Vanetti & Harrison
[2021] FedCFamC1F 367
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vanetti & Harrison [2021] FedCFamC1F 367
File number(s): MLC11706/2019 Judgment of: BENNETT J Date of judgment: 18 November 2021 Catchwords: FAMILY LAW- PARENTING – where mother makes application for a further family report to be prepared after a period of adjournment – where court not apprised of further events which require an updated report – where an updated report can be obtained if, and only if, the report writer is of the view that her assessment of the family would be advantaged by a further assessment.
FAMILY LAW- PARENTING – where children should only be interviewed where necessary.Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 18 November 2021 Place: Melbourne Counsel for the Applicant: Ms Johnson Solicitor for the Applicant: Fair Family Law Counsel for the Respondent: Mr Thompson Solicitor for the Respondent: Melbourne Family Lawyers Counsel for the Independent Children’s Lawyer: Ms Treyvaud Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC11706/2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANETTI
Applicant
AND: MR HARRISON
Respondent
INDEPENDENT CHIDLREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.That this matter remain fixed for final hearing before me on 28 February 2022 at 10.00 am estimated to take 5 days (“the final hearing”).
2.To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue provided that subpoenas are returnable and all documents are inspected by January 2022.
3.Each party file and serve any amended application or response and all further affidavit material or proofs of evidence in support of his/her/their case, NOTING THAT affidavits relied upon for last final hearing date can be relied upon as evidence in chief. The further evidence be filed as follows:-
(a)the applicant mother by not later than 11 January 2022 at 12.00 noon;
(b)the respondent father by not later than 25 January 2022 at 12.00 noon;
(c)the applicant in reply by not later than 1 February 2022 at 12.00 noon.
4.Each party has leave to contact the docket Registrar - email …@fcfcoa.gov.au - to arrange to have this matter listed for mention before herself or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.
5.Not less than 14 days prior to the commencement of the final hearing, the parties determine what, if any, rulings are required as to the admissibility of evidence and notify my Associate – email …@familycourt.gov.au – that the matter requires Court time so that any strike out application may be listed prior to the commencement of the final defended hearing.
6.Any party against whom a ruling is made striking part of that party’s affidavit or that of their witness, must file and serve a copy of the affidavit(s) from which the inadmissible has been redacted and do so by not later than 9:00 a.m. on the next working day after the agreement to strike out or the strike out ruling.
7.Any solicitor / practitioner who prepares an affidavit from which portions are ruled inadmissible and are struck out may be precluded from charging for that part of the affidavit which is struck out in addition to being liable for costs incurred on any strike out application (or a proportionate part thereof). Practitioners must be ready to deal with issues arising from material being struck out of evidence including issues of conflict between the interests of the solicitor and the interests of the client.
8.If a legal practitioner is precluded from charging costs for preparation of material which is struck out, he/she particularise for his/her client the amount of money by which the client’s legal costs will be reduced as a consequence of the material being held to be inadmissible.
9.The independent children’s lawyer arrange for the attendance of Ms B to give evidence in Court (at the joint expense of the parties) and:-
(a)Provide Ms B with the parents’ updating evidence, including expert evidence, by not later than 14 February 2022;
(b)Ask Ms B whether she would benefit from seeing either or both of the children X born 2014 and Y born 2017 to assess how the boys are enjoying their time with the mother and their news generally NOTING THAT any further assessment be at the sole cost of the mother, subject to any adjustment of costs at the final hearing.
10.By not later than 21 February 2022, each party file and serve:-
(a)a case outline document; and
(b)a list of documents to be relied upon by that party –
and send same to my Associate by email – …@familycourt.gov.au.
11.The case outline document summarise that party’s parenting case including, but not necessarily limited to, the following issues:-
(a)Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and
(b)Whether it is the best interests of the children X born 2014 and Y born 2017 to spend equal time with each parent and, if not, why not; and
(c)Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not;
(d)What parenting orders are sought by that party; and
(e)Why the parenting orders sought by that party are in the best interests of the child(ren) having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.
12.By not later than 23 February 2022 the independent children’s lawyer provide to each other party to the proceedings and by email to my Associate:-
(a)a chronology of relevant events;
(b)a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;
(c)a list of documents upon which the independent children’s lawyer intends to rely;
and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.
13.The legal practitioners for the parties ensure that the Electronic Court Book using EBrief Ready has been updated prior to the final hearing.
14.Pursuant to Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, by not later than 25 February 2022, the practitioner for each party file and serve a costs notice in writing to his/her client and provide same by email to my Associate – email [email protected].
15.In the event that this matter resolves prior to the hearing date, the solicitors for the parties and the independent children’s lawyer notify my Associate promptly.
AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vanetti & Harrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex temporeBENNETT J:
This matter comes before me for directions in anticipation of a final hearing, which is scheduled for 28 February 2022. The proceedings concern X, who is seven and a half years old, and Y, who is four years old. The trial was adjourned from July 2021 because of the COVID pandemic and the assessment by all concerned that the final hearing needed to proceed on a face-to-face basis. The period of the adjournment has been, unfortunately, long. I delivered reasons at the time and they are recorded in case natural citation 2021 FamCA 557. Today, the only matter in issue has been whether there should be an updated report by Ms B, a psychologist.
Ms B has done two previous assessments of the family. The most recent being 11 May 2021. The mother says that a further report is necessary to assess the children’s enjoyment of their time with her.
The gist of Ms B’s evidence appears to be that the children enjoy spending time with their mother, providing that she is not distracted or preoccupied with issues about these proceedings or her quest to prove that she is the superior parent. It is, therefore, the mother’s capacity to control the extent to which she becomes preoccupied and distracted from the children that is going to be determinative of their enjoyment of their time with her rather than the duration of the time spent.
At very short notice, we tried to link Ms B into the hearing but she could not be located to definitively answer whether or not, in her view, she would benefit from seeing the children before giving evidence in March 2022. I have left it on the basis that the Independent Children's Lawyer will be responsible for securing Ms B’s attendance at Court but that Ms B’s costs for attending Court and cross-examination will be borne by the parties equally. As to any further assessment, the Independent Children's Lawyer is to ensure that Ms B has the parent’s up to date material by the middle of February and to then ask whether it would benefit her to see the children based on that material.
If Ms B advises the independent children’s lawyer that, in her view, her assessment would benefit from another opportunity to interview family members, those should occur. If not, then there is no need. I am conscious that assessment interviews are distracting for children, onerous for parents and incur further costs. From the child’s perspective, the child may wonder why another interview is occurring when nothing happened after the last interview. Children should be interviewed only when necessary.
If there is to be any further assessment by Ms B, I have ordered that it be at the sole expense of the mother, subject to a right at the final hearing to seek a contribution to those costs from the father. The father has borne the costs of two previous reports under a similar provision that he can, at the final hearing, seek a contribution to those costs from the mother.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 18 November 2021. Associate:
Dated: 16 February 2022
0
0
0