Wednesday, 4 March 2009

Family Court Brisbane: Directions for Magellan List- Justice Murphy's List

Justice Murphy has issued the following notice for Magellan matters in his list:


Draft and Proforma Orders

From the Magellan callover due to be held on 29 April, there will be an
expectation that, in respect of each matter on the list, draft orders - submitted in a
form capable of immediately being sealed by the court - must be available for
each matter. Orders will not formally be made and issued until such orders are
received in that form.

It should be emphasised that, because each matter is, of course,
different, pro forma orders should be used as a guide only. Orders specific to the
case in hand should be submitted in each case. However, the attached
document provides a good guide to orders that recur with frequency. Justice
Murphy would welcome feedback from Queensland Law Society members - as to their experiences with these orders in Magellan matters, both as to the form and efficacy of the
orders and also whether any additional orders are considered useful to be added
to the document.

Where parties represent themselves, represented parties are expected to take
ultimate responsibility for the preparation of orders. It is anticipated that parties
and/or legal practitioners would confer with respect to orders. Where a party or
parties contend for orders different from other parties, each has a responsibility
to have draft orders in a form capable of being immediately sealed by the court.
In relation to matters, generally, in Justice Murphy's docket - that those appearing
as advocates in all but formal appearances should, as part of their usual
preparation, have a written chronology of relevant matters, a written outline of
argument relevant to the issues to be determined, and draft orders in a form
capable of being sealed by the court if made.

2. Magellan Designation
From now on all orders made in the Magellan list shall on their cover sheet
indicate that have been made in that list and the preamble to the orders will be as
follows: "UPON APPLICATION made to the Court and UPON HEARING in the
MAGELLAN DIRECTIONS LIST ....."

3. Trial Directions
An issue was raised about the issue of trial directions being made on the same
day as the Magellan callover.

Unfortunately, it is not possible to conduct trial notice hearings on the same day
as the Magellan directions list, despite the obvious practical efficiencies (for
everybody) of such a course. There are a number of reasons.

First, in accordance with the National Magellan protocols a Registrar is
designated as Magellan Registrar and it is he or she who conducts the trial notice
hearing. (In Brisbane's case, of course, that is Registrar Turner). Accordingly, it
is Registrar Turner who needs to be available at the conclusion of a Magellan
directions list. Available time simply precludes her availability that day on most
Magellan directions days. The callover lists now frequently approach 20 matters
and their length is increasing. Further in accordance with National Guidelines the
Magellan judge hears all preliminary matters, including those which are more
substantial.

It is not possible to predict in advance how long individual matters will take and,
therefore, how long the list itself will take.

Secondly, the Court's experience is that many practitioners (understandably)
have not turned their attention to the preparation for trial at the directions hearing.
That is further complicated by the (frequent) use of town agents or having the ICL
appear as unpaid agent for other parties.

Thirdly, once a matter is set for a Trial Notice hearing, Registrar Turner examines
the entire file seeking to ascertain possible witnesses, subpoenae issues and the
like so as to make the trial notice hearing more productive (and also to provide
for the Judge as accurate an estimate as possible of the length of trial - an
important issue for court purposes and not always easy to determine in the case
of inexperienced practitioners).

Fourthly, the time between the Magellan Directions list and the trial notice gives
Registrar Turner to provide the most up to date information on Judge availability.
In that respect. The Court is attempting to have a list of Magellan trials ready to
fill trial dates made available by a case settling or otherwise disappearing from a
Judge's list of allocated trials.

However, in order to meet issues of cost and inconvenience, the Court is
prepared to try conducting ALL Trial Notice directions hearings by phone with
(represented) parties being excused from attendance. The success of that will
depend upon practitioners being properly prepared. Given that the Legal Aid
Office (and perhaps other practitioners) might have a number of matters on any
trial notice directions day, Registrar Turner will be happy to liaise, with a view to
allowing the matters to proceed one after another so as to maximise efficiencies.
Practitioners might confer ahead of the hearing date to that effect.

THE HON JUSTICE MURPHY
PROFORMA ORDERS
(As at 25/02/2009)




ADJOURN TO REGISTRAR FOR LISTING TO FINAL HEARING
1. The matter is adjourned to the Magellan Registrar at (time and date) in the Brisbane Registry of the Family Court of Australia, for the making of directions and listing the matter to final hearing.

ADJOURN TO FUTURE MAGELLAN DIRECTIONS LIST
2. The matter is adjourned to the Magellan Directions List before Justice Murphy at (time and date) in the Brisbane Registry of the Family Court of Australia.

CONSENT AND VACATE
3. In the event that the parties reach agreement with respect to interim time, the parties and the Independent Children's Lawyer shall be at liberty, by way of joint communication forwarded to the Associate to Justice Murphy at the email address lee-anne.mcmurray@familycourt.gov.au to attach the minutes of consent, and if considered by the Court to be in the best interests of the child, such orders shall be made by consent in chambers.
4. In the event that consent orders are made in accordance with the above order, the hearing listed for (date) shall be vacated without further application or appearances being required.

EXPERT REPORT
5. The parties do all such things, sign all such documents, pay all such fees and attend all such consultations as might be necessary so as to permit an independent single expert [psychiatrist or as the case may be] nominated by the Independent Children's Lawyer to prepare a report in respect of each of the parties and the child/ren to this relationship.

FAMILY REPORT
6. Pursuant to Section 62G of the Family Law Act, a report be prepared for the Court by a Family Consultant, Child Dispute Services, and that such report to be available, if possible, by (date).
a. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents/documents related to this matter.
b. The Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.
c. The parties shall do all such things, sign all such documents, attend all such appointments and ensure the child/ren attend all such appointments as are reasonably necessary for the preparation of the Family Report.


SECTION 65L SUPERVISION ORDERS
7. Pursuant to Section 65L of the Family Law Act 1975:
a. compliance with these parenting orders is to be supervised by a Family Consultant, Child Dispute Services of the Family Court of Australia Brisbane Registry;
b. to the extent possible it is requested that the Family Consultant be (insert name);
c. the Family Consultant shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with , and the carrying out of, the parenting orders;
d. the parties shall do all such things, sign all such documents, attend all such appointments and ensure the child/ren attend all such appointments as are reasonably necessary for such supervision;
e. the Family Consultant shall prepare a report, in respect of the supervision, and contact with the parties and child/ren and it is requested that, if possible, such report be available at the hearing listed for (date).

SECTION 69ZW – DISTRIBUTION OF REPORT
8. The Independent Children's Lawyer and each of the parties be provided with a copy of the Report, produced pursuant to s 69ZW, provided to the Court by the Department of Child Safety.

SECTION 121(9)(a) ORDERS
9. To the extent that the exception provided for in s 121(9)(a) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish:
(a) an account of these proceedings;
AND/OR
(b) all such documents and information relevant to these proceedings as the Independent Children's Lawyer might consider appropriate, including, without limiting the generality thereof, the Child and Parents Issues Assessment prepared by (name) on (date) and copies of any documents produced pursuant to subpoenae in these proceedings;
AND/OR
(c) the reports of (name of expert) and the reporting social worker (name) annexed to the Affidavits filed by the Independent Children's Lawyer on (date), to the Magistrates Court of Queensland for use in Children’s Court proceedings in that Court;

SUBPOENA – LEAVE TO INSPECT
10. Unless otherwise ordered, leave be granted to ALL PARTIES to INSPECT and the INDEPENDENT CHILDREN'S LAWYER ALONE to COPY documents produced pursuant to subpoenae, save in respect of any document of which a claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before Justice Murphy to inspect such documents.

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