, on further consideration, it is appropriate for a Chapter 15 report to be ordered to be completed and for the order for the preparation of the s 62G report to be discharged.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 13 June 2013

Associate:   

Date:  19 June 2013