HALIFAX & HALIFAX
[2020] FamCA 312
•30 April 2020
FAMILY COURT OF AUSTRALIA
| HALIFAX & HALIFAX | [2020] FamCA 312 |
| FAMILY LAW – PARENTING – ADJOURNMENT – Where the parents are unable to resolve their dispute about the parenting arrangements for their youngest child – Where the mother alleges the father has made serious threats to her life over years – Where the parties’ adult daughter gave evidence that such threats were also made to her – Where the father initially denied those threats but ultimately conceded they were said – Where the father contends such threats were never serious – Where the independent psychiatrist was briefed on the father’s concession in the course of the psychiatrist’s oral evidence – Where the psychiatrist strongly urged the Court to order that the father undergo a psychiatric forensic risk assessment to determine the legitimacy of the threats made – Where the psychiatrist gave evidence that such assessment ought take place before any final orders are made – Where such evidence requires the adjournment of the trial – Where Legal Aid Queensland is requested to give favourable consideration to funding such an assessment – Trial adjourned to dates to be fixed – Where a transcript of the relevant evidence will be provided to all necessary parties. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Halifax |
| RESPONDENT: | Mr Halifax |
| INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
| FILE NUMBER: | BRC | 622 | of | 2009 |
| DATE DELIVERED: | 30 April 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 28 - 30 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Chekirova |
| SOLICITOR FOR THE APPLICANT: | A P Hodgson & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Lyons |
| SOLICITOR FOR THE RESPONDENT: | Cherry Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Dodd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
Orders
The trial of these proceedings be adjourned to a date to be fixed for a further three (3) days of hearing.
The parties have liberty to apply as to the fixing of the further dates.
The Court obtain and provide to each of the parties a copy of the transcript of the oral evidence of each of:
(a) Ms B;
(b) the Father; and
(c) Dr C.
Subject to funding, the Independent Children’s Lawyer in conjunction with the Father, be responsible for engaging a suitably qualified psychiatrist (“the expert”) to undertake a forensic risk assessment of the Father and to prepare a report of that risk assessment, to be provided to the parties and the Court.
The parties be at liberty to apply as to the question of funding.
The transcripts referred to in Order (3) be provided by the Independent Children’s Lawyer to the expert.
The Independent Children’s Lawyer be at liberty to provide to the expert the following:
(a) affidavits or copies of affidavits filed in the proceedings; and
(b) copies of any relevant documents provided on subpoena;
for the purpose of the expert undertaking the risk assessment.
Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) the Father be at liberty to publish to any of his treating medical professionals the following:
(a) the report of Dr C filed on 29 July 2019;
(b)the report of Mr D filed on 9 April 2019 and addendum letter from Mr D dated 25 September 2019 (marked as Exhibit 1 in these proceedings);
(c) the affidavit of Ms B filed on 26 February 2020; and
(d) the transcripts referred to in Order (3).
Pursuant to s 121 of the Family Law Act 1975 (Cth) the Independent Children’s Lawyer be at liberty to provide a copy of the transcripts referred to in Order (3) to Legal Aid Queensland.
NOTATION:
A.The Registrar of the Family Court of Australia to provide to the Marshal the following:
i. a copy of Ms B’s affidavit filed on 26 February 2020; and
ii.a copy of the transcript of the oral evidence of Dr C referred to in Order 3.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Halifax & Halifax has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 622 of 2009
| Ms Halifax |
Applicant
And
| Mr Halifax |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The trial of these parenting proceedings was set down for hearing for four days commencing on 28 April 2020, such that this is the third day of that trial.
The position has been reached in the trial largely by reference to the evidence of Dr C the independently engaged expert psychiatrist that a forensic risk assessment with respect to the father needs to be undertaken before final parenting orders can be determined.
The parties are in agreement that the trial needs to be adjourned for that purpose and certainly from the Court’s perspective, the Court would not be in a position to finalise parenting orders nor to assess one of the fundamental primary considerations, namely the question of risk, without the forensic risk assessment referred to.
One of the difficulties which presents is that of cost, that is, funding of the report. The father gave evidence, which I can accept, that his current funding of his supervised time with the subject child is a significant financial cost which he is having difficulty meeting.
It is the evidence of Dr C that it is an important safeguard potentially that supervised time continue, at least at this point.
It would seem that the father would not have the resources both to continue supervised time and to meet the cost of the forensic risk assessment estimated by Dr C to be in the order of $6,000 plus GST, if he undertook the assessment.
The parties have made enquiries of other experts and it may be possible to obtain a forensic risk assessment from an appropriately qualified expert at a lesser cost, but the point is it needs to be undertaken and funded.
From the point of view of Legal Aid Queensland (“Legal Aid”) significant costs have already been incurred by Legal Aid with respect to this matter.
Obviously the Independent Children’s Lawyer (“ICL”) appointed to independently represent the child’s interests in the proceedings is funded by Legal Aid, as is the mother’s counsel, and the father’s counsel is likewise funded for that purpose pursuant to the relevant provisions regarding cross-examination in the context of cases involving family violence. The significant investment by Legal Aid thus far would potentially be lost if the forensic risk assessment cannot be undertaken soon and the trial be resumed.
On that basis from the Court’s perspective the Court requests that Legal Aid give favourable consideration to the further funding involved in obtaining a forensic risk assessment of the father so that these proceedings might be completed.
I would add that the proceedings have been of long-standing in the sense of long term litigation between these parents, but the subject child is 12 years of age and it is fundamentally important to her, not only that parenting orders be determined, but also that the issues presented in this case be resolved one way or the other.
For those reasons I emphasise to Legal Aid the importance of the forensic risk assessment being undertaken and for the trial to be completed.
I will request the ICL to provide a copy of these reasons to Legal Aid for the purpose of considering the Court’s request that Legal Aid give favourable consideration to the funding referred to.
Otherwise, the orders will be as formulated in the course of discussion and which will be settled by me and provided to the parties.
I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 30 April 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 1 May 2020
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