Lovine and Connor

[2010] FamCA 943

FAMILY COURT OF AUSTRALIA

LOVINE & CONNOR [2010] FamCA 943

FAMILY LAW – CHILDREN – Family Report ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Lovine

RESPONDENT: Ms Connor

FILE NUMBER: MLC 9419 of 2009

DATE DELIVERED: 1 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 1 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N.J. Ackman QC
Ms S.L. Johns

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: Mr A.I. Strum

SOLICITOR FOR THE RESPONDENT: Lander & Rogers Lawyers

Orders

IT IS ORDERED THAT

1. The husband have leave to withdraw his Application in a Case filed on 28 May 2010 without prejudice to the husband’s right to argue the merits thereof at the final trial.

2. All final applications be referred to the Registrar’s Directions List at 10:00am on Tuesday, 6 July 2010 for the making of such orders and directions as may be necessary to prepare the matter for final trial before Justice Mushin commencing on Monday, 25 October 2010 subject to part heard cases only, with an estimated duration of up to six days.

3. The directions to be made in accordance with paragraph 2 hereof include the following:

   (a)an order for a full Family Report to be prepared by an appropriately qualified external single expert to be nominated by the parties at the expense of the parties and to specifically exclude Mr L; and

   (b)a trial plan to be filed no later than three sitting days prior to the commencement of the trial.

4. The court has considered the appointment of an Independent Children’s Lawyer and has specifically decided against the need for such appointment.

5. Pursuant to the provisions of section 79(9)(b) of the Family Law Act 1975 the requirement that the parties attend a conciliation conference be and is hereby dispensed with.

6. All questions of costs be reserved.

7. General liberty be reserved to all parties to apply.

8. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.  

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and senior counsel.

IT IS NOTED that publication of this judgment under the pseudonym Lovine & Connor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9419 of 2009

MR LOVINE

Applicant

And

MS CONNOR

Respondent

REASONS FOR JUDGMENT

1. These proceedings have come before me today by way of review of Senior Registrar FitzGibbon on an interim decision with regard to child matters concerning the two children of the parties, aged nine and six years.  The present issue concerns a family report by Mr L, a well-known forensic and clinical psychologist practising frequently in this jurisdiction.  The family report was ordered at the joint request of the parties through their solicitors and is dated 20 April 2010.  As a result of discussions which have taken place between myself and Counsel, it has been determined that the application for review will not be proceeded with and rather that the final applications will go to trial before me, commencing on 25 October 2010.

2. As part of the preparation for that trial, it is necessary to determine whether an updated report should be provided for the trial.  In my view, given all the circumstances, which are not necessary to be detailed here, it is necessary for such an update.  On that basis, Senior Counsel for the husband has objected to Mr L continuing.  I deliver these reasons on the basis that I have decided to accept that submission.

3. I have read Mr L’s report on three occasions today.  It has concerned me, primarily because of the methodology followed by him in its preparation. It is not appropriate for me to go into great detail.  I leave open the question as to whether any, and if so how much, weight should be given to Mr L’s evidence, and presumably he will still be called at the trial.  My initial concern arises out of the list on page 2 of the interviews and observations which have been undertaken by Mr L in preparation of his report.  He has spoken to each of the husband, the wife and the two children separately.  He has not seen the parties together and he has not seen either party together with either or both of the children.  My concern is that some of the recommendations that he has made, particularly in circumstances where the children make it quite clear that they do not want to express a preference as between their parents on the issues, may have been assisted by such observations. I note that the experience of this jurisdiction would suggest that it is extraordinarily unusual for such observations in groups of people to which I have referred not to be made.

4. Accordingly, without making any finding with regard to Mr L, I have sufficient concern to determine that a welfare report should be prepared for the trial by another expert, the identity of whom I will discuss with Counsel shortly, and I will order accordingly.

5. Now, given that there seemed to be sufficient funds, my preference is for the appointment of an independent single expert from outside the Court to be paid for by the parties, and questions of costs to be determined, then I would like to select such a person now.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  22 October 2010