O’Connor and O’Connor

[2013] FamCA 771

FAMILY COURT OF AUSTRALIA

O’CONNOR & O’CONNOR [2013] FamCA 771

FAMILY LAW – PROCESS AND PROCEDURE – Ruling

Family Law Act 1975 (Cth)

APPLICANT: Mr O’Connor

RESPONDENT: Ms O’Connor

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 4911 of 2012

DATE DELIVERED: 4 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Wilson
SOLICITOR FOR THE APPLICANT:	Randles Cooper & Co Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR  FOR THE RESPONDENT: Lander & Rogers

INDEPENDENT CHILDREN’S LAWYER Ms Harris; Victoria Legal Aid

Orders

1. That all applications for final orders be adjourned for hearing before Justice Cronin as the 7^th case in the list commencing on 6 February 2014 but not before 24 February 2014 at 10 am as a five day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That there be liberty to apply on short notice.

3. That by 4 pm on 24 January 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 financial statement 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 24 January 2014.

5. That by 4 pm on 7 February 2014 the 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 February 2014 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4 pm on 20 February 2014 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

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

9. That prior to 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.

10. That the parties and the child attend upon and at the direction of Dr B for the purposes of the preparation of a family report at a time to be arranged by Dr B.

AND THE COURT NOTES the mother has concerns about this family report being undertaken having regard to what she says was the impact on D on the last occasion that a report was undertaken by Dr B.

1. That the costs of the report undertaken by Dr B be at the joint expense of the parties.

2. 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.

3. 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.

4. 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; and

   (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.

5. That the practitioners for the parties file and serve electronically to … by 4 pm on 20 February 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; and

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

BY CONSENT OF THE PARTIES:

1. That all parties do all acts and things necessary to arrange and attend:

   (a)       upon Ms C psychologist as reasonably directed by Ms C to be advised of the psychological and emotional difficulties experienced by the child D born … 2004;

   (b)       upon a senior family therapist as nominated by the Independent Children’s Lawyer, and as reasonably directed by said therapist for the purposes of undertaking family therapy.

2. That the parties share equally the costs of attendances upon Ms C and the nominated family therapist.

3. That the parties give all necessary authorities to permit the family therapist to speak with and obtain information regarding the therapy of the child from Ms C.

4. That the family therapy be reportable counselling, and a report be provided to the Independent Children’s Lawyer at the request of the Independent Children’s Lawyer, the cost of such report to be shared by the parties.

BY CONSENT OF THE HUSBAND AND WIFE:

1. That the wife make available the real property for the purposes of a valuation by the nominated valuer of the husband at a time to be arranged between the solicitors.

2. That 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 NOTED that publication of this judgment by this Court under the pseudonym O’Connor & O’Connor 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 4911 of 2012

Mr O’Connor

Applicant

And

Ms O’Connor

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I will put on the record some reasons briefly.  This is an application in which minutes of proposed orders have been provided to me by counsel for the Independent Children's Lawyer.  The husband consents to all of the orders but the wife objects to two orders.  I am setting this matter down for trial February in relation to both parenting and property matters, and there has been considerable discussions as to the nature of the parenting dispute. 

2. The two matters about which the wife has a concern, relate to the question of the parties (who are agreeing to go to see a therapist prior to filing their affidavit material) having to discuss the case in the circumstances with the therapist having a copy of the affidavit of Dr B.  In my view it would not be appropriate to make that order because the family therapist may very well be distracted from the task that the therapist has to fulfil which is namely to find a solution to the problem between the parties in relation to the their child. 

3. The second issue that is in dispute relates to Dr B preparing an updated family report.  The wife has indicated that subsequent to the child seeing Dr B in 2012 the child was quite disturbed.  Dr B is a very experienced child psychiatrist and obviously made a decision on the day not to interview the child in the presence of his father, and that is something about which I would respect the expert’s view.  However, it is not my function to decide what the expert should or should not do in this case, particularly as a considerable period of time has elapsed since the last attendance. 

4. I understand that Dr B’s views may be at odds with the child psychiatrist who is indeed treating the child, but being aware that professionals do communicate with each other at that high level, I would have expected that Dr B would contact Professor E just to see what his views were.  Ultimately as an expert and a forensic psychiatrist, it is a matter for Dr B to decide as to exactly what role he plays and how he sees he will best be able to give an opinion to the court.  On that basis I will make an order that Dr B prepare a report at the joint expense of the parties, and I will have those reasons transcribed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 September 2013.

Associate: 

Date:  27 September 2013