FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REID & REID | [2010] FMCAfam 1488 |
| FAMILY LAW – Shared cost order for expert – independent children’s lawyer to contribute – discretion of the Court in relation to remuneration and expenses of court expert under Court Rules – distinction between order for ‘remuneration and expenses of court expert’ under court rules and ‘costs’ under s.117 of Family Law Act. |
| Family Law Act 1975, ss.4(1), 68L, 68LA,117(1) & (2) Federal Magistrates Act1999, ss.3(2),15, 43(1), 43(2) Family Law Rules2004, Part 15.5, r.15.47 Federal Court Rules 1979, Order 34.r 5(2) & 5(4) Federal Magistrates Court Rules2001, r.1.03, Division 15.2, r.15.11, Dictionary Family Law Regulations1984, reg.3 |
| Applicant: | MR REID |
| Respondent: | MS REID |
| File Number: | CAC 152 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 18 November 2010 |
| Date of Last Submission: | 18 November 2010 |
| Delivered at: | Canberra |
| Delivered on: | 18 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Godtschalk |
| Solicitors for the Applicant: | Harris Lieberman, Wodonga VIC |
| Counsel for the Respondent: | Self represented litigant |
| Solicitors for the Independent Children’s Lawyer | Legal Aid, NSW (Wagga Wagga) |
ORDERS
The final hearing listed on 7th and 8th of February 2011 be vacated.
The matter be listed for final hearing for 2 days commencing on 16th May 2011 at 10:00am in Wagga Wagga before Federal Magistrate Brewster.
Pursuant to Chapter 15, Division 15.2 of the Federal Magistrate Court Rules 2002 Mr P of Mr P & Associates of [address omitted], Melbourne in the State of Victoria be appointed to enquire into and report matters pertaining to the welfare of the children [X] born [in] 1994, [Y] born [in] 1997 and [Z] born [in] 2002 (“the children”).
For the purposes of preparing the Report, the parties and the children shall attend upon Mr P on 1st February 2011. In the event Mr…
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- Reid and Reid [2010] FMCAfam 1488
- Case
- [2010] FMCAfam 1488
- Decision Date
CaseChat Overview and Summary
The court ordered an investigation by Mr P of Mr P & Associates to examine various aspects of the children's welfare. This included assessing the risk of harm from abuse, neglect, or family violence, and determining the benefits of the children maintaining relationships with both parents and each other. The court also required Mr P to consider the nature of relationships between the children, their parents, and other significant adults. Additionally, the court directed Mr P to evaluate any psychological or psychiatric conditions of the parents, their treatment, and the impact of these conditions on their parenting abilities. The report was to be shared equally among the parties involved.
The court vacated the original final hearing dates and rescheduled the matter for a two-day hearing in May 2011. It mandated that the parties and children attend an appointment with Mr P on February 1, 2011, and comply with any requests for additional attendees. The court ordered that the cost of Mr P's report be shared equally between the Applicant, the Respondent, and the Independent Children’s Lawyer. Further, the court set specific procedural rules for the final hearing, including the submission of affidavits, case outlines, and witness lists, and stipulated that evidence in chief would primarily be by affidavit with limited scope for oral testimony.
Orders
Orders of the court
1.
The final hearing listed on 7th and 8th of February 2011 be vacated.
2.
The matter be listed for final hearing for 2 days commencing on 16th May 2011 at 10:00am in Wagga Wagga before Federal Magistrate Brewster.
3.
Pursuant to Chapter 15, Division 15.2 of the Federal Magistrate Court Rules 2002 Mr P of Mr P & Associates of [address omitted], Melbourne in the State of Victoria be appointed to enquire into and report matters pertaining to the welfare of the children [X] born [in] 1994, [Y] born [in] 1997 and [Z] born [in] 2002 (“the children”).
4.
For the purposes of preparing the Report, the parties and the children shall attend upon Mr P on 1st February 2011. In the event Mr P requests the attendance of any other adult who is significant in the lives of the children, the parties are to do all things necessary to cause that person or persons to attend on Mr P as requested by Mr P.
5.
Mr P shall be requested to consider the following matters in the preparation of his Report to the Court:-
(a) Whether the children are at risk of physical or psychological harm from being subjected or exposed to abuse, neglect or family violence and if so, how best to protect them from that risk of harm.
(b) The benefits to the children of having a meaningful relationship with each of the parties.
(c) The benefits to the children of having a meaningful relationship with each other.
(d) The nature of the relationship between:-
(i) The children
(ii) The children and each of the parties.
(iii) The children and any other significant person including their grandparents.
(e) Whether either of the parties suffers from a psychological and/or psychiatric condition and if so:-
(i) The nature of that condition.
(ii) Any treatment recommended.
(iii) Whether the condition affects that party’s capacity to care for the children and if so in what way.
(f) The attitudes to the responsibilities and duties of parenthood evinced by each of the parties.
(g) The parties’ willingness and any significant persons willingness to facilitate and encourage a close and continuing relationship between the children and the other parent.
(h) Any other issues the Court expert considers relevant.
6.
The cost of the expert’s Report prepared by Mr P be shared equally between the Applicant Father, the Respondent Mother and the Independent Children’s Lawyer.
NOTING THAT THE MATTER IS LISTED FOR FINAL HEARING IN ACCORDANCE WITH ORDER 1 ABOVE, IT IS FURTHER ORDERED IN CHAMBERS THAT:
7.
Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Magistrates Court Rules 2001.
8.
The Applicant Father pay any hearing fee or seek a waiver of the fee by 2nd May 2011.
9.
Each party file and serve by 22nd April 2011:
(a) one affidavit setting out any further evidence in chief;
(b) one affidavit of each lay witness intended to be relied upon at trial.
10.
The parties cannot rely on any material filed after 22nd April 2011 without the leave of the Court.
11.
Each party file and serve on each other party by 9th May 2011 a case outline setting out:
(a) the final orders sought; and
(b) a list of documents intended to be relied upon at trial.
It is requested that a copy of the Orders Sought are emailed to associate.fmbrewster@fmc.gov.au prior to the commencement of the hearing.
12.
If an Independent Children’s Lawyer has been appointed, this lawyer will prepare the chronology above, to be settled with the parties, by
9th May 2011.
13.
The parties are to notify any Family Consultant or other Court appointed expert required to give evidence at the trial a minimum of
6 weeks prior to trial.
14.
Subpoenas be returnable no later than 2nd May 2011.
AND IT IS NOTED THAT a Compliance Check-sheet will be forwarded to the parties’ legal representatives no less then two weeks before the final hearing to be returnable five working days thereafter and upon receipt, if necessary, the matter will be listed for pre-hearing directions.
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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