Phillips and Walker - [2016] FamCA 719

FAMILY COURT OF AUSTRALIA

PHILLIPS & WALKER

[2016] FamCA 719

FAMILY LAW – INTERIM PARENTING – procedural – rule in Rice & Asplund – principle that child litigation cannot go on indefinitely – when permissible to have further proceedings – family report ordered preparatory to determination of Rice & Asplund issue.

APPLICANT:

Ms Phillips

RESPONDENT:

Mr Walker

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4576

2010

DATE DELIVERED:

12 August 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

12 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Phillips

SOLICITOR FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Walker

SOLICITOR FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kent-Hughes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday & Associates

Orders

IT IS DIRECTED THAT

1.The s 67ZW response from the Department of Health and Human Services dated 11 April 2016 (2 pages) be copied and a copy be handed to the mother, the father and to counsel for the independent children’s lawyer.

IT IS ORDERED THAT:

2.This matter be referred to Registrar Field to be fixed for hearing as a threshold issue following the release of the family report provided for in paragraph 3 of this Order.
3.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared. For that purpose the parties and child B born … 2009 (“the child” “B”) attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 14 November 2016 and be released by not later than 28 November 2016 AND IT IS NOTED that there are 3 previous family reports on the Court filed dated 14 September 2010, 26 April 2013 and 21 February 2014.
4.The family report deal with the following matters:-
a)      any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that may affect the weight that the court should place on those views;
b) the matters set out in s 60CC of the Family Law Act;
c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
d)      an observation of each of the parties with the child (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the child);
e)      whether it is in the child’s benefit for there to be further proceedings concerning his parenting arrangements:
f)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings,…

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.

Continue reading Phillips and Walker

Details

AGLC: Phillips and Walker [2016] FamCA 719
Case: [2016] FamCA 719
Decision Date: 12 August 2016

CaseChat Overview and Summary

In the matter of *Phillips and Walker*, Bennett J of the Family Court of Australia was required to make orders concerning the parenting arrangements for the child, B. The proceedings involved the mother and father of B, and an independent children's lawyer. The court was dealing with a dispute regarding the child's welfare and the appropriate parenting orders.

The primary legal issues before the court were how to best ascertain the child's best interests, the scope of information to be considered in that determination, and the appropriate procedural steps to facilitate a resolution. Specifically, the court needed to determine the content and purpose of a family report, the extent to which certain documents should be disclosed to the parties, and the future conduct of the proceedings.

Bennett J directed that a full family report be prepared, outlining specific matters for the family consultant to address, including the child's views, the parents' capacity to cooperate, observations of the parties with the child, and recommendations for resolution. The court also directed the disclosure of a section 67ZW response from the Department of Health and Human Services to all parties. Crucially, the court discharged a previous order authorising the release of documents produced by C Health, limiting their inspection at that stage to the independent children's lawyer, while reserving for further consideration the release of these documents to other parties. The matter was referred to a Registrar to be fixed for hearing as a threshold issue following the release of the family report.

Orders

Orders of the court

IT IS DIRECTED THAT

1. The s 67ZW response from the Department of Health and Human Services dated 11 April 2016 (2 pages) be copied and a copy be handed to the mother, the father and to counsel for the independent children’s lawyer.

IT IS ORDERED THAT:

2. This matter be referred to Registrar Field to be fixed for hearing as a threshold issue following the release of the family report provided for in paragraph 3 of this Order.

3. Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared. For that purpose the parties and child B born … 2009 (“the child” “B”) attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 14 November 2016 and be released by not later than 28 November 2016 AND IT IS NOTED that there are 3 previous family reports on the Court filed dated 14 September 2010, 26 April 2013 and 21 February 2014.

4. The family report deal with the following matters:-

a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s 60CC of the Family Law Act;

c) an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d) an observation of each of the parties with the child (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the child);

e) whether it is in the child’s benefit for there to be further proceedings concerning his parenting arrangements:

f) recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child’s best interest to the greatest extent possible.

5. For the avoidance of doubt the family consultant be and is hereby authorised to have reference to:-

a) all documents filed in these proceedings;

b) any documents produced on subpoenae and released for inspection by all parties;

c) any documents provided to him/her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d) any documents or things referred to in this Order.

6. The Order made on 9 June 2016 currently authorising the release of the documents produced by C Health in compliance with a subpoena issued on behalf of the father be and is hereby discharged with the effect that documents are not released for inspection pursuant to that Order. The documents produced by C Health be released for inspection by the independent children’s lawyer only at this stage.

7. I reserve for consideration by myself or another judicial officer whether the documents from C Health should be released for inspection by other parties following inspection by the independent children’s lawyer.

8. In the event that the independent children’s lawyer proposes to submit that the documents from C Health not be inspected by any other party, he provide each other party to the proceedings with notice of that decision and a summary of contentions of fact and law.

IT IS DIRECTED:

9. That my reasons for decision be transcribed and when settled a copy be placed on the Court file and provided to the parties.

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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