LINDSAY & LINDSAY

[2014] FamCA 703

FAMILY COURT OF AUSTRALIA

LINDSAY & LINDSAY [2014] FamCA 703

FAMILY LAW – CHILDREN – Application for Family Report to be prepared – Where the two major, matters in dispute in the parenting proceedings at the moment are the concern on the part of the father that the mother’s new partner is a drug abuser; and an educational issue as to whether or not the father should be obliged to pay for any emergency travel of the mother to the children’s boarding school in Melbourne – Where court not persuaded that a Family Report is a good means of trying to investigate either matter – Where court persuaded that a Family Report would have potential for counterproductive results – Where court noted that in the event of further information coming to hand which might justify the revisiting of the question of the necessity of a Family Report, the parties would not be precluded from making such application.

Family Law Act 1975 (Cth)

APPLICANT: Mr Lindsay

RESPONDENT: Ms Lindsay

FILE NUMBER: CSC 826 of 2012

DATE DELIVERED: 19 August 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 19 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cope

SOLICITORS FOR THE APPLICANT: Cope Family Law

COUNSEL FOR THE RESPONDENT: Mr Betts

SOLICITORS FOR THE RESPONDENT: Hadley Family Law

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindsay & Lindsay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 826 of 2012

Mr Lindsay

Applicant

And

Ms Lindsay

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By his Amended Application in a Case filed 28 July 2014, amongst other things, the father seeks an order that a Family Report be prepared in this matter, and that the parties share equally in the costs of the same. 

2. The parenting dispute between these parties relates to three children:  B aged 15, C aged 13 and D aged 10.  B is already at boarding school in Melbourne and the parties are agreed – subject to some issues which have been unable to be resolved – that in principle, C should commence to attend boarding school in Melbourne next year as well.  At present, the dispute between the parties in relation to parenting matters appears to be slender.

3. Both parties appear to agree, at least according to their Application and Response, that it is appropriate that there be equal shared care of the children, and moreover, to the extent that there remain factual issues potentially in dispute between the parties, they appear to relate primarily to firstly, alleged drug abuse by the mother’s new partner, Mr E, and secondly, the appropriate educational regime for the children going forward.  

4. The parties entered into consent orders, which were made by Willis FM on 6 February 2013, albeit amended by her Honour on 12 March 2013.  Amongst the orders that were made was order 24, which obliged neither of the parties, but rather the treating doctor of Mr E – who himself, I note, is not a party to the proceedings – to provide a report as to whether or not he has been treating Mr E for drug issues.  It was then further provided within that order, that the father’s solicitor have the opportunity to ask specific questions of the doctor.  Order 25 provided that the mother’s solicitor was to obtain a report – a brief report – from Mr E’s counsellor relating to the general nature of his attendances.  Finally, order 26 – I use the term “order” in its broader sense – provides:

   The Court notes that Mr E will agree to random drugs tests as and when requested and will attend to the same within five hours of request.  Request to occur no more than once each six weeks and the results to be filed, annexed to an affidavit within four working days.

5. It is appropriate to note that order 26 is, in fact, in the nature of recording an agreement without – it would seem – involving any coercive power of the Court to compel performance of the agreement.  Mr Betts, who appears as counsel for the mother, frankly admits that the treating doctor has not provided a report as contemplated by order 24.  However, he tells me, without any opposition from the bar table, that although the treating doctors’ notes and records have all been produced pursuant to subpoena, he is reluctant to provide a report.  Further, he points to some very broad areas of questioning which were made by the father’s solicitors to Mr E’s doctor, which apparently were the subject of dispute.

6. The solicitors for the father prepared a helpful aide-mémoire listing all requests made of Mr E to attend to drug testing, and a short summary of the response, and where results were obtained, results of those drug tests.  Mr E, with perhaps one exception where he says that he was frustrated in relation to a request that was made of him, has explained his several failures to attend with the alacrity contemplated by the notation or demanded by the father’s solicitor, by reference to his employment, particularly working in remote areas and, on occasion, being unable to attend the relevant testing facility in order to comply with the request made of him.  Whether those explanations are truthful or not is not a matter that I can investigate or determine on an interim hearing such as this. 

7. The utility which a Family Report could have in those circumstances is questionable.  As customarily prepared, Family Reports involve the interviewing of the relevant major players in the children’s lives, observations of interactions between the children and those persons and, on occasion, extensive notations of interviews between the Family Report writer and the children.  However, a Family Report in these circumstances, where there is really only some concern on the part of the father that Mr E is a drug abuser, is unlikely to yield much, and particularly, is likely to go little further than a hearsay recital of what Mr E may tell the Family Report writer.  Of course, I have already the benefit of his affidavits in that respect.   

8. Moreover, in relation to the educational issues, they appear to really boil down to nothing much more than whether or not the father should be obliged to pay for any emergency travel of the mother to the children’s schools in Melbourne in the event that they fall ill or otherwise require her urgent attendance.  Again, it is difficult to see how a Family Report could assist the Court in resolving such a narrow issue. 

9. So in summary, it appears to me that a Family Report is a very blunt instrument to be deploying to try and make some form of forensic investigation as to Mr E’s drug abuse, and further, it appears to be unlikely to offer much insight in relation to the areas of dispute in relation to educational matters.  As I have said, they are the two major, and perhaps the only, matters in dispute in the parenting proceedings at the moment. 

10. On the other hand, there are sound considerations which militate against the making of a Family Report.  Firstly – as Mr Betts says – things are going reasonably well in relation to the parties’ parenting of the children, and the Family Report may intrude upon that relatively successful regime.  Secondly, a Family Report is likely to draw the children into these proceedings in a way which is perhaps unnecessary and counterproductive.  At the moment these parties are – to a large extent – to be congratulated on having apparently shielded their children from most of their conflict or, at least, a substantial part of it.  

11. So upon analysis, I am not persuaded that a Family Report is a good means of trying to further investigate concerns in relation to Mr E’s drug use.  I am not persuaded that it is a well adapted tool to investigate the minutiae of the education orders and I am persuaded that the report would have potential for counterproductive results, potentially impacting adversely upon the children.  Weighing those matters in the balance, I am not persuaded that it is appropriate to order a Family Report in this case, at least, at this point.  

12. In saying that, I am mindful that the parties appear to be agreed that it will be at least a year until this matter is likely to come to trial.  In the event that some further information comes to hand in the meantime, which might justify a revision of the question of whether or not a Family Report would have some utility, this decision would not preclude any such application being made. 

13. I decline to order a Family Report.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 August 2014.

Associate: 

Date:  19 August