MEADOWS & MEADOWS - [2017] FamCA 907

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS

[2017] FamCA 907

FAMILY LAW – PARENTING – Where the mother seeks to set aside previous orders and have the child returned to her care – Whether it is proved that there was a change in circumstances that would satisfy the court that the orders ought to be amended

FAMILY LAW – SPOUSAL MAINTENANCE – Whether a spousal Maintenance Order should be made

Family Law Act 1975 (Cth)

APPLICANT:

Ms Meadows

RESPONDENT:

Mr Meadows

INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

FILE NUMBER:

PAC

3509

2013

DATE DELIVERED:

11 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

9 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

McPhee Kelshaw

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stidwill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

Orders

1.   The wife’s Applications in a Case filed 22 February 2017, 5 May 2017 and 7 September 2017 are dismissed.
2.   The wife is permitted to press her application for the discharge of the Independent Children's Lawyer once the matter is in a state to be listed for hearing, it being noted that she did not press for the discharge of the Independent Children's Lawyer in the hearing before me.
3.   The final hearing of all outstanding issues in this case is expedited.
4.   Subject to the wife agreeing to participate in a psychiatric assessment of her by an expert appointed for that purpose, the Independent Children's Lawyer is to provide the wife with a list of three experts who the Independent Children's Lawyer considers are qualified to provide a report to the Court. The wife is to select one name from the list and forthwith notify the Independent Children's Lawyer.
5.   In the event of the wife having notified the Independent Children's Lawyer of the name of the expert she would attend upon for the purpose of the Court being provided with a report as envisaged in order four hereof the Independent Children's Lawyer is to prepare a letter of instruction to that expert seeking the provision of a report which addresses the following:
(a)   Opinion of the expert as to the psychiatric/mental health of the wife.
(b) Any recommendation the expert can make as to any necessary treatment or management regime in relation to any aspect of the wife’s mental health.
(c) Opinion as to any risk to the parties’ child’s physical, emotional or mental wellbeing which might arise should the child live with the wife or spend significant time with her in the event of the expert opining the wife does have a diagnosed psychiatric illness or other mental health condition.
6.   The cost of obtaining the report is to be met by the husband. To that end the husband is permitted to draw the amount required to pay for the report against the mortgage registered against the title to the former matrimonial home. To that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MEADOWS & MEADOWS [2017] FamCA 907
Case: [2017] FamCA 907
Decision Date: 11 October 2017

CaseChat Overview and Summary

This case involved applications by the wife concerning parenting and spousal maintenance. The wife sought to set aside previous parenting orders and have the child returned to her care, alleging a change in circumstances. She also pursued an application for spousal maintenance. The proceedings were heard by Le Poer Trench J.

The primary legal issues before the court were whether there had been a sufficient change in circumstances to warrant amending the existing parenting orders, and whether a spousal maintenance order should be made. The court was also required to consider the welfare of the child and the appropriate steps to gather evidence relevant to these matters.

Le Poer Trench J dismissed the wife's applications filed on 22 February 2017, 5 May 2017, and 7 September 2017. The court noted that the wife had not pressed her application for the discharge of the Independent Children's Lawyer during the hearing. To facilitate the determination of the parenting issues, the court ordered an expedited final hearing and directed that the wife undergo a psychiatric assessment by an expert appointed by the Independent Children's Lawyer. The husband was to fund this assessment, with permission to draw against the mortgage on the former matrimonial home for this purpose. Furthermore, a family consultant was appointed as a Single Expert Witness to report on the welfare of the child, with specific matters to be addressed in the report to be determined through a process involving the parties and the Independent Children's Lawyer.

Orders

Orders of the court

1. The wife’s Applications in a Case filed 22 February 2017, 5 May 2017 and 7 September 2017 are dismissed.

2. The wife is permitted to press her application for the discharge of the Independent Children's Lawyer once the matter is in a state to be listed for hearing, it being noted that she did not press for the discharge of the Independent Children's Lawyer in the hearing before me.

3. The final hearing of all outstanding issues in this case is expedited.

4. Subject to the wife agreeing to participate in a psychiatric assessment of her by an expert appointed for that purpose, the Independent Children's Lawyer is to provide the wife with a list of three experts who the Independent Children's Lawyer considers are qualified to provide a report to the Court. The wife is to select one name from the list and forthwith notify the Independent Children's Lawyer.

5. In the event of the wife having notified the Independent Children's Lawyer of the name of the expert she would attend upon for the purpose of the Court being provided with a report as envisaged in order four hereof the Independent Children's Lawyer is to prepare a letter of instruction to that expert seeking the provision of a report which addresses the following:

(a) Opinion of the expert as to the psychiatric/mental health of the wife.

(b) Any recommendation the expert can make as to any necessary treatment or management regime in relation to any aspect of the wife’s mental health.

(c) Opinion as to any risk to the parties’ child’s physical, emotional or mental wellbeing which might arise should the child live with the wife or spend significant time with her in the event of the expert opining the wife does have a diagnosed psychiatric illness or other mental health condition.

6. The cost of obtaining the report is to be met by the husband. To that end the husband is permitted to draw the amount required to pay for the report against the mortgage registered against the title to the former matrimonial home. To that extent the provision of order 1 of 2 June 2015 made by the Federal Circuit Court and filed in this Court is suspended only so far as this order permits the further drawing of funds against the subject mortgage and security.

7. The Independent Children's Lawyer is to ensure that sufficient funds are held by the Independent Children's Lawyer to pay for the expert’s report before work is commenced by the expert.

8. The Independent Children's Lawyer may provide to the expert copies of any document which the Independent Children's Lawyer considers will assist the expert in the preparation of the report. The Independent Children's Lawyer is to provide to each of the husband and wife a detailed list which identifies the documents or parts thereof provided to the expert.

Pursuant to section 62G of the Family Law Act a family consultant of this Court be appointed, on an expedited basis, as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the child B, born … 2011, and that in preparing their report to the court, the family consultant be requested to consider matters which will be advised prior to the commencement of interviews by the family consultant in preparing the report.

10. The Independent Children's Lawyer is to prepare a list of matters to be addressed in the family report and provide a draft of same to each of the parties. Each party is to reply with any comment, objection or suggestion within seven days of receipt of same. The Independent Children's Lawyer is to provide a final recommendation of the items to be addressed in the report to the parties and the Associate for Justice Le Poer Trench as soon as practicable thereafter. Failure of a party to respond to the draft list received from the Independent Children's Lawyer within seven days of receipt of same is to be taken by the Independent Children's Lawyer to mean there is no objection to the matters identified in the list.

11. Upon the Family Report being available for release the matter is to be referred by the Docket Registrar to the Case Management Judge in the event there is not at that time a Docket Judge allocated for the case.

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

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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