Yates and Yates

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.