Nagel & Clay
[2019] FamCA 406
•20 June 2019
FAMILY COURT OF AUSTRALIA
| NAGEL & CLAY | [2019] FamCA 406 |
| FAMILY LAW – CHILDREN – Parenting – Where Family Report previously prepared in matter – where mother seeks alternate single expert be appointed to prepare an updating report – where the father opposes mother’s application – where the Court makes no findings about the mother’s criticisms of the Family Report or the manner in which the Family Report was prepared – where alternate single expert ordered. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Nagel |
| RESPONDENT: | Ms Clay |
| FILE NUMBER: | SYC | 7861 | of | 2015 |
| DATE DELIVERED: | 20 June 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 20 June 2019 |
REPRESENTATION
| SOLICITOR-ADVOCATE FOR THE APPLICANT: | Ms Carter |
| SOLICITOR FOR THE APPLICANT: | Pearson Emerson Meyer Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr O’Ryan QC |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
Orders
By consent, orders be made in accordance with both documents titled “Consent Orders” as signed by the parties and initialled by me, dated today and placed with the papers (and attached hereto and marked Annexure “1”).
I DIRECT that the solicitor for the respondent file a clean certified typescript of the said document, including the variation to Order 1(a) of the orders made by the Honourable Justice Rees on 15 November 2017, within 3 business days of the date of these orders in Microsoft Word format.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth)(“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
Within seven (7) days of today’s date the applicant father submit to the respondent mother or her legal representatives a list of four (4) names of suitably qualified experts to be appointed as a single expert pursuant to Part 15.5 of the Family Rules 2004 (Cth) and seven (7) days thereafter, the respondent mother is to select one (1) name from the list and within twenty-one (21) days of today’s date the parties are to do all things necessary to appoint the selected expert to prepare a Family Report, in respect of the children subject of the proceedings, with such report to address the matters in s.60CC of the Act.
Upon the selection of a single expert the parties are to submit Chambers a proposed Minute of Consent Orders appointing such expert, and if appropriate, such orders may be made in Chambers.
The parties collaboratively prepare a joint Balance Sheet (“the Balance Sheet”) setting out all assets, liabilities and financial resources which the parties assert are relevant to the determination of this matter, with such document to have footnotes which explain the differences between the parties in relation to any disputed items.
For the purposes of preparing the Balance Sheet and unless otherwise agreed, no later than twenty-eight (28) days prior to 25 October 2019, the applicant provide to the respondent a draft joint Balance Sheet, using the form available on the Family Court of Australia website, setting out the asset pool contended for by the applicant and by no later than fourteen (14) days prior to 25 October 2019 the respondent return the Joint Balance Sheet to the applicant having inserted the respondent’s contentions as to the asset pool, the respondent’s asserted values and footnotes to explain any disputed items. Thereafter, the parties are submit the Joint Balance Sheet to Chambers by no later than close of registry filing on 25 October 2019.
The parties, and any lay witnesses they seek to rely upon, file and serve by no later than close of Registry filing on 30 September 2019, one consolidated Affidavit proposed to be relied upon at Final Hearing.
All extant applications be adjourned to 5 November 2019 at 10:00am for mention or callover.
IT IS NOTED THAT:
A.The parties have agreed upon a variation concerning changeover to Order 1(a) of the orders made by the Honourable Justice Rees on 15 November 2017.
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 Nagel & Clay 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 SYDNEY |
FILE NUMBER: SYC7861/2015
| Mr Nagel |
Applicant
And
| Ms Clay |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.
In this matter a Family Report was prepared by Dr E on 1 June 2016. The mother has complained about the report, seeking to impugn its accuracy and the manner in which Dr E prepared the report, since its release in June 2016.
The matter came before me on 20 June 2019 for a Less Adversarial Trial date. In the course of debate, the father made clear that he sought a further report to be prepared by Dr E. The mother, on the other hand, argued that a fresh expert should be appointed.
The father supported the continued involvement of Dr E on the basis that he had knowledge of the matter and that it may be a source of discomfort to the children to be exposed to interviews with a new expert.
The mother, for her part, through evidence filed, contended there were numerous difficulties with Dr E’s report. I make it clear that I can form no view about the mother’s criticisms of the report or the manner in which it was prepared. The assertions that she makes may or may not be reasonably based, and may or may not be accurate.
It is, however, clear that she does not, whether rightly or wrongly, hold any confidence in Dr E as a single expert to prepare a new family report.
However, the existing report is now some 3 years old. It was undisputed that the Family Report process will have to be completed again, including interviews with the children the subject of these proceedings.
Since the Family Report process must be repeated, I have formed the view that on balance, it is more consistent with the best interests of the children, bearing in mind the continued conflict between the parents and the sharply opposing views they each hold about the report of Dr E, for a fresh expert to be appointed to prepare a new report.
I take account of the father’s argument that the children will have to be interviewed again, but it seems to me that, in light of the age of Dr E’s existing report, it can make little difference whether interviews are undertaken by Dr E or a fresh, suitably qualified expert. Moreover, a fresh expert will have the benefit of Dr E’s report, since it forms part of the Court file. Accordingly, I am satisfied that it is appropriate, in the circumstances of this case, to appoint a fresh expert to prepare a Family Report, for the purposes of progressing this matter to Final Hearing.
The mother, in a proposed order, submitted 4 names who she contended were suitably qualified experts. The father, for his part, as the Applicant, seeks dispensation that he submit 3 names of his own for the purpose of one being selected to then be appointed as the single expert. Accordingly, I make the following further orders.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 20 June 2019.
Date: 3 July 2019
Annexure “1”
FAMILY LAW ACT 1975
CONSENT ORDERS
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. SYC7861/2015
BETWEEN MR NAGEL
Applicant – Husband/Father
AND MS CLAY
Respondent – Wife/Mother
BY CONSENT AND BY WAY OF INTERIM ORDER
That order 1(a) of the orders made 15 November 2017 be varied to read as follows: Each Wednesday from 8.00am until 6.00pm on Thursday if it is not during the school term, and each Wednesday from 8.00am until the conclusion of school on Thursday during the school term.
That within 14 days, the husband pay to the wife an amount of $78,000 by way of partial property settlement.
That the wife’s Application in a Case filed 14 September 2017 be dismissed.
That costs be reserved.
That the Court is asked to note the following:
5.1The amount of $78,000 to be paid by the husband to the wife within 14 days is intended to assist the wife meet mortgage payments to the St George Bank with respect to loan number …00 pending the parties attending mediation.
That the mother and father shall attend upon Ms H to undertake confidential and non-reportable counselling.
That the parties each pay one half of the costs of each session they both attend, and each pay the costs of any session they attend individually and each share one half of the costs of any sessions the children (or any of them) attend (if this occurs).
That leave is granted to the parties’ solicitors to provide Ms H with a copy of these orders; the Reasons for Judgement of Justice Rees of 4 August 2016 and 15 November 2017; and the report of Dr E dated 1 June 2016; if requested by Ms H only.
That the counselling to be undertaken by the parties pursuant to these Orders be confidential, with the parties (including the Independent Children’s Lawyer if one is appointed) restrained from seeking the issue of a subpoena or requesting a report on memoranda or any other document or seeking to include in any evidence filed, the details of the counselling undertaken in accordance with Order 1, excluding the details of the attendance or non-attendance by a party on Ms H.
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