Halsey and Cranburne

[2009] FamCA 458

FAMILY COURT OF AUSTRALIA

HALSEY & CRANBURNE [2009] FamCA 458

FAMILY LAW – CHILDREN – interim parenting proceedings – relevant considerations – best interests of the child – suspension of order providing for periods of time to be spent by the child with the respondent

Family Law Act 1975 (Cth)

APPLICANT: Ms Halsey

RESPONDENT: Ms Cranburne

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring Solicitors

FILE NUMBER: SYC 5455 of 2008

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: T. Messner

SOLICITOR FOR THE APPLICANT: Doolan Wagner & Callaghan

FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: D. Holmes

Orders

1. That the proceedings are stood-over for mention only at 10am 6 July 2009.

2. That Dr. R, Psychiatrist, is appointed the Single Child Expert in these proceedings.

3. Order in terms of matters to be the subject of his report in accordance with Exhibit 3 attached hereto.

4. That the parties bear Dr. R’s reasonable costs as set out in Exhibit 3 attached hereto.

5. That the parties attend upon Dr. R as he may reasonably appoint.

6. That the parties attend upon an experienced psychologist or counsellor for the purpose of lessening their current conflicted relationship and in that regard endeavour to implement the recommendations that may be provided by the Family Consultant Ms S or the Independent Children’s Lawyer.

7. That all current orders for periods of time to be spent by the Respondent with the child are suspended unless otherwise agreed in writing between the parties or as otherwise ordered.

8. That leave is granted to the parties and their legal representatives to inspect all documents produced on subpoena to produce documents directed to Dr L, the Proper Officer of the Children's Hospital at Westmead, Dr H, the Proper Officer of North Sydney Central Coast Health, the Proper officer of G Hospital and the Proper Officer of M Pre-School.

9. That the Independent Children’s Lawyer may have photocopy access to documents produced on subpoena for the purpose of providing those copied documents to Dr. R.

10. That the Respondent Mother’s Application Contravention is stood-over to 10am 6 July 2009.

Notations:

A.That the Independent Children’s Lawyer will write to Dr. R setting out the relevant background in terms of the parties’ relationship as well as furnishing him with a copy of the Orders Justice Rose has made reflected in Exhibit 3 so far as matters upon which he should report.

BThat the Independent Children’s Lawyer will investigate the possibilities of supervised periods of time in terms of potential supervisor, the fees that would be incurred, the place of such supervision, places at which it would take place and will provide written information in that regard to the parties.

C.That the Respondent may spend time with the child in Dr. R’s rooms as he may arrange consistent with the Orders for attendance upon Dr. R to enable him to carry out all necessary interviews and preparation of his report

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5455 of 2008

MS HALSEY

Applicant

And

MS CRANBURNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties seeks parenting orders.

2. The proceedings were listed before me today and commenced as Day 1 of the hearing in accordance with the Less Adversarial Trial Procedure.

3. Evidence was given by each of the parties.  In addition, evidence was given by Ms S, Family Consultant.  The parties engaged in a mediation session with the family consultant.  The parties agreed that they should consult an appropriate psychologist or counsellor with a view to ongoing mediation in an endeavour to resolve their highly conflicted relationship which has impacted upon the child.

4. The parties also agreed that resolution of the issues would be assisted by the appointment of a single expert, being a child psychiatrist or psychologist.  That approach was supported by the family consultant, as well as the independent children’s lawyer.

5. Information was exchanged regarding the times of availability by a number of proposed experts.  Ultimately, Dr R, psychiatrist, was able to indicate that his first availability was 2 June 2009, which was well in advance of the earliest interview appointments that could be made with the other experts that were mentioned.

6. The parties also agreed that the steps that need to be taken for ultimate resolution of these proceedings should be taken as soon as possible and that they would cooperate in that regard.

Application in a case of the applicant filed 24 March 2009

1. The Application in a Case filed 24 March 2009 by the applicant sought, inter alia, suspension of current interim orders which provide for periods of time to be spent by the respondent with the child.  That application is opposed.

2. The applicant is legally represented.  The respondent has been representing herself.

3. The parties lived together in a same-sex relationship which ceased in or about April 2008.  They have a child, a daughter, born in June 2006.  The child will shortly attain the age of 3 years.

4. The child has lived with the applicant, subject to periods of time that she has spent in the care of the respondent.  Those periods of time have not been consistent in that there have been some periods of months or weeks in which the ongoing relationship between the child and the respondent was interrupted.  That is the position as at today.

5. Unfortunately, the child has had a number of serious health issues, which are referred to in the affidavits of the parties.  The child has taken part in consultations with a general practitioner, as well as a consultant paediatrician Dr H.

6. Dr H provided a report dated 4 March 2009.  That report is a very detailed one in terms of what he describes as “clinical impression” and other important aspects, including progress, physical examination and recommendations.  The report is a controversial one as the respondent contends that she was not invited to take part in the relevant consultations with Dr H, nor has she been able to provide information to him that may be relevant from her viewpoint.  Indeed, as I understand it, a complaint has been lodged by the respondent with the Health Commission in relation to Dr H’s alleged refusal to provide information to the respondent touching upon the child’s health.

7. Regardless of that complaint, the expert opinion of Dr H is before me and is the only recent report in evidence dealing with the child’s health issues.  The report contains a number of recommendations to which I have referred.  Amongst those recommendations include the following numbered 3 and 4

   “3.  Given the current emotional traumas associated with access visits, I have recommended that [the child’s] planned food challenge at the Children's Hospital under Dr [W] be deferred.

   4.  I was very concerned about the adverse impact [the child’s] access visits had been having on her emotional well-being and have recommended that these access visits be reduced in frequency and duration.  Furthermore, I believe it would be in [the child’s] best interest for these access visits to be supervised at all times until [Ms Halsey] is sufficiently reassured that [the child] will receive appropriate nurturing and supportive care.”

8. Dr H then continued with recommendations regarding future consultations that the child might take part in, including a reference to a family psychiatrist.  Dr H also strongly supported the appointment of a single joint expert specialist child and family psychiatrist to carry out the assessment referred to in paragraph 6 in recommendation numbered 6 of his report.

9. During the course of her submissions the respondent informed me that as a temporary measure she was prepared to agree to her having supervised periods of time with the child at her expense.  This was a proposal put forward only today.  Needless to say, the detail was missing in terms of who would be the likely supervisor, whether that person understands and is acceptable having regard to responsibilities of a supervisor, not to mention the periods of time that would be supervised, the place of supervision and the frequency of such supervised periods of time.

10. The independent children’s lawyer, who has carried and is likely to continue to carry a high responsibility of assistance to the court, and indirectly the child, has volunteered to investigate that matter further and to provide the results of his inquiries to the parties so that perhaps supervised periods of time can take place. The applicant through her legal representatives does not oppose in principle such supervision occurring.  However she is unable to take the matter any further without that extra information to which I have referred being given to her for consideration by her and her legal advisers.

Conclusion

1. I have concluded that it is in the child’s best interests on an interim basis for the application of the applicant to succeed.  My reasons for doing so are as follows.

2. Each of the parties has made allegations and counter-allegations against each other as to the true causes of the conflicted parental relationship that they have, which unfortunately, on the evidence before me, is likely to have impacted upon the child.

3. The respondent has emphasised that, on her inquiries, the child does not show any behavioural issues of concern during the periods that she attends preschool.  However, the substance of the allegations made by the applicant is that the child’s behaviour at preschool is not the issue.  The issue is the child’s behaviour following the return to the applicant’s care after spending periods of time with the respondent.

4. It is not a matter of controversy that the child has unfortunately suffered from a number of health issues, some of which appear to be very serious indeed.  They have been described in detail in Dr H’s report.  A copy of that report is annexed to the affidavit of the applicant sworn 19 March 2009 and filed 24 March 2009.

5. Dr H has been the consultant paediatrician for the child.  He describes her health as being one of complexity.  It is obvious that is the case when one reads the detail that he has provided under the heading “Clinical Impression”.

6. It is unfortunate, to say the least, that the parties who joined together in seeking to create a life whereby a child born of the applicant would have the benefits of their parental nurturing should have now led to the position that they are apparently constantly in disarray with allegation following allegation.

7. It is also not a matter that could have been helpful for the respondent to seek to involve a series of government authorities and figures, as well as the police, in relation to issues which she contends have been thwarting her role as a parent.  In addition, I have been informed by the applicant, and this is not denied, that there are now current criminal proceedings in the Local Court relating to charges of unauthorised interception of electronic transmissions of the respondent.

8. I cautioned the applicant in relation to evidence that she may give on that matter, given that those proceedings are pending.  It is a matter for the Local Court to determine those proceedings and I do not make any comment in relation to the merits of those proceedings.

9. It seems to me that I should take the course in the best interests of the child which minimises risk so far as her emotional wellbeing is concerned.  The report of Dr H, to which I have referred, persuades me that in pursuit of the child’s best interests and minimising risk so far as is possible to do so on an interim basis, and given that the evidence remains untested, I should make the order as sought by the applicant.

10. I also take into account that, all things being equal, there will be a first interview with Dr R on 2 June 2009.  It is anticipated that provided the parties attend the interview scheduled by him promptly and are cooperative in the course of their interviews, as well as interviews with any other adults who Dr r considers are appropriate to be interviewed, that the report will be available by the end of June 2009.

11. Consequently, I will also make an order that the proceedings be listed before me for mention and directions at 10:00 am on 6 July 2009, being the earliest available date to the Court.

12. I will appoint Dr R as the child expert, as already referred to by me.  I note that the independent children’s lawyer will write to Dr R informing him briefly of the background of the parties’ relationship due to the concern raised by the respondent as to whether Dr R’s experience will be sufficient to give him insight into any issues that are relevant in relation to the child, having regard to the same-sex relationship that the parties have had.  I accept that the independent children’s lawyer will furnish the parties with copies of his correspondence and any response that has been received.  I will make an order for his report to cover the matters referred to in Exhibit 3.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  25 May 2009