WALDROP & CHATELET

[2014] FamCA 1017

FAMILY COURT OF AUSTRALIA

WALDROP & CHATELET [2014] FamCA 1017

FAMILY LAW – CHILDREN – Family report – consideration of whether a previous family consultant should prepare the report.

Family Law Act 1975 (Cth)

APPLICANT: Ms Waldrop

RESPONDENT: Mr Chatelet

INDEPENDENT CHILDREN’S LAWYER: Perry Weston

FILE NUMBER: MLC 7091 of 2008

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ilias

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Paterson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Perry Weston

ORDERS

IT IS ORDERED THAT

1. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the children D born … 2000, E born … 2002, F born … 2005 and G born … 2007 attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry (not Ms K) for the purposes of the preparation of a family report to be completed and released by 14 November 2014 AND IT IS DIRECTED THAT if practicable the family consultant interview the adult children of the marriage A, B and C.

2. The Independent Children’s Lawyer be permitted to consult the children’s school counsellors at VC School.

3. Until further order the father and the mother, their servants and agents, be and are hereby restrained from discussing these proceedings, and in particular any discussions between the Independent Children’s Lawyer and the children’s school counsellors, with or in the presence or hearing of the children.

4. The determination of the following issues be reserved for the mention on

   
   

   2 December 2014:

   a)the issue of subpoenas to give evidence or produce documents addressed to the children’s school counsellors; and

   b)the filing of affidavits sworn by the adult children.

IT IS ORDERED BY CONSENT THAT

1. The father and the mother attend upon Dr N, psychiatrist, for the purposes of a psychiatric assessment and report, the cost of same to be borne equally by the parties AND IT IS REQUESTED by the parties that Victoria Legal Aid fund the cost of the mother’s report.

IT IS FURTHER ORDERED THAT

1. All applications for final orders be adjourned for hearing before Justice Macmillan as the first matter at 10.00 am on 27 January 2015 (as a three day matter.)

2. The matter be listed for mention before Justice Macmillan at 9.30 am on 2 December 2015.

3. By 4.00 pm on 7 November 2014 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

4. By 4.00 pm on 28 November 2014 the respondent file and serve upon all other parties the affidavits of evidence in chief of all witnesses relied upon excluding affidavits sworn by the adult children (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

5. By 4.00 pm on 12 December 2014 the applicant file and serve any affidavit in reply to the affidavits of the respondent.

6. By 4.00 pm on 28 November 2014 the Independent Children’s Lawyer file and serve any affidavit to be relied upon.

7. No party file any further material other than as provided by these orders without leave of the Court.

8. Prior to the commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

9. Subject to paragraph 4(a) hereof, all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

10. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

11. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

12. The applicant pay all setting down and trial fees by 4.00 pm on 1 December 2014 or obtain the requisite waiver thereof.

13. The practitioners and/or the parties in the event that they are not legally represented file and serve electronically to Justice Macmillan’s Associate by 4.00 pm on 23 January 2015 the following:

    a)a concise set of orders to be sought if different from those already filed;

    b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    c)a list of objections to evidence upon which rulings are required, if any; and

    d)a bullet-point summary of argument in relation to the legal and factual issues in dispute.

14. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

15. The practitioners and/or the parties in the event that they are not legally represented be at liberty to approach Justice Macmillan’s Associate, …, via email for an urgent listing of the matter if required.

AND IT IS NOTED BY CONSENT THAT

The Independent Children’s Lawyer has made enquiries of Dr N’s rooms on 5 August 2014 and confirmed Dr N can see both parties in mid-October 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldrop & Chatelet 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: MLC 7091 of 2008

Ms Waldrop

Applicant

And

Mr Chatelet

Respondent

And

Independent Children’s Lawyer

REASONS

1. This matter was listed for a first day of hearing before me on 5 August 2014.  The matter has a long history of litigation before this court and the parties are once more embroiled in litigation in circumstances where the children the subject of these proceedings who live with the father have not had any contact with the mother since mid-2013. The children the subject of these proceedings are D, now 14 years of age, E, now 11 years of age, F, now 9 years of age, and G, now almost 7 years of age. 

2. There are three children of the marriage who are over the age of 18: A who is 20 years of age, B who is 19 years of age, and C who is 18 years of age. 

3. The mother’s case is that the children should continue to live with the father and spend time with her from the conclusion of school on Thursday until the commencement of school on Monday each alternate week and from the conclusion of school on Wednesday until the commencement of school on Friday in the other week. The father’s case is that upon the children turning 16 years of age they spend time with the mother according to their wishes. 

4. Although the parties agree that a family report should be prepared, they cannot agree upon who should prepare that report.  The usual practice when a report is to be ordered is that an order is made for that report to be prepared by a family consultant nominated by the Director of Child Services of this Registry of the Court.  Depending on the circumstances of the particular case that order might include a request for the appointment of a particular family consultant if it is practical to do so. Generally speaking, parties cannot pick and choose a family consultant. 

5. During the course of the proceedings before this court, the court has had the benefit of two detailed reports prepared by Ms W, who was at the time the reports were written, a family consultant employed by the court.  Ms W’s reports were released on 9 December 2008 and 30 June 2009.  The court has also had the benefit of a section 11F assessment prepared by Ms K dated 14 March 2013. The previous involvement of a particular family consultant might, depending on the circumstances, be the basis of a request that the same family consultant be appointed to prepare any further family report that is ordered to be prepared. 

6. It was submitted by counsel for the mother that the family report should be prepared by someone other than Ms K.  Her primary position was that it should be prepared by Ms W.  Although the father had indicated that he would consent to Ms W preparing the updated report, it is fair to say that his primary position and preferred option was that it should be prepared by Ms K.

7. Although I was of the preliminary view that it might be appropriate for Ms W to prepare the family report on this occasion given that she has already prepared two earlier family reports, she is no longer an employee of the court and that is not an option in this case. 

8. Although the father’s primary submission is based upon Ms K’s familiarity with the matter given her earlier report, based upon the summary he prepared in anticipation of the first day of hearing and his submissions it is clear that he is of the view that Ms K would have a better understanding of what he considers to be the issues in dispute than a new family consultant, or for that matter, Ms W.

9. Counsel for the mother submitted that the mother perceives Ms K to be biased against her.  Although she submitted that the mother alleges that Ms K made statements to her which she said were evidence of that bias, she has not adduced any evidence of those statements.  I am not in a position to, and make no criticism of, Ms K.  The absence of any actual bias does not, of course, mean that the mother does not perceive there to be some bias.  Although I am not in a position to determine whether there is a reasonable basis for the mother’s view, I am also mindful of the sensitive nature of this matter and the fact that it is the mother who is the one who has not had any contact with the children for almost 18 months.

10. I have had regard to the fact that Ms K has had a previous involvement in the matter, however it is almost 18 months since she released her section 11F report.  The section 11F report is by its very nature less comprehensive than a family report.  In the intervening period, Ms K would have seen many families and prepared many reports.  It is quite possible that Ms K would not have a detailed memory of the circumstances of this case independent of her section 11F report.  In those circumstances, any advantage she may have over any other family consultant is likely to be less significant.  Any family consultant appointed to prepare the report will have the opportunity to read the reports of both Ms W and Ms K and will be aware of their observations and recommendations at the time they prepared their respective family reports and the section 11F assessment. 

11. I have also taken into account any detriment to the children as a result of the appointment of a family consultant other than Ms K.  Given the nature of the section 11F assessment and the fact that the children’s contact with Ms K was limited to the one appointment in March 2013, I am satisfied in all of the circumstances of this case that the welfare of the children will not be prejudiced by the introduction of another family consultant.

12. In the particular circumstances of this case and weighing up the positions and possible prejudice or disadvantage to both parties, I am satisfied that the potential prejudice to the mother in proceeding on the basis of a report prepared by someone she, whether rightly or wrongly, perceives to be biased outweighs any prejudice to the father of having another family consultant, similarly qualified and with access to all the relevant material, appointed to prepare a family report, particularly in circumstances where there is no guarantee in any event that Ms K would be the family consultant appointed to prepare the family report.

13. I am satisfied that the appointment of a new family consultant will not prejudice the court’s ability to identify the issues and to determine the matter.  To the contrary, I also see some merit in circumstances such as these, where there has been extensive litigation over many years and where the arrangements with respect to the children have broken down after the release of the section 11F assessment, in the court having the benefit of a fresh set of eyes. In all of the circumstances I propose to order that a family report be prepared by someone other than Ms K.

14. The other issues that arose during the course of the hearing before me were the level of involvement of the adult children in the proceedings and whether or not the Independent Children’s Lawyer (“the ICL”) should be permitted to speak to the school counsellors currently engaged in counselling the children the subject of these proceedings. 

15. Division 12A of Part VII of the Family Law Act1975 (Cth) sets out the principles for conducting child-related proceedings. The first of those principles is that the court is to consider the needs of the child or children concerned and the impact that the conduct of the proceedings may have on that child or children.

16. The father initially submitted that the ICL should not be permitted to speak to the children’s counsellors as he wanted to preserve that counselling environment as a safe one for the children. Those concerns must be weighed up against the need for the ICL to be fully appraised of all the issues relating to the children’s welfare, particularly in circumstances where the children have expressed to ICL their wish to spend time with the mother and the weight that should be given to those wishes are in question.

17. However, it is in my view important that the children are not told of any approach made by the ICL to their respective counsellors nor is there any necessity for them to be told, and I propose to make an order restraining the parties from informing the children of any proposal to contact or any contact made by the ICL with the children’s counsellors. The father ultimately consented to my making an order in these terms on the basis that I would reserve the question of whether or not a subpoena should issue to the children’s counsellors to produce documents or give evidence.  I propose to do so.

18. During the hearing, I was made aware by counsel for the mother that two of the adult children were present in the body of the court.  I was also advised by the father that he proposed to file affidavits in support of his case sworn by the three adult children. 

19. Although the adult children are not the subject of these proceedings, they are certainly part of the family and their involvement in the proceedings, particularly as all of the children are living with the father, and their supporting the father’s case has a potential impact on the children who are the subject of these proceedings.

20. I have, however, also take into account the fact that the experiences of these adult children in the dynamics of this family may have some relevance to the matters I must determine. It is on that basis that I propose to include in the order for the appointment of a family consultant to prepare a family report that the three adult children be interviewed by the family consultant, if practicable, and that the question of whether the father should be permitted to rely upon affidavits sworn by the adult children should be reserved until after the completion and release of the report.

21. I am hopeful that the family report will address those issues the father believes should be brought to the court’s attention without the necessity for the adult children to participate in the proceedings themselves. 

22. Finally, the parties have agreed that Dr N be appointed as a single expert to prepare a psychiatric assessment of the parties.  I propose to make an order to that effect.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 August 2014.

Associate: 

Date:  17 November 2014