FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUSK & PAISLEY | [2015] FCCA 2631 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements – objection to subpoena – discussion of protected confidences – allegations of sexual abuse – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.60CA, 69ZN, 69ZR, 69ZT, 69ZV, 69ZW Children and Young Persons (Care and Protection) Act 1998, s.248 |
| Jones & Dunkel (1959) 101 CLR 298 Deacon & Castle [2013] FCCA 691 M & M (1987) FLC 91 – 830 Briginshaw v Briginshaw (1938) 60 CLR 336 B & B (1986) FLC 91 – 758 Amador & Amador (2009) 43 Fam LR 268 Other Articles Cited: Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 |
| Applicant: | MS LUSK |
| Respondent: | MR PAISLEY |
| File Number: | AYC 148 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 27 August 2015 |
| Date of Last Submission: | 27 August 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 27 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Martinovic |
| Solicitors for the Applicant: | Grasso Searles & Romano |
| Counsel for the Respondent: | Mr Baume |
| Solicitors for the Respondent: | Belbridge Hague |
| Counsel for the Independent Children’s Lawyer: | Ms Stolier |
| Solicitors for the Independent Children’s Lawyer: | Louise Coady Family Lawyer |
ORDERS
Leave is granted to the legal representatives for the parties to inspect material produced on subpoena by:
(a)The New South Wales Police Service;
(b)(omitted) Hospital.
Pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within two (2) hours after receipt by them of this request a Personal History Summary relating to the following child/ren:
(a)X born (omitted) 2009;
(b)Y born (omitted) 2012;
or any of them.
Neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services without the Court’s leave.
I find that there is no unacceptable risk established with respect to the children X born (omitted) 2009 and Y born (omitted) 2012 as at today’s date.
Pursuant to section 62G…
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- AGLC
- Lusk and Paisley [2015] FCCA 2631
- Case
- [2015] FCCA 2631
- Decision Date
CaseChat Overview and Summary
The court was required to determine the legal issues surrounding the risk to the children, the appropriate arrangements for their care, and the procedural steps necessary to facilitate a final hearing. Specifically, the court needed to consider the evidence available, including material produced by the New South Wales Police Service and a hospital, and to obtain further information regarding the children's personal histories from Community Services. The court also had to address the capacity of the parents to provide for the children's needs and their ability to communicate and resolve parenting difficulties.
In its reasoning, the court granted leave for parties to inspect subpoenaed material and requested a Personal History Summary from Community Services. Crucially, the court found that no unacceptable risk to the children had been established as at the date of the hearing. To further inform its decision regarding the children's welfare, the court ordered a Family Report to be prepared pursuant to section 62G of the Family Law Act 1975, outlining specific areas for the Family Consultant to consider, including the children's relationships with their parents and others, the impact of potential changes in circumstances, the practicalities of maintaining contact, the parents' capacity to meet the children's needs, and their communication and problem-solving abilities. Trial directions were also made, setting dates for the final hearing, outlining requirements for filing affidavit material and case outlines, and specifying procedures for the potential cross-examination of the Family Consultant.
The court made orders for leave to inspect subpoenaed material, for the provision of a Personal History Summary, and directed that no further subpoenas be served on Community Services without leave. It found no unacceptable risk to the children and ordered the preparation of a Family Report. Trial directions were also issued, including hearing dates and deadlines for the filing of evidence and case outlines.
Orders
Orders of the court
1.
Leave is granted to the legal representatives for the parties to inspect material produced on subpoena by:
(a) The New South Wales Police Service;
(b) (omitted) Hospital.
2.
Pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within two (2) hours after receipt by them of this request a Personal History Summary relating to the following child/ren:
(a) X born (omitted) 2009;
(b) Y born (omitted) 2012;
or any of them.
3.
Neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services without the Court’s leave.
4.
I find that there is no unacceptable risk established with respect to the children X born (omitted) 2009 and Y born (omitted) 2012 as at today’s date.
5.
Pursuant to section 62G of the Family Law Act 1975 a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit X attached hereto.
6.
Trial directions are made in accordance with Exhibit Y attached hereto.
EXHIBIT X
FAMILY REPORT
1.
Pursuant to section 62G of the Family Law Act 1975, a report be prepared for the Court by a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia.
2.
The Report writer is requested to consider and comment upon the following:
(a) The nature of the relationship of the child/ren with each of the child/ren's parents; and other persons (including any grandparent, partner of a parent or other relative of the child/ren or other person’s living within either parent’s household;
(b) The likely effect of any changes in the child/ren 's circumstances, including the likely effect on the child/ren of any separation from either of his or her parents or any other child/ren, or other person (including any grandparent or other relative of the child/ren or member of either parent’s household), with whom he or she has been living or spending time on a regular basis, noting that since February 2014 the children have lived apart and both parties agree that this is disadvantageous to them and they each seek that the children both live with them and the mother seeks to relocate with the children to Queensland;
(c) The practical difficulty and expense of a child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren's right to maintain personal relations and direct contact with both parents on a regular basis and, if so, what arrangements might be made to seek to address such affects;
(d) The capacity of each of the child/ren’s parents and any other person (including any grandparent or other relative of the child/ren or member of the parent’s household) to provide for the needs of the child/ren, including physical, emotional and intellectual needs;
(e) The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren's parents and/or members of a parents household or other care givers;
(f) The parents' current and future capacity to communicate with each other and resolve difficulties that might and with respect to same:
(i) any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(ii) the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the child/ren;
(g) Such other matters as the Report Writer considers relevant.
3.
The Report Writer is requested to identify and provide appropriate citations for any social science literature that has been referred to and/or relied upon in expressing opinions within the report.
4.
The Family Consultant is requested to complete the report not less than 4 weeks before the adjourned date.
5.
The parties shall attend all appointments with the Family Consultant and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
6.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to the parties and/or the Independent Children’s Lawyer.
EXHIBIT Y
TRIAL DIRECTIONS
1.
The matter is listed for Final Hearing before Judge Harman at 10.00am on 15-16 August 2016 and to continue until completion.
2.
In the event that either/any party (or the Independent Children’s Lawyer) requires the report writer for cross examination then written notice of that fact is to be given to the report writer/the Director of Family Consultancy services upon receipt of the Family Report and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party or the Independent Children’s Lawyer they shall cause the proceedings to be relisted and absent notice within 21 days of today’s date the report will be admitted without challenge.
3.
Direct the Applicant to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 6 May 2016.
4.
Direct the Respondent to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 1 July 2016.
5.
Direct the Applicant, should she consider it necessary or appropriate, to file an Affidavit by her and only her answering any material in reply to the Respondent’s Affidavits which has not already been addressed in her evidence in chief no later than close of business on 22 July 2016 and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.
6.
The Court notes that the Applicant would propose calling evidence from herself plus two.
7.
The Court notes that the Respondent would propose calling evidence from himself plus one.
8.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
9.
Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email to my Associate no later than close of business 12 August 2016, such Case Outline to incorporate:
(a) The material that is relied upon by that party or the Independent Children’s Lawyer, being one Affidavit per witness together with any Affidavit in reply;
(b) The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c) A chronology of events.
10.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
11.
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.
12.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).
13.
In the event that the matter is resolved or in the event that either the above filing directions are not fully complied with by the dates fixed and/or the matter will not be able to proceed or be contained within the allocated hearing time, then the parties and the Independent Children’s Lawyer are to forthwith relist the proceedings on 7 days’ notice in accordance with Federal Circuit Court protocols, so that appropriate Orders can be made to either ensure that the matter proceeds within the time allocated or vacate the hearing dates and make such further directions as necessary.
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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