DOLLARD & HANING

[2014] FamCA 149

FAMILY COURT OF AUSTRALIA

DOLLARD & HANING [2014] FamCA 149

FAMILY LAW – CHILDREN – Interim Orders – preparation of section 62G report – whether observed interaction between father and child appropriate – interaction at the discretion of the report writer.

Family Law Act 1975 (Cth) ss 62G, 11F

APPLICANT: Mr Dollard

RESPONDENT: Ms Haning

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 2330 of 2013

DATE DELIVERED: 6 March 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greer

SOLICITOR FOR THE APPLICANT: Adelaide Lawyers

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. The Independent Children’s Lawyer is authorised to request an experienced, qualified psychologist, of the Independent Children’s Lawyer’s choice, to prepare a report in the nature of Section 62G(2) of the Family Law Act 1975 (Cth) report.

2. Such report is to be prepared following upon the interviews of each of the parties and the child N.

3. After such interviews and having read the material on file (including the reasons) the report writer to consider whether to proceed with a period of observed interaction between the child N and the father taking into account the child’s best interests.

4. The matter remains listed before Registrar Paxton on 29 April 2014 at 2.30 pm for directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dollard & Haning 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 ADELAIDE

FILE NUMBER:  ADC 2330 of 2013

Mr Dollard

Applicant

And

Ms Haning

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter in which the parties are in dispute about orders that should be made for the young child, N, (“the child”) who was born in 2009 and is approaching five years of age. 

2. The matter is one of considerable complexity, involving as it does the history of the relationship between the parties, the parties’ attitude and capacity, the need to protect the child, the psychological welfare of the parents and the need to consider the benefit to the child of having a meaningful relationship with each of the child’s parents.  I am not limited, of course, to those factors, but when making orders in parenting matters the best interests of the child should be the paramount consideration. 

3. This is an interim application. The matters which are in dispute have not been determined.  Some of those are serious matters which involve questions of the extent of the alleged family violence;  the extent of, and the impact it would have on the welfare of the child, of the alcohol and drug abuse of the parties;  and matters which affect both parties’ psychological welfare and how that would impact upon the child. 

4. The matter before me this morning is to consider how the matter should proceed to be determined by the Court, and what sort of report should be made available to the Court to assist the Court in determining what is going to be in the best interests of the child, N. 

5. This morning the parties have received (and the Court has received) the Child Responsive Programme Memorandum prepared by the Family Consultant following upon interviews with the parents separately on 21 February 2014.  That report refers to the issues which have been set out in the parties’ affidavit, and also includes the issue which was raised by counsel for the mother before me this morning, that is, specifically, whether any period of interaction between the child and the father would cause the child distress, or would cause the mother such distress as to impact upon her in a way that would directly affect the child’s best interests. 

6. It is often the case when making orders for section 62G reports to leave the question of an observed interaction between the child and one of the parties to the expert to decide, bringing into account what is in the best interests of the child after the expert has considered all the material on the Court file and interviewed each of the parents or adults concerned.  In this case there is argument as to whether the Court should specifically direct the expert to take into account particular matters. 

7. In the case of the mother, I was asked to consider that the expert only observe an interaction between the child and the father, if the expert has considered:

   (1)whether or not a period of observed interaction between the child and the father would cause the child, N, stress;  and

   (2)whether or not a period of observed interaction between the child and the father would cause the mother distress such that it would not be in the child’s interests that such interaction occur.

8. Such an order was not supported on behalf of the father because of the allegation that it placed inappropriate emphasis upon the mother’s allegations considering other significant factors which would need to be determined when ascertaining what is in the best interests of the child, N.  That includes allegations in relation to drug and alcohol abuse and other psychological factors raised in the affidavit material already on file, including the allegations of each of the parties, and the reports of Dr B.

9. I am satisfied that, in this case, there are a large number of significant factors which would have to be taken into account and carefully considered by an appropriately qualified person before the child is required to be observed interacting with the father, who he has not seen for a considerable period of time.  The Independent Children’s Lawyer counsel asked the Court to allow the Independent Children’s Lawyer to arrange the report to be written in terms of section 62G by a fully qualified and experienced psychologist.  I consider that, taking into account the intricacies of this matter and the significant factors to be taken into account, that a qualified psychologist who has experience in dealing with Family Court matters should be the person who is the expert to prepare the report.

10. I also consider that the expert, once appointed, should be given full access to all of the material on the Court file, including the 11F Child Responsive Programme Memorandum, and my remarks this morning, and on that basis would be able to weigh carefully the factors which would be appropriate after the expert has interviewed both of the parents to take into account whether an observed interaction between the child and the father is appropriate and in the child’s best interests. 

11. I therefore propose to order that the Independent Children’s Lawyer is authorised to request an experienced and qualified psychologist of the Independent Children’s Lawyer’s choice to prepare a report of the nature of a section 62G report following upon the interviews of each of the parties and the child, and following upon the interviews of the parties and the child, and having read the material on the file, including these reasons, then consider whether to proceed with a period of observed interaction between the child, N, and the father, taking into account the child’s best interests. 

12. I make that order, and would propose to simply then leave the matter as it is currently listed for 29 April at 2.30 pm.  If there is any need for that to be adjourned because of the delay in obtaining the report it could simply be a directions hearing on the basis that the report is likely to be ready in time for a trial date. I leave the matter listed before Registrar Paxton for that date.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 March 2014.

Associate: 

Date:  17 March 2014