Lorreck and Watts (No. 2)

[2018] FamCA 213

FAMILY COURT OF AUSTRALIA

LORRECK & WATTS (NO. 2) [2018] FamCA 213

FAMILY LAW – CHILDREN – FAMILY CONSULTANTS – Family Report – application for further report.
FAMILY LAW – VEXATIOUS PROCEEDING– application to declare party vexatious litigant.

APPLICANT: Ms Lorreck

RESPONDENT: Mr Watts

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 23 of 2009

DATE DELIVERED: 5 April 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

1. I dismiss the application of the mother in respect of the Family Report.

2. I dismiss the application of the father in respect of the vexatious declaration. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Lorreck & Watts (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 23 of 2009

Ms Lorreck

Applicant

And

Mr Watts

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The mother makes application for a further Family Report to be prepared by Ms D.  Ms D previously prepared a Family Report pursuant to Regulation 7 in which she conducted home visits with the parties and saw the boys with each of their parents in the various homes.  That form of assessment was an ideal form of assessment for these proceedings and in an ideal world it would have been appropriate for Ms D to continue with the updating of the assessment. 

2. The respondent seeks that the application in relation to Ms D be dismissed and seeks to have the mother declared as a vexatious litigant. 

3. Orders were made for the preparation of a Family Report following an interim reversal of the living arrangements for the boys.  Up until that point they had lived with their mother in Far North Queensland and spent school holiday time with their father.  The result of the interim proceedings was to reverse that situation pending a final hearing of the matter such that the boys are now living with their father in the Australian Capital Territory (ACT) and spending school holiday time with their mother.

4. An order was made at that stage for the preparation of the Family Report to be made available by the end of July 2018.  That order was made in order to allow these proceedings to promptly proceed to final hearing as the parties have undergone a torturous path of litigation and re-litigation in this matter. 

5. The Canberra Registry made arrangements for Family Report interviews to take place on 30 April 2018; that timing for the interviews for the Report is timely in order to allow the report to be prepared for the end of July 2018.

6. That date was an adjusted date when it became apparent after the Registry had communicated with the mother that the initial time that they had set aside for the interviews would have been a time when the boys would have been in Far North Queensland with the mother on school holidays being between 14 and 30 April 2018. 

7. The matter has come on today on short notice and it has been necessary to hear the matter without any further delay in order to avoid prejudicing the proper allocation of Court resources for the preparation of Family Reports.  As I noted previously, the recent report by Ms D was prepared pursuant to Regulation 7 and it allowed for home visits to take place.  The mother’s application is to have Ms D do an updated report with home visits.

8. As I indicated, ideally this would be the process that would be undertaken, however, I have been advised that there is no Court funding available to enable the use of a Regulation 7 reporter for this purpose.  Unfortunately that means that Ms D is not an option.

9. The mother has said that she cannot afford the trip to the ACT to take part in the interview process on 30 April 2018.  I pause there to note that the timing that has been set aside for that interview process appears to be ideal under what are difficult circumstances.  It would mean that the interviews with the boys would occur immediately following them having spent the two weeks of the school holidays with their mother.  This would seem to give the best option available to allow proper assessment of the ongoing relationship of the boys with their mother.  She, however, says that she cannot afford the trip to the ACT in April. 

10. I note that these proceedings have been conducted on her application.  I do not consider that there is sufficient material provided by the mother to substantiate the claim that she is unable to travel to the ACT in April.  I accept that in this case there are difficulties posed by distance.  There is no ready resolution, in order to prepare a Family Report someone will need to engage in travel.  At present the boys are living in the ACT. 

11. I do not have information to hand as to establish when, if the current date for assessment was vacated, that another date might become available or that there might be a date that could become available in Far North Queensland, further if there was a delay in the proceedings for an assessment to still take place in the ACT then the material is not sufficient to indicate that there would be a change in circumstances as to make that a better resolution.

12. Given the current availability of a date for the assessment of the boys that that date follows immediately upon the school holiday period with the mother and that it will enable the timely preparation of a Family Report so that the matter can proceed to final trial, despite the matters which have been raised by the mother I do not consider that it is appropriate to vacate those arrangements. 

13. The father sought an order that the mother be declared to be a vexatious applicant.  There is not sufficient material to allow me to conclude that the mother has frequently instituted or conducted vexatious proceedings.  I pause to note that even though she has been unsuccessful today in relation to have her application in respect of a Family Report it is not an unreasonable application for her to make under the circumstances.

14. Accordingly, I dismiss the application of the mother in respect of the Family Report and I dismiss the application of the father in respect of the vexatious declaration. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 April 2018

Associate: 

Date:  5 April 2018