Harrison and Halliday (No. 3)

[2013] FamCA 411

FAMILY COURT OF AUSTRALIA

HARRISON & HALLIDAY (NO. 3) [2013] FamCA 411

FAMILY LAW – CHILDREN – INTERIM ORDERS – with whom a child spends time – where there is an extreme level of disagreement as to the relevant facts – best interests – consideration of family report – orders made increasing the time the child is to spend with the father pending trial.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Harrison

RESPONDENT: Ms Halliday

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 2196 of 2011

DATE DELIVERED: 21 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Koziol

SOLICITOR FOR THE APPLICANT: B L Legal

COUNSEL FOR THE RESPONDENT: Mr Wabnitz

SOLICITOR FOR THE RESPONDENT: Daniel John Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Fuda
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

COUNSEL FOR MINISTER FAMILIES SA Ms Cox

SOLICITOR FOR MINISTER FAMILIES SA Crown Solicitor’s Office

Orders

1. The Court release a copy of the Family Report dated 14 May 2013 to the Crown Solicitors Office acting on behalf of the Minister for the Department for Education and Child Development - Families SA.

1. Leave to the Independent Children’s Lawyer to issue subpoenas to SAPOL, Families SA and D Hospital concerning either of the parties and the child P born on … February 2010 and the fees of the issuing of subpoenas are otherwise waived.

1. Leave to the father to issue a subpoena to E Medical Practice for production of documents in relation to the mother or the child P.

1. Within twenty-one [21] days the mother obtain and file and serve a copy of the report from Dr F (G Medical Practice, address omitted) setting out the conditions and treatment of the child P in the last six [6] months.

1. Within twenty-one [21] days the mother obtain and file and serve a copy of a full report from Ms H, Psychologist, Child and Family Specialist (address omitted).

1. The mother undergo a psychiatric assessment for an Axis I or Axis II disorder by a psychiatrist to be nominated by the Independent Children’s Lawyer and that within fourteen [14] days of such psychiatrist being nominated by the Independent Children’s Lawyer each of the parties provide to the psychiatrist a copy of all affidavits which they have filed in these proceedings to date and the Independent Children’s Lawyer supply to the psychiatrist a copy of the Family Report and any other relevant reports that are then available UPON NOTING the question of costs of the assessment to be borne by the mother.

1. The mother forthwith take all steps to obtain a global development assessment of the child P at D Hospital, Child Development Unit by the mother seeking a referral to be undertaken within twenty-one [21] days from today and a copy of the Family Report to be provided by the mother to the assessment team prior to the assessment.

1. During the period of the adjournment the child P spend time with the father from 5.00 pm on Friday to 5.00 pm on Sunday each alternate weekend commencing on Friday 31 May 2013 on the basis that the handover take place at C Police Station, address omitted.

1. Further consideration of the matter is adjourned to Thursday 5 September 2013 at 9.15 am before the Honourable Justice Dawe.

1. The Minister’s representative is released from further attendance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrison & Halliday  (No. 3) 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 2196 of 2011

Mr Harrison

Applicant

And

Ms Halliday

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the question of the adjournment of the proceedings, I have made various orders for significant steps to be undertaken, including the filing and serving of various reports within 21 days from today.  Significantly, the mother is to undertake the psychiatric assessment and reports are to be provided in relation to the child P’s developmental delays about which significant questions are raised in the Family Report. 

2. In deciding what orders should apply during the period of the adjournment, the Court is obviously required to take into account, in accordance with the decision of Goode & Goode (2006) FLC 93-286 and the provisions of the Family Law Act 1975 (Cth) (“the Act”) what is in the best interests of the child.

3. The difficulty in this matter is the extreme level of disagreement as to the relevant facts to be brought into account.  There are significant allegations of family violence which have been made by the mother and denied by the father.  Much material that will need to be determined when the matter is listed for final hearing.  The Court does have the assistance of the Family Consultant’s report, being the most independent information now before the Court, and the recommendations that are made in relation to that report.

4. Whether the child has been alienated from the father is one of the significant issues to which reference is made in the report, as well as the mother’s allegations concerning the father’s past behaviour. 

5. The primary considerations under the Act are that the child be protected from any risk of harm, and that there be steps taken to ensure benefit to the child of having a meaningful relationship with each of the child’s parents. I take into account the issues that are raised in relation to P’s developmental difficulties and the need for those to be assessed.

6. There are also allegations in relation to the mother’s mental health and the need for that to be the subject of an independent report. I have made orders taking the primary considerations into account and not ignoring the other factors of section 60CC, namely the capacity of the parties and the attitude of the parties.

7. I am also taking into account the age of P, (“the child”) and the history of the matter.  I consider it important for the child to both be protected from any risk of harm, and for the child to have an ongoing benefit of a relationship with both of the child’s parents.

8. One of the conclusions made by the Family Consultant is that at paragraph 75 of the Family Consultant’s Report:

   Overall, in the absence of evidence to support her claims with regard to domestic violence, and with information to suggest that [the father] and [the child] share a positive relationship which is likely to be of a great benefit to [the child] in his development, the Family Consultant was left to question whether [the mother] was vexatious in this matter or held genuine concerns for [the child] due to a firm belief in her own reality.  With an apparently rigid and negative view of [the father], it was difficult to envisage how [the mother] could positively support [the child] in his relationship with [the father].

9. In that report the Family Consultant under the heading “evaluation”, refers to the positive interaction that she observed between the father and child and on that basis drew some conclusions about the positive and supportive relationship that the father had with the child which at paragraph 67 the Family Consultant noted, “appeared to have been established despite frequent disruptions and long absences”. 

10. The Court is yet to determine the basis of the allegations made by the mother, but notes that many of these issues were dealt with by the German Court when there was a guardian ad litem available, and assessment and conclusions reached in relation to the history of the matter when those orders were made.

11. On that basis, therefore I can consider that it is appropriate to have a slight increase in the time that the child spends with the father during the period of the adjournment.  To enable that to take place, I am proposing that during the period of the adjournment the child spend time with the father from 5.00 pm on Friday until 5.00 pm on Sunday each alternate weekend, and on the basis that the handovers take place inside C Police Station.  I have not altered the handover to B Police Station at this stage, as apparently the mother asserts some difficulty in obtaining appropriate transport for her and the child to B Police Station.  That can be a matter which will be the subject of further argument on the next occasion.  The time spent from 5.00 pm Friday until 5.00 pm Sunday each alternate weekend commences Friday, 31 May. 

12. An adjournment of at least two months is necessary in order for the psychiatrist report to be obtained. 

13. Further consideration of the matter is adjourned to 5 September at 9.15 am before me.

14. I waive the subpoena fee for the Independent Children’s Lawyer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 May 2013.

Associate: 

Date:  5 June 2013