Fennick and Fennick

[2008] FamCA 217

FAMILY COURT OF AUSTRALIA

FENNICK & FENNICK [2008] FamCA 217

FAMILY LAW – CHILDREN – interim – no time with

APPLICANT: Mrs Fennick

RESPONDENT: Mr Fennick

INDEPENDENT CHILDREN’S LAWYER: Ms Riches

FILE NUMBER: SYF 4590 of 2005

DATE DELIVERED: 26 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rushton

SOLICITOR FOR THE RESPONDENT: Ms Murphy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

Orders

1. Pending further order, Orders 2 and 3 made 5 November 2007 are suspended.

2. Leave be granted to the Independent Children's Lawyer to issue subpoenas to J’s school; … Hospital; DoCS; Dr S; … Contact Centre and NSW Police, to be returnable before Registrar Micaleff.

3. The husband’s legal representative not disclose to the husband any material that would identify any address at which the mother or children reside or the school at which the children attend. 

4. This matter be adjourned to 5 June 2008 at 3.30pm. 

IT IS NOTED THAT:

1. The Docket Registrar is authorized to make an order granting the father’s legal representative leave to photocopy material for the purposes of providing it to a nominated expert. 

IT IS NOTED THAT publication of this judgment under the pseudonym Fennick & Fennick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4590 of 2005

MRS FENNICK

Applicant

And

MR FENNICK

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the Independent Children's Lawyer has made an application that on an interim basis order 2 made on 5 November 2007, be suspended. 

2. When considering an interim application of this kind, my paramount consideration has to be what is in the child’s best interests and in conducting that inquiry I need to have regard to the factors set out in s.60CC Family Law Act (“FLA”). The two primary considerations is a balancing of the benefit that J would have by having a meaningful relationship on an ongoing basis with both his parents, against any harm that that contact might present to him. I have to consider the same things in relation to S.

3. This is an interim inquiry and consequently is done in a very prescriptive way. 

4. I have before me an affidavit of Dr R who is a child psychiatrist who has produced a further report dated 14 February 2008.  That report was produced in circumstances where J had been hospitalised as a result of his significant emotional and behavioural disturbance.  That disturbance is of such a nature as to indicate a psychiatric disorder.  Dr R concludes that the aetiology of that disorder is likely to be multifactorial, but she concludes - and this is an untested conclusion but it is what I have before me at the moment - that J’s current crisis was precipitated, in Dr R’s view, by the orders that were made by me by consent on 25 June 2007; that is, she is saying that for whatever reason J’s involvement with his father at the contact centre has precipitated the crisis that has led to his hospitalisation.  That is a conclusion of an expert that is yet to be tested, but it is a conclusion that at the moment on its face I have to take very seriously because of the extremely serious nature of the threat to J’s wellbeing that is described in Dr R’s report and is evidenced by his hospitalisation for a psychiatric disorder at the age of eight.  

5. Dr R’s view is that whether or not J’s fears are properly founded, whether or not they are a function of behaviour by the father or behaviour by the mother or a combination of both, at this point in time their aetiology is irrelevant.  What is relevant is that the dynamics created by the current order, in Dr R’s view, are putting J’s medium to long term mental health at significant risk.  Dr R’s view is that if the order is suspended and ultimately discharged, J’s prognosis is still a guarded one, is still a significant risk on the face of the report that he will develop significant psychiatric pathology.  Dr R says that may be avoided if the current crisis can be controlled.  She points particularly to the fact that the next few years before his teenage years are vital for his mental health and he needs no further disruptive experience once he has settled down from this crisis.

6. I am told today from the Bar table that he is now home from hospital.  Faced with Dr R’s recommendation, I really have no alternative but to conclude that it is in J’s best interests to do what the doctor has indicated is vital for his psychological and psychiatric recovery.  As Dr R indicates, this is a very sad case and she acknowledges, and I acknowledge, how painful the current situation must be to J’s father. 

7. In relation to S, Dr R is also of the view that a continuation of the order in relation to S is not an option as such action will, in Dr R’s view, again untested, be provocative for J; that is, if J finds out that S is going to see her father, then J will react in much the same way as if the current regime continues for both of them. 

8. I have read the affidavit material that I have been referred to.  On an interim basis I cannot make any determination as to who is giving the more accurate version in relation to the serious allegations contained in those affidavits and I do not make any finding one way or the other about them.  I reiterate, however, that, as Dr R says in her report, at least on an interim basis I conclude that the current reason for J’s fears at the moment are beside the point.  The fact is that he has them and they are causing him considerable risk and harm at the moment.  So in all of those circumstances I find that it is in the children’s best interests to suspend the current order.  I make an order in the terms sought by the Independent Children's Lawyer.   

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  3.4.2008