Walerand and Walerand - [2017] FamCA 411

FAMILY COURT OF AUSTRALIA

WALERAND & WALERAND

[2017] FamCA 411

FAMILY LAW – PRACTICE AND PROCEDURE – Single expert – Where the father seeks to rely on another expert witness in a parenting matter – Where the single expert has already released a report – Where the single expert did not interview the children individually or observe them with each parent – Orders made for joint letter of instruction for single expert to provide updating report after further interviews have taken place.

Family Law Act 1975 (Cth) s 60CC

Family Law Rules 2004 (Cth) rr 15.49, 15.52

Bass & Bass (2008) FLC 93-366
Bowen & Williams [2015] FamCA 545
Gyselman and Gyselman (1992) FLC 92-279

APPLICANT:

Mr Walerand

RESPONDENT:

Ms Walerand

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

Crawford Rya

SYC

Ryan Lawyers

4651 of 2014

DATE DELIVERED:

9 June 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

2 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Price & Company Solicitors & Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Miller

SOLICITOR FOR THE RESPONDENT:	Fox & Staniland Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Crawford Ryan Lawyers Pty Ltd

Orders

The parties and the Independent Children’s Lawyer are to confer for the purposes of preparing a joint letter of instruction to Dr B, the Single Expert, who has been appointed in the parenting proceedings, requesting that Dr B provide an updated report following:
(a)Dr B conducting further interviews with each of the parents attending separately upon him and, in each instance, the children being in attendance with that parent; and
(b)conducting further interviews with each of the children in the absence of the parents.
If, within fourteen (14) days of the date of these Orders, the parties and the Independent Children’s Lawyer have been unable to agree on the contents of the joint letter of instruction to Dr B, then upon the provision of seven (7) days’ notice to the other parties and to the Court, either party or the Independent Children’s Lawyer may request that the matter be re-listed for the purposes of settling the instructions which are to be provided to Dr B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walerand & Walerand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4651 of 2014

Ms Walerand

Applicant

And

Mr Walerand

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are seeking final parenting and property orders pursuant to Parts VII and…

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 Walerand and Walerand

Details

AGLC: Walerand and Walerand [2017] FamCA 411
Case: [2017] FamCA 411
Decision Date: 9 June 2017

CaseChat Overview and Summary

In the matter of *Walerand and Walerand*, heard before McClelland J, the dispute concerned parenting arrangements. The parties, along with the Independent Children’s Lawyer, were seeking to obtain an updated report from a single expert, Dr B, who had been appointed in the parenting proceedings.

The primary legal issue before the court was how to best obtain further information from the single expert to assist in resolving the parenting dispute. Specifically, the court needed to determine the appropriate method for Dr B to conduct further interviews with the parents and children to ensure a comprehensive and up-to-date report.

McClelland J ordered that the parties and the Independent Children’s Lawyer confer to prepare a joint letter of instruction to Dr B. This letter was to request Dr B to conduct further interviews with each parent separately, with the children present during those interviews, and also to conduct further interviews with the children in the absence of the parents. The court also provided a mechanism for resolving any disagreement regarding the content of these instructions, allowing for the matter to be relisted for the court to settle the instructions if the parties could not agree within fourteen days.

Orders

Orders of the court

The parties and the Independent Children’s Lawyer are to confer for the purposes of preparing a joint letter of instruction to Dr B, the Single Expert, who has been appointed in the parenting proceedings, requesting that Dr B provide an updated report following:

(a) Dr B conducting further interviews with each of the parents attending separately upon him and, in each instance, the children being in attendance with that parent; and

(b) conducting further interviews with each of the children in the absence of the parents.

If, within fourteen (14) days of the date of these Orders, the parties and the Independent Children’s Lawyer have been unable to agree on the contents of the joint letter of instruction to Dr B, then upon the provision of seven (7) days’ notice to the other parties and to the Court, either party or the Independent Children’s Lawyer may request that the matter be re-listed for the purposes of settling the instructions which are to be provided to Dr B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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