Hanslow and Hanslow
[2018] FCCA 1923
•13 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANSLOW & HANSLOW | [2018] FCCA 1923 |
| Catchwords: FAMILY LAW – Parenting – interim parenting orders – where there are concerns about the Respondent’s mental health – where the final hearing adjourned to allow for psychiatric evaluation of the Respondent – interim care and schooling arrangements for ten year old special needs child. |
| Cases cited: Re G: Children’s Schooling (2000) 155 FLR 459 |
| Applicant: | MS HANSLOW |
| Respondent: | MS HANSLOW |
| File Number: | MLC 8578 of 2010 |
| Judgment of: | Judge Kirton |
| Hearing dates: | 12 and 13 June 2018 |
| Date of Last Submission: | 13 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conlan |
| Solicitors for the Applicant: | Blackwood Family Lawyers |
| Counsel for the Respondent: | Ms Jardine |
| Solicitors for the Respondent: | Pentana Stanton Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Lovering |
| Solicitors for the Independent Children's Lawyer: | Clark Family Lawyers |
ORDERS
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
The Applicant shall have sole parental responsibility for the child of the relationship, [X] born 2008 (“[X]”) in relation to all major long term issues including [X]’s health and education.
In relation to any decision the Applicant is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long term welfare of [X], the Applicant is to undertake the following actions before making such decision:
(a)The Applicant is to provide the Respondent with no less than 14 days notice in writing of any such proposed decision;
(b)The Applicant is to consult with the Respondent (by email or text communication unless she elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to the Respondent’s expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Respondent about any such proposed decision; and
(c)In the event that no agreement is reached between the Applicant and the Respondent, the Applicant shall make the final decision and within 14 days of doing so, provide the Respondent with written confirmation of the decision (by email or text is sufficient).
The interim parenting orders of 10 August 2017 and 24 April 2018 otherwise remain in full force and effect.
The Respondent attend upon a psychiatrist as nominated and directed by the Independent Children’s Lawyer for an independent psychiatric assessment and report (“the psychiatrist”) AND IT IS REQUESTED that Victoria Legal Aid provide a grant of legal assistance to the Respondent for this purpose.
The Independent Children’s Lawyer provide to the Applicant the contact details of the psychiatrist within 7 days of the attendance being booked.
The Applicant, the Respondent and the Independent Children’s Lawyer be at liberty to provide the psychiatrist with the following documents:
(a)Any affidavits and orders filed in these proceedings;
(b)s.11F Child Inclusive Conference report of Family Consultant Ms L dated 25 July 2018;
(c)Family Report of Family Consultant Ms C dated April 2018;
(d)Judgment of Magistrate Bowles dated 16 September 2016, including Family Preservation Order with conditions;
(e)Children’s Court Clinic Report by Dr C dated August 2016;
(f)Report of Clinical Associate Dr J dated 23 March 2016; and
(g)Department of Health and Human Services Final Case Plan Document March 17.
The psychiatrist be at liberty to inspect any subpoenaed documents released to the parties in this matter.
The Applicant and the Respondent do all acts and things necessary to immediately commence [X]’s transition from School B to School A with [X] to be enrolled and commence full-time at School A Primary School by the commencement of the school year in 2019.
The parties do all such acts and things to ensure that [X] attend School A, or such other High School within 5 kilometres of the Applicant’s home as nominated by the Applicant after consultation with the Respondent, from the commencement of high school until [X] graduates high school.
The parties be permitted to provide a copy of these orders to [X]’s school and any professional engaged by the parties.
The matter be adjourned to the Federal Circuit Court of Australia on 28 February 2019 at 10.00 am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them shall pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth), that time being no later than 28 days prior to the final hearing.
The Applicant’s and the Independent Children’s Lawyer costs of 12 and 13 June 2018 are reserved.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Hanslow & Hanslow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8578 of 2010
| MS HANSLOW |
Applicant
and
| MS HANSLOW |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This matter commenced yesterday as a final hearing in relation to parenting matters concerning the child [X], born on 2008 (“[X]”). [X] is a special needs child, having been diagnosed with autism spectrum disorder. The hearing commenced yesterday morning with the Applicant Mother being sworn and giving some evidence and then being cross-examined by the Respondent Mother’s counsel, Ms Jardine. During the course of the morning, I observed the Respondent Mother sitting in the courtroom moving from side to side, back and forth, and gesticulating in an agitated demeanour. She also muttered in a low, but audible voice. Her counsel, whilst cross-examining the Applicant Mother, turned to the Respondent Mother and told her to be quiet.
After the lunchbreak, the Respondent Mother’s counsel sought an adjournment of the hearing on the basis of her client’s personal circumstances. Ultimately, the further hearing of the matter was adjourned to today on the Respondent Mother’s counsel’s application so that the Respondent Mother could attend upon a doctor. This morning, the Respondent Mother has produced Exhibit R1, a copy of a letter from a general practitioner, Dr K, dated 12 June 2016. The letter states:
Ms Hanslow may participate in a court hearing tomorrow.
Any impairment in her testamentary capacity may be further clarified by an assessment by her psychologist and a urine drug screen may exclude any influence from psychoactive substances.
On the basis of this letter, my own observations of the Respondent Mother’s behaviour in court yesterday, the requirement for the adjournment of the trial yesterday and on the application of the Respondent Mother’s counsel, I have determined that it is not appropriate to proceed with the final hearing of this matter until the Court has received a psychiatric evaluation of the Respondent Mother. Therefore, I will make orders 6, 7, 8, and 9 of the Applicant Mother’s proposed interim orders requiring the Respondent Mother to attend upon a psychiatrist as nominated by the Independent Children’s Lawyer.
This course is supported by the counsel for the Independent Children’s Lawyer.
As I have already indicated to the parties, I intend to make interim orders for the sole parental responsibility of [X] in favour of the Applicant Mother. This matter has a history with serious protective concerns whilst [X] was placed in the care of the Respondent Mother, culminating in Children’s Court proceedings in 2016 where [X] was placed in the care of the Applicant Mother. Since that time, there has been significant problems with the Respondent Mother’s behaviour and her persistent failure to provide urine drug screens.
The Applicant Mother, who receives no financial support from the Respondent Mother, has been put to significant financial expense in pursuing legal proceedings in this Court in relation to various matters. Accordingly, I will make, on an interim basis, orders 1 and 2 in the Applicant Mother’s proposed interim orders. The only other outstanding matter at this time is that the Applicant Mother seeks to immediately commence [X]’s transition from School B to School A.
This application is opposed by the Respondent Mother. The Independent Children’s Lawyer has adopted a neutral position on the basis that there are arguments for and against this proposal.
The Applicant Mother’s proposal is set out in paragraphs 119 to 126 of her affidavit filed on 22 May 2018. It was also supported by the evidence given in court today of Ms L (“Ms L”), [X]’s learning aide at School B. It was also supported by a letter, which is Exhibit A1, from the principal of School A, Ms S, dated 6 June 2018. It is headed “Transition Letter for [X]”, and it sets out a proposal of how [X]’s transition to School A could be managed.
I propose to make orders 3 and 4 of the Applicant Mother’s proposed interim orders allowing for the commencement of the transition process. My reasons for doing so are as follows: the Applicant Mother deposes that it takes her from a 20 to 25 minute drive to an hour in peak-hour traffic to travel from Suburb P to her home in Suburb O. There will be less time in the car for [X] and less time driving for the Applicant Mother. The Applicant Mother is a single parent presently receiving no support from the Respondent Mother. I specifically reject the suggestion that time singing songs stuck in peak-hour traffic is equivalent to quality time at home. Secondly, [X] will not have to go to before and after-school care. Not that there is anything particularly wrong with that, but if there is a choice between the two, before and after school care or not having to go to before and after-school care, I think it is preferable that [X] not have to go to before and after-school care.
[X] will make friends in her immediate local area who will be more readily able to come to her house for visits. I accept that as a proposition generally, that children generally tend to come to their friends’ places if they live in a geographical area. Furthermore [X] is more likely to have some of her friends from School A attend whichever of the local high schools she ultimately attends, and I accept that as a general proposition.
I was very persuaded by Ms L’s evidence. She clearly adores [X]. Ms L has attended School A and has spoken to the staff there, and, ultimately, she was unable to find any specific reason why [X] should not try moving there. As to the absence of medical evidence, nothing that has been presented to me indicates any serious or significant behavioural problems that would cause me any alarm about this proposed change. It seems to me a natural progression that is being managed by the Applicant Mother, who impresses me as a woman who is sensitive to [X]’s needs and is concerned for her best interests.
I am also persuaded by the reasoning of the Full Court in Re G: Children’s Schooling (2000) 155 FLR 459, although I do note that this is a case that does not relate to a special needs child.
For these reasons, I will make the orders that I have set out, and I will also set the matter down for Final Hearing.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 20 July 2018
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