Mayer and Stratfield and Anor

[2013] FamCA 833

FAMILY COURT OF AUSTRALIA

MAYER & STRATFIELD AND ANOR [2013] FamCA 833

FAMILY LAW – PROCESS AND PROCEDURE – Adjournment – appointment of expert to produce family report.

APPLICANT: Ms Mayer

FIRST RESPONDENT: Ms Stratfield

SECOND RESPONDENT: Mr English

INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

FILE NUMBER: MLC 6796 of 2012

DATE DELIVERED: 17 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE APPLICANT: In Person

Orders

1. That all applications for final orders be adjourned for hearing before me on 12 May 2014 at 10 am, noted as a seven day matter, and that the evidence-in-chief of all witnesses be given by affidavit.

2. That the matter be listed for mention before me at 10 am on 2 April 2014.

3. That by 4 pm on 7 February 2014, the applicant file and serve upon all other parties:

   (a)the affidavits of evidence-in-chief of all witnesses, including the applicant, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief); and

   (b)a statement of financial circumstances that complies with chapter 13 of the Family Law Rules.

4. That the applicant pay all setting down and trial fees by 4 pm on 7 February 2014.

5. That by 4 pm on 7 March 2014, the first respondent file and serve upon all other parties:

   (a)the affidavits of evidence-in-chief of all witnesses, including the respondent, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief); and

   (b)a financial statement that complies with chapter 13 of the Family Law Rules.

6. That by 4 pm on 14 March 2014, the second respondent file and serve upon all other parties the affidavits of evidence-in-chief of all witnesses, including the second respondent, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).

7. That by 4 pm on 21 March 2014, the applicant file and serve any affidavit in reply to that of the affidavits of the first and second respondent.

8. That by 4 pm on 28 March 2014, the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.

9. That no party file any further material, other than as provided by these orders, without leave of the Court.

10. That prior to the commencement of the trial, the parties determine whether there are to be any rulings required, arising out of objections to evidence, and such objections be referred to in the parties’ outlines of case.

11. That, pursuant to section 62G(2) of the Act, the parties, the children – and that is, both children, B and C - and Ms D attend upon Ms E for the purposes of the preparation of a family report.

12. That Ms E be at liberty to inspect the court file and all documents produced under any subpoena, to which objection to release has not been taken.

13. That the Independent Children’s Lawyer be permitted to provide to Ms E a copy of the report of Dr F dated 22 October 2012. 

RECORDED  :  NOT TRANSCRIBED

1. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar, docketed with the management of the file.

2. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders, to ensure readiness for trial.

3. Should any party fail to comply with these orders, or the ensuing amending directions of the docketed registrar:

   (a)the Court may relist the case, requiring the parties to justify why it should not be taken out of the list;

   (b)the party who has complied may immediately thereafter file an application in a case, supported by an affidavit seeking for the matter to proceed on an undefended basis.

4. That the practitioners for the parties file and serve electronically to my associate by 4 pm on 7 May 2014 the following:

   (a)       a concise set of orders to be sought, if different from those already filed;

   (b)a  list of the applications and affidavits to be read, and if not the whole affidavit, the relevant paragraphs relied upon;

   (c)a list of assets and liabilities;

   (d)a list of objections to evidence upon which rulings are required;

   (e)a bullet point summary of argument in relation to the issues in dispute.

5. That each party provide to the court, at the commencement of the hearing, a statement setting out the costs incurred to that date, and from what source those funds have been paid, and what costs are expected to be incurred until the completion of the hearing. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mayer & Stratfield and Anor 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 MELBOURNE

FILE NUMBER: MLC 6796 of 2012

Ms Mayer

Applicant

And

Ms Stratfield

First Respondent
And
Mr English
Second Respondent

REASONS FOR JUDGMENT

1. There is a dispute between the parties as to the identity of an expert to be appointed to prepare a Family Report for the purposes of the final hearing listed on 12 May 2014.  Counsel for Ms Stratfield urges the Court that an expert from New South Wales should be appointed to prepare the report due to the sensitivities in this matter surrounding his client’s relationship with another psychologist, Ms D.  There have been previous proceedings relating to care arrangements for the child B, who is the child of Ms Stratfield and Mr English.  Justice Dessau heard those proceedings and delivered a judgment which in part levelled criticisms at Ms D’s professional conduct.

2. Ms Stratfield and Ms D are now in a relationship and living together.  Dr F was engaged earlier in these proceedings to prepare a report in relation to parenting issues.  Ms Stratfield is critical as to the manner in which Dr F has prepared her report.  She complains that Dr F did not see all relevant people, including her partner Ms D, that Dr F subsequently reported Ms D to the psychological Board which ultimately dismissed that complaint.  Counsel for Ms Stratfield urges that an expert from New South Wales be appointed to prepare the Family Report.

3. Counsel for the ICL proposes that Ms E be appointed to prepare the Family Report in the matter.  Counsel for Ms Mayer and Mr English support that position.

4. This matter needs to progress.  I’m satisfied on the basis of the submissions made by Ms Dowler, as to her conversation with Ms E that she is a person who is appropriately qualified to provide a report in this matter.  I’m also satisfied that she is able to act as an independent expert.  She has been provided with a brief outline as to the history of the matter, and as to the issues in dispute.  She has confirmed to Ms Dowler and to counsel appearing on behalf of both parties her understanding of those issues.

5. As outlined, given that history, I take the view that Ms E is an appropriate expert to prepare a family report in the matter.  She has been directly asked as to whether or not she is in a position to make any criticisms that may be required of her in the context of a final hearing, with respect to the report of Dr F and the evidence of Ms D.  She has indicated that, if necessary, she is in a position to give such evidence.  I take the view this matter has to progress.  There needs to be a report prepared by an appropriately qualified person.  In light of the indications given by Ms E as to her position, that she is not engaged in the dispute or familiar with the specific allegations in this case, with respect to Ms D, I consider that she is an appropriately qualified and impartial expert.  

6. The orders that I propose to make in relation to procedural matters – that is, directions for trial – are as follows.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 October 2013.

Associate: 

Date: