Yates and Yates - [2013] FamCA 67

FAMILY COURT OF AUSTRALIA

YATES & YATES

[2013] FamCA 67

FAMILY LAW – FAMILY CONSULTANT - Role as an investigator determined by the evidence presented by the parties or as dictated by the Court.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Yates

RESPONDENT:

Ms Yates

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBC

506

2009

DATE DELIVERED:

6 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Munro

SOLICITOR FOR THE APPLICANT:

John Munro Barrister & Solicitor

COUNSEL FOR THE RESPONDENT:

Mr McVeity

SOLICITOR FOR THE RESPONDENT:

Bishops Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

That upon the wife filing and serving an affidavit of the child of the marriage P and an affidavit by her mother containing admissible evidence or alternatively, indicating a desire to rely on the two affidavits previously filed by or on behalf of the husband (noting that they contain inadmissible material), the family consultant should read such material and determine whether it is likely to assist the Court to express an opinion on the issues raised by that evidence.
That the family consultant read the previous family reports of Ms S contained on the court file.
That the application in a case filed 5 February 2013 by the wife and the response thereto by the husband filed on 31 January 2013 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yates & Yates 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: HBC 506 of 2009

Mr Yates

Applicant

And

Ms Yates

Respondent

REASONS FOR JUDGMENT

This interlocutory application raises two main issues about a pending final parenting dispute. They are:
(a)to what extent should the Court dictate to a family consultant the level of investigation to be undertaken for a family report?; and
(b)to what extent did a Full Court circumscribe the parameters of the dispute in directing a rehearing of the case?
By application in a case filed 5 February 2013, Ms Yates (“the wife”) sought an order that in an updated family report, the family consultant:
i.Interview an adult child of the marriage P;
ii.Interview the wife’s mother; and
iii.Read all material “which was available” at a hearing in July 2010.
The wife went on to seek an order that this updated family report include “any further or different recommendations” as the family consultant saw fit after these tasks were fulfilled.
By his response to the wife’s application, Mr Yates (“the husband”) sought the anticipated application be dismissed.
This being a Hobart case, the matter was dealt with by video link. The submissions of all parties were heard in that video link and the parties’ respective affidavits read. This case will most likely be heard later in…

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 Yates and Yates

Details

AGLC: Yates and Yates [2013] FamCA 67
Case: [2013] FamCA 67
Decision Date

CaseChat Overview and Summary

In *Yates & Yates*, the Family Court of Australia considered an interlocutory application concerning the scope of a family consultant's investigation in a pending final parenting dispute between Mr Yates (the husband) and Ms Yates (the wife). The application arose from an appeal of an earlier decision, which resulted in a partial retrial with specific limitations imposed by the Full Court on the issues to be determined. The wife sought orders for the family consultant to interview an adult child, the wife's mother, and review all previously available material, seeking further recommendations. The husband opposed this application, arguing it was outside the parameters set by the Full Court.

The court was required to determine the extent to which a court should dictate the level of investigation undertaken by a family consultant and whether the Full Court's directions had circumscribed the parameters of the dispute to the extent that the wife's application was impermissible. The wife contended that the family consultant should act as an investigator to ensure all requirements for making a parenting order were met, including interviewing specific individuals and reviewing past reports. The husband argued that the Full Court's orders limited the scope of the rehearing and that the proposed interviews were not contemplated by those orders or previous directions.

Justice Cronin reasoned that while the Full Court had directed a rehearing within a narrow compass, focusing on specific parenting arrangements and using Benjamin J's findings as a starting point, this did not fetter the discretion of the new trial judge. The court's mandatory obligation to consider all factors under section 60CC of the *Family Law Act 1975* (Cth) meant that relevant evidence, even if historical, must be considered if it could rationally affect the assessment of a fact in issue. The role of a family consultant is to report to the court on matters relevant to the proceedings as directed by the court, acting as an expert whose evidence must be admissible. The court held that it was not the function of the family consultant to undertake a wide-ranging search for material without specific direction, but rather to examine the parameters of the dispute as presented by the parties. The court also noted that much of the material sought to be relied upon by the wife contained inadmissible comment and opinion.

The court ordered that the wife file and serve a further affidavit from the adult child and her mother, or indicate reliance on previously filed affidavits. The family consultant was then to read this material and determine whether interviews were warranted, considering any indication that the material was disputed. The family consultant was also directed to read the previous family reports, as the Full Court had relied on them. The wife's application to have the family consultant interview the adult child and the wife's mother was otherwise dismissed, with the decision on whether to interview those individuals left to the family consultant based on the presented evidence.

Orders