Pitman and Hynes and Anor - [2018] FamCA 760

FAMILY COURT OF AUSTRALIA

PITMAN & HYNES AND ANOR

[2018] FamCA 760

FAMILY LAW – CHILDREN – Parenting – application by mother for children to attend upon a psychiatrist – where the mother relies upon a referral from a general practitioner who has not seen the children for two years – where the application is opposed by the father as the primary carer of the children, the Independent Children’s Lawyer and the Department of Child Safety, Youth and Women – application dismissed..
FAMILY LAW – CHILDREN – Parenting – oral application by mother pursuant to s 121 of the Family Law Act1975 for expert family report to be provided to general practitioner – leave granted.

Family Law Act 1975 (Cth) s 121
APPLICANT:	Ms Pitman

RESPONDENT:

Mr Hynes

INTERVENER:

Department of Child Safety, Youth and Women

FILE NUMBER:

WOC

772

2011

DATE DELIVERED:

28 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

28 August 2018

JUDGMENT OF:

Baumann J

HEARING DATE:

28 August 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter

Carter Farquar Mediation & Family Law

SOLICITOR FOR THE INTERVENER:

Ms L Walsh

Orders

That the mother’s Application in Case filed 23 July 2018 be dismissed.
That the Independent Children’s Lawyer file and serve on each other party no later than 4.00pm on 30 August 2018 an Affidavit setting out the basis upon which Ms B was selected and retained to prepare the updated family report in these proceedings.
That the Applicant mother be granted leave to make an oral application to produce a copy of the family report prepared by Ms B dated 7 August 2018 to her and the children’s, X born … 2003 and Y born … 2004 previous treating general practitioner, Dr C.
That pursuant to s 121 of the Family Law Act1975 the mother be at liberty to publish and provide to Dr C a copy of the family report prepared by Ms B dated 7 August 2018.
That Orders 3, 4, 8, 9 and 10 of the Orders dated 1 February 2018 be discharged.
That the Final Hearing dates of 24, 25 and 26 September 2018 be vacated.
That Order 5 of the Orders dated 1 February 2018 be varied such that the mother file and serve on each other party no later than 4.00pm on 19 October 2018:
(a) an amended Initiating Application setting out her precise minute of interim and final orders sought; and
(b) one (1) consolidated Affidavit of evidence in chief.
That Order 6 of the Orders dated 1 February 2018 be varied such that the father file and serve on each other party no later than 4.00pm on 2 November 2018:
(a) Any amended Response; and
(b) one (1) consolidated Affidavit of evidence in chief in response.
That Order 7 of the Orders dated 1 February 2018 be varied such that the Intervener file and serve on each other party no later than

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

Case: [2018] FamCA 760
Decision Date: 28 August 2018

CaseChat Overview and Summary

In *Pitman and Hynes and Anor*, Baumann J of the Family Court of Australia considered an application by the mother. The proceedings involved disputes between the mother and the father, with an Independent Children’s Lawyer also participating. The specific nature of the dispute, beyond the general context of family law proceedings, is not detailed in the provided text.

The court was required to determine several matters, including whether to dismiss the mother's application filed on 23 July 2018. Additionally, the court needed to address the disclosure of a family report prepared by Ms B to the mother and the children's previous treating general practitioner, Dr C, and the basis for Ms B's selection and retention. The court also had to consider vacating previously set final hearing dates and varying existing orders concerning the filing and service of amended applications, affidavits of evidence, and responses.

Baumann J's reasoning led to the dismissal of the mother's application of 23 July 2018. The court granted the mother leave to make an oral application to provide a copy of Ms B's family report dated 7 August 2018 to herself and the children's former treating general practitioner, Dr C. Pursuant to section 121 of the *Family Law Act 1975*, the mother was permitted to publish and provide this report to Dr C. The court also discharged certain previous orders and vacated the final hearing dates. Further, the court varied existing orders to allow for amended initiating applications and consolidated affidavits of evidence to be filed and served by the mother, father, and intervener by specified dates. The proceedings were adjourned for an interim hearing.

Orders

Orders of the court

That the mother’s Application in Case filed 23 July 2018 be dismissed.

That the Independent Children’s Lawyer file and serve on each other party no later than 4.00pm on 30 August 2018 an Affidavit setting out the basis upon which Ms B was selected and retained to prepare the updated family report in these proceedings.

That the Applicant mother be granted leave to make an oral application to produce a copy of the family report prepared by Ms B dated 7 August 2018 to her and the children’s, X born … 2003 and Y born … 2004 previous treating general practitioner, Dr C.

That pursuant to s 121 of the Family Law Act 1975 the mother be at liberty to publish and provide to Dr C a copy of the family report prepared by Ms B dated 7 August 2018.

That Orders 3, 4, 8, 9 and 10 of the Orders dated 1 February 2018 be discharged.

That the Final Hearing dates of 24, 25 and 26 September 2018 be vacated.

That Order 5 of the Orders dated 1 February 2018 be varied such that the mother file and serve on each other party no later than 4.00pm on 19 October 2018:

(a) an amended Initiating Application setting out her precise minute of interim and final orders sought; and

(b) one (1) consolidated Affidavit of evidence in chief.

That Order 6 of the Orders dated 1 February 2018 be varied such that the father file and serve on each other party no later than 4.00pm on 2 November 2018:

(a) Any amended Response; and

(b) one (1) consolidated Affidavit of evidence in chief in response.

That Order 7 of the Orders dated 1 February 2018 be varied such that the Intervener file and serve on each other party no later than 4.00pm on 9 November 2018 any Affidavit in response.

10.

That these proceedings be adjourned for Interim Hearing at 9.30am on 28 November 2018 in the Family Court of Australia at Brisbane.

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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