New family report writer refused

New family report writer refused

Lomax & Kelly [2016] FamCA 124 (22 February 2016)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/124.html

1. There is an application before the Court as outlined in the Amended Application in a Case filed 18 February 2016. The only aspect that requires determination now, given the earlier interchange between myself and Mr Lomax, is whether the updated Family Report (which it is agreed is necessary to assist me in my final determination of the appropriate parenting orders later this year) is prepared by Ms LL – a Family Consultant who has previously interacted with this family and, importantly, these children on two previous occasions – or by a Mr MM: someone who has been located by Mr Lomax and who, it seems on the evidence, would be in a position to prepare a Report within a cost framework that is acceptable to him.
2. Mr Lomax’s submissions rest upon the assertion that the Family Consultant’s report, perhaps, did not address all of those issues he considers most appropriate. He is, on his submission, concerned to ensure that the children’s participation in the process involving decisions and orders which will be made about their interaction with each of their parents and the preparation of the updated Report occurs with the assistance of as much time and/or interaction as is possible. He submits that, given the constraints imposed upon the Family Consultant by systemic issues, that is more easily addressed by the private commissioning of a report.
3. Ms Geysen, the Independent Children’s Lawyer, does not necessarily object to or consent to the approach suggested by Mr Lomax. She simply makes submissions in relation to Ms LL’s previous involvement and that it appears interviews for an updated Report can occur in the near future.
4. Ms Kelly opposes the involvement of an additional person to interact with the children. She does so on the basis that they have previously interacted with other professionals (albeit that the first of those appears to have occurred in October/November 2005) and Ms LL, on two occasions the first in 2010 and the second leading to the preparation of her Report dated 13 October 2014.
5. Whilst Ms Kelly makes submissions, in essence, as to logistics which she says would prevent and/or hinder the children’s participation in a Family Report process with someone other than Ms LL, the reality is that whoever prepares an updated Report will have to interact with the children and, thus, the children’s routines, activities and school attendance will, for a short period, be, to some extent, disrupted.
6. I am not persuaded that it is in the children’s best interests or appropriate that there be a new person introduced to them for the purpose of interviewing them again in order to prepare a final report.
7. My perusal of Ms LL’s October 2014 Report certainly does not persuade me that she has evidenced any particular assessment, favourable or unfavourable, of either parent. It seems to me, reading the latter paragraphs of the report, that she could well be regarded as making comments critical of each of these parents and their attitudes towards and approaches toward their interaction with the children and support of the children’s relationship with each parent.
8. There is nothing on the face of her report, therefore, that persuades me that it would work an unfairness or an injustice – or that she has demonstrated any bias as a basis for making an order that some person other than her prepare an updated Family Report. I, of course, record that that was not a submission made by Mr Lomax. It is simply something I wish to place on the record as a result of my perusal of the Report for the purpose of determining his current application.
9. If there are weaknesses in the analysis as expressed in the updated Family Report or in the existing reports, then that, of course, is one of the matters that can easily be canvassed at trial.
10. As I have already noted with Mr Lomax, one of the difficulties for persons asked to prepare Family Reports is that they have to walk a fine line in terms of arriving at conclusions about matters of fact – which are themselves not within their purview.
11. I am persuaded that it is better, and likely to be of more assistance to the Court, that Ms LL prepare the updated report. She has previously had interaction with this family unit and has previously had the opportunity to observe and form opinions and express those in previous reports. She is, in that sense, then, known to the children and would assist, I think, from a longitudinal perspective in terms of her analysis and/or assessment of, importantly, parental attitudes, support, children’s current and presenting attitudes to interactions with each of their parents and other such matters.
12. For those very short reasons, then, I decline to make orders in terms sought by Mr Lomax at Clauses 1 and 2 of the Amended Application in a Case.
13. Additionally, I note that, in Clause 3, an order is sought that he be at liberty to obtain an independent Family Report (in addition to the Report prepared by Ms LL) and that orders be made requiring Ms Kelly and W to attend upon that person to facilitate the preparation of that report. I am not persuaded in this case that such interaction would be appropriate or in W’s best interests.
14. If there are deficiencies to be established in Ms LL’s updated report, then, no doubt, that will be a matter for cross-examination and submission at the trial.
15. So, for those very short reasons, then, I decline to make an order in terms of Clause 3 of the Amended Application in a Case filed 18 February 2016.
16. Insofar as the Amended Application in a Case filed on that date seeks orders as set out at Clauses 4 and 5, for the reasons I have already expressed, I decline to make those orders.
17. Consequently, then, I will dismiss the balance of the Amended Application in a Case filed 18 February 2016, but, as recourse to a transcript of today’s proceedings will make clear, I do so on the basis that I consider the appropriate time for an application dealing with or seeking that orders in the property aspect of this matter be made on an “undefended basis” or by way of default hearing occur at the final hearing, which is listed before me in June of this year.