Raymond and Harold - [2008] FamCA 553

FAMILY COURT OF AUSTRALIA

RAYMOND & HAROLD

[2008] FamCA 553

FAMILY LAW - ORDER FOR FAMILY CONSULTANT REPORT - ADJOURNED LAT

Family Law Act 1975 (Cth)

APPLICANT:

MR RAYMOND

RESPONDENT:

MS HAROLD

INDEPENDENT CHILDREN’S LAWYER:

MR CRABTREE

FILE NUMBER:

MLF

3001

2006

DATE DELIVERED:

16 JULY 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

16 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CROZIER-DURHAM

SOLICITOR FOR THE APPLICANT:

T.J. MULVANY & CO

COUNSEL FOR THE RESPONDENT:

MR BEAR

SOLICITOR FOR THE RESPONDENT:

MAHONYS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR CRABTREE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DONALD S. LAMPE

ORDERS

IT IS ORDERED:

THAT pursuant to s62G(2) a Family Report be prepared by a consultant nominated by the Director of Court Dispute Services as to all relevant parenting issues concerning or impacting upon S born … November 2002 and for that purpose to confer with the parties, and S if appropriate, and consider all matters and outcomes in his best interest and have regard to:
(a)       whether there be a shared equal parenting or sole parenting order;
(b)       with whom should S live;
(c)what time should otherwise be spent by a parent with S and the level of communication;
(d)       the appropriate changeover venue for collection and delivery;
(e)how the consent orders of 30 November 2007 have operated for the benefit of S;
(f)the relationship of the parents and how that can be better harmonised pursuant to paragraph 6 of those consent orders.
THAT a written report be prepared by the Family Consultant for release to the parties and the court on or before 2 September 2008.
THAT the father forthwith provide to his solicitor, who is to provide to the Independent Children’s Lawyer, the name and contact details of any medical or psychological professional with whom he has engaged over the past ten years and that leave be granted to the Independent Children’s Lawyer to issue a subpoena(s) for the provision to the court of all such records and that upon lodgement with the Court they be released to the Independent Children’s Lawyer.
THAT the medical records of the mother now before the court by subpoena be released to the Independent Children’s Lawyer for reading and assessment, and discussion between legal practitioners only, with the intent that all matters of and relevant to S and his best interests and all issues of parenting capacity are to be disclosed to the Family Consultant and the court.
RESERVE liberty to all parties to apply generally on these related subpoena and medical health issues, but only upon proper notice to all parties and at a time appointed by the court.
THAT for the purposes of preparation of the report the Family Consultant read and have regard to the earlier report of Ms D, Psychologist, and any updated responses that either the mother or father may wish to give in response thereto.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court…

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 Raymond and Harold

Details

AGLC: Raymond and Harold [2008] FamCA 553
Case: [2008] FamCA 553
Decision Date: 16 July 2008

CaseChat Overview and Summary

In the matter of Raymond and Harold, Young J of the Family Court of Australia made orders concerning parenting issues for a child, S, born in November 2002. The proceedings involved the parents of S and an Independent Children's Lawyer. The court's primary concern was to ensure the best interests of S were met, particularly in light of existing consent orders made on 30 November 2007.

The court was required to determine various parenting issues, including whether a shared equal or sole parenting order was appropriate, with whom S should live, the time S should spend with each parent, the level of communication between parents, the appropriate changeover venue, and how the existing consent orders had operated for S's benefit. Additionally, the court considered the relationship between the parents and how it could be harmonised, as contemplated by paragraph 6 of the consent orders. The court also addressed the disclosure of medical and psychological records pertaining to both parents.

Young J ordered that a Family Report be prepared by a consultant nominated by the Director of Court Dispute Services, who was to confer with the parties and S, if appropriate, to consider all matters and outcomes in S's best interests. The report was to address the specific parenting issues outlined above and was to be completed by 2 September 2008. The court further ordered the father to provide details of any medical or psychological professionals he had engaged with over the past ten years, granting leave for the Independent Children's Lawyer to issue subpoenas for these records. Medical records of the mother, already before the court, were also to be released to the Independent Children's Lawyer for assessment and discussion, with the intent that all relevant matters concerning S's best interests and parenting capacity be disclosed to the Family Consultant and the court. The Family Consultant was directed to consider an earlier report by a psychologist and any updated responses from the parents. The matter was listed for mention on 24 September 2008.

Orders

Orders of the court

IT IS ORDERED:

THAT pursuant to s62G(2) a Family Report be prepared by a consultant nominated by the Director of Court Dispute Services as to all relevant parenting issues concerning or impacting upon S born … November 2002 and for that purpose to confer with the parties, and S if appropriate, and consider all matters and outcomes in his best interest and have regard to:

(a) whether there be a shared equal parenting or sole parenting order;

(b) with whom should S live;

(d) the appropriate changeover venue for collection and delivery;

(e) how the consent orders of 30 November 2007 have operated for the benefit of S;

(f) the relationship of the parents and how that can be better harmonised pursuant to paragraph 6 of those consent orders.

THAT a written report be prepared by the Family Consultant for release to the parties and the court on or before 2 September 2008.

THAT the father forthwith provide to his solicitor, who is to provide to the Independent Children’s Lawyer, the name and contact details of any medical or psychological professional with whom he has engaged over the past ten years and that leave be granted to the Independent Children’s Lawyer to issue a subpoena(s) for the provision to the court of all such records and that upon lodgement with the Court they be released to the Independent Children’s Lawyer.

THAT the medical records of the mother now before the court by subpoena be released to the Independent Children’s Lawyer for reading and assessment, and discussion between legal practitioners only, with the intent that all matters of and relevant to S and his best interests and all issues of parenting capacity are to be disclosed to the Family Consultant and the court.

RESERVE liberty to all parties to apply generally on these related subpoena and medical health issues, but only upon proper notice to all parties and at a time appointed by the court.

THAT for the purposes of preparation of the report the Family Consultant read and have regard to the earlier report of Ms D, Psychologist, and any updated responses that either the mother or father may wish to give in response thereto.

THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties and to the Family Consultant.

THAT the matter be otherwise listed for mention before Young J on 24 September 2008 at 10.00 a.m.

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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