Hall and Hall (No. 2)

[2013] FamCA 953

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO. 2) [2013] FamCA 953

FAMILY LAW – CHILDREN – Procedural Orders – where there is a dispute as to whom should conduct the Family Assessment and Report – orders made appointing a specified person to conduct the Family Assessment and Report.

Family Law Act 1975 (Cth)

APPLICANT: Mr Hall

RESPONDENT: Ms Hall

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 12 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kari

SOLICITOR FOR THE APPLICANT: David Burrell & Co

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Barnes Brinsely & Shaw Lawyers

Orders

1. Paragraph 11 of the Order dated 23 October 2013 is discharged.

1. The parties do all such acts and things as are necessary to jointly instruct Dr A to conduct a Family Assessment and Report with the father to pay the costs of the same in the first instance and the mother’s contribution to the same to be determined at trial on the basis that all steps will be taken to provide copies of all documents filed by each party to Dr A within two [2] working days and that the parties do all things to attend with the children the appointments arranged by Dr A, such report to be made available to the Court before Monday 9 December 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall (No. 2) 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 3671

Mr Hall

Applicant

And

Ms Hall

Respondent

REASONS FOR JUDGMENT

1. This is a matter which was previously before me on 23 October 2013 when I made specific orders in relation to various matters including matters concerning the two children of the parties, K who was born in December 2003 and D who was born in December 2005.  Those orders were made during the period of the adjournment and provided for the father to have supervised time.  There were other orders made and the matter was adjourned to come back before me on 9 December 2013.

2. I gave brief reasons for the orders which were made at that time, relating to the concerns expressed by the mother in relation to the welfare of the children in what she alleged would be the case if they were spending unsupervised time with the father.  Those factual matters are yet to be determined and will, no doubt, not be able to be determined on the current information before the Court on an interim basis unless there is a change of attitude of the parties.

3. The orders that I made also included an order that the parties do all things necessary to instruct either Ms G or Mr H or, if neither of those are available, such other psychologist as agreed to conduct a family assessment report with the father to pay the cost of the same in the first instance and the mother’s contribution to the same to be determined at trial.  My understanding was that that report would be available in time for further consideration to be given to the children’s issues at the time the matter returns on 9 December 2013.

4. Without going into the history of the allegations made by the mother, it is correct that this Court will need to determine the matters in relation to the children on the basis that it is the best interests of the children that are the paramount consideration and not the various disagreements between these parties who are currently unable to carry out their responsibilities as parents in a proper way and come to an agreement in relation to what is best for their children but are leaving those matters to be determined by the Court.

5. It now appears that neither Ms G or Mr H is available in sufficient time to carry out the necessary steps to prepare a report to be available for the parties and the Court by 9 December 2013.  The matter was, therefore, brought back before me on an urgent basis to consider the variation to that order. 

6. The father is seeking an order which would allow Dr A to prepare the report to the Court in relation to the children’s matters.  That is opposed by the mother on the basis that Dr A is not a psychologist.  It is clear that paragraph 11 of my orders of 23 October 2013 specifically referred to “such other psychologist as agreed”.

7. The parties have been unable to find a psychologist upon whom they agree would be an appropriate person to carry out the report within the time which the father seeks.  It is apparent that Ms G, one of the psychologists, could be available but could not start the appointments until 20 January.  The impact on that is that the current orders are likely, therefore, to continue well past the adjourned date in early December, restricting the father’s time to supervised time.

8. The mother’s opposition to the report being prepared by Dr A is because she considers that the psychologists would be better qualified to carry out the report.  In particular, in relation to the child D, the mother has filed a copy of reports of the clinical psychologist, Ms M, dated April 2013, which relates to the treatment which has been provided for D because of his disability which relates to his auditory processing disorder. 

1. The Court is, however, aware of the qualifications of Dr A, albeit that she does not have a degree in psychology and is not a practising psychologist, her curriculum vitae sets out a detailed background and experience in preparing reports for this Court over many years.

2. I am aware that this is what could be described as a procedural matter but, nonetheless, taking into account the need to have this matter prepared properly so that the Court has available before it admissible expert evidence, I am satisfied that Dr A has those qualifications.  I do not accept the submissions that fitting in with the timetable as suggested by Dr A would be chaotic nor do I accept that it is likely to bring about a truncated result which might impact upon the child, D, in particular.

3. The orders which I propose making will require the parties to provide to Dr A copies of all documents filed in these proceedings which would include the detailed psychological report of Ms M and, therefore, put Dr A on notice of the particular needs of the child and would allow Dr A to take into account any arrangements which the mother proposes would be more suitable for the interaction between the family consultant and the children and, in particular D.

4. I consider the orders will be in the best interests of the parties but, more particularly, in the best interests of the children to have this matter determined as promptly as possible without putting at risk due process and fairness to both of the parties.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 November 2013.

Associate: 

Date:  20 November 2013