Appeal Court Confirms Family Reports Do Not Need To Be Written By A “Family Consultant”

The case of Mullaly & Beddoe [2015] FamCA 891 (23 October 2015) was a Family Court of Australia application in a case in relation to parenting and property matters between a separated husband and wife.

The wife wanted to relocate with the parties’ child to the United States of America. The husband asked the Court to issue an order restraining the wife from taking the child out of Australia.

During the initial proceedings, Judge Jarrett made orders that the parties obtain a Family Report to assist the Court in evaluating the circumstances. The Family Report was completed by a psychologist who was elected by the parties. The Family Report recommended that the child remains in Australia.

The wife disagreed with the Family Report and submitted an Application in a Case (an application in relation to an existing family law case) to have the Family Report struck out or that another person is engaged to prepare a further Family Report. This proceeding was before Judge Hogan and determined whether the Family Report should be struck out and a further report produced.

Background

The husband and wife married in 2008 and separated permanently on 27 January 2010. They had a child together in 2007. After separation, the child lived with the wife but had contact with the husband 5 nights each fortnight.

The Family Report

The Family Report was completed by a qualified psychologist (“Ms. E”). Ms. E interviewed the wife, husband, and child. Having done this she produced a Family Report making recommendations that

the current parenting arrangements remain in place. Ms. E concluded that it was in the child’s best interest to maintain a relationship with both parents and this would be best achieved if the child remained in Australia.

The wife disagreed and asked the Court to strike out Ms. E’s Family Report. Instead, the wife argued that a second psychologist (“Ms. F”) be granted leave by the Court to produce a further Family Report under rule 15.52 of the Family Law Rules 2004. Rule 15.52 provides rules about applications for the use of expert witnesses.

In objecting to Ms. E’s Family Report the wife put forward the following objections:

1. Ms. E was not a Family Consultant under regulation 7 of the Family Law Regulations 1984;

2. Ms. E failed to address questions put to her by the parties and failed to set out the findings that she relied on in the Family Report;

3. Ms. E’s opinions were not based on specialized knowledge; and

4. Ms. E had stepped outside of her area of expertise and taken irrelevant considerations into account and not considered relevant matters.

No Requirement that Family Consultants Produce Family Reports

The wife’s counsel argued that Ms. E was not appointed as a Family Consultant under regulation 7 of the Family Law Regulations. The wife’s counsel then argued that as a result Ms. E could not perform the duties of a Family Consultant as defined by section 11A of the Family Law Act 1975 (the “Act”) or produce Family Reports under section 62G of the Act.

Judge Hogan considered these arguments and considered section 11B of the Act which states a family consultant is a person:

(a) appointed under section 38N of the Act;

(b) appointed in relation to the Federal Circuit Court of Australia under the Federal Circuit Court of Australia Act 1999;

(c) appointed under the Regulations; or

(d) appointed to a Family Court of a State under state law.

While section 11B of the Act would apply in regard to a Family Consultant, Judge Hogan found that there was no order made that the parties engage a Family Consultant to produce the Family Report. Neither was an order made under section 11F of the Act requiring parties to attend an appointment with a Family Consultant. Finally, no order was made under section 62G of the Act for a report to be produced by a Family Consultant.

Judge Hogan found that there was no requirement under the Act that a Family Report is produced by a Family Consultant. The parties elected the appointment of a single expert witness under rule 15.44 of the Family Law Rules to help them resolve a substantial issue in a case and prepare a Family Report. Just because a party did not like the outcome of the Family Report was not grounds to dismiss the expert witness nor the evidence adduced by the expert witness.

The wife’s application in a case relating to the Family Report was dismissed.