SCVG & KLD - [2014] FamCA 898

FAMILY COURT OF AUSTRALIA

SCVG & KLD

[2014] FamCA 898

FAMILY LAW – Case management. Issue about availability and replacement of a single expert. Concern expressed by a party that the witness may have had involvement with one party.

Family Law Act 1975 (Cth)

Fagenblat & Feingold Partners Proprietary Limited [2001] VSC 454

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

15 August 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Dowd

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Macphillamy

SOLICITOR FOR THE RESPONDENT:

Macphillamy’s

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Yeend, Yeend & Associates

Orders

That the previous order for the appointment of Dr H and the requirement of the parties to attend upon him is discharged.
That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties attend upon and at the direction of Dr E for the purposes of a psychiatric examination and if necessary, the preparation of a family report.
That Dr E may require any party to attend with, or bring in, a child whose interest may be affected by the proceedings.
That Dr E note the terms of reference relating to the previous order relating to the attendance on Dr H.
That the parties have general liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD 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: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In this particular application, the matter is listed for trial shortly. An order was made, not by me, for the appointment of a psychiatrist. The terms of the appointment and examination were, apparently, agreed. As a result of me having been asked to hear this trial, I have set the timetable and the expert that was proposed and, apparently, agreed, cannot meet the timetable.
This is a case, from what I have read, which has a limited issue and needs to be heard reasonably soon. The dispute here is relatively simple. The Independent Children’s Lawyer who has come on the record and who was not a party to the appointment of the previous expert, has now proffered another person who is available and the father agrees to that appointment but the mother has three grounds for resisting it. Those three grounds are that at a hearing before the Deputy Chief Justice, a statement was made by counsel for the father that the father had seen the proposed expert. That has been to some extent resolved by a statement that what was said was incorrect. There is absolutely nothing that would indicate that the proposed witness, Dr E, has indeed had anything…

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.

Keep reading for free

Create a free CaseChat account to read SCVG & KLD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCA 898
Decision Date: 15 August 2014

CaseChat Overview and Summary

The parties in this matter, SCVG and KLD, brought their dispute before Cronin J of the Family Court of Australia. The proceedings concerned the welfare of children and the court's previous orders regarding their assessment.

The central legal issue before the court was whether to discharge an existing order for a psychiatric examination by Dr H and, if so, to make a new order for a psychiatric examination by Dr E, including provisions for the attendance of children.

Cronin J discharged the previous order appointing Dr H and requiring the parties to attend upon him. The court then made a new order pursuant to s 62G(2) of the *Family Law Act 1975* (Cth), directing the parties to attend upon Dr E for a psychiatric examination and the potential preparation of a family report. The court further stipulated that Dr E could require any party to attend with, or bring in, a child whose interests might be affected by the proceedings, and that Dr E should note the terms of reference from the prior order concerning Dr H.

The court ordered that the parties have general liberty to apply.

Orders

Orders of the court

That the previous order for the appointment of Dr H and the requirement of the parties to attend upon him is discharged.

That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties attend upon and at the direction of Dr E for the purposes of a psychiatric examination and if necessary, the preparation of a family report.

That Dr E may require any party to attend with, or bring in, a child whose interest may be affected by the proceedings.

That Dr E note the terms of reference relating to the previous order relating to the attendance on Dr H.

That the parties have general liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.