Harrison and Halliday (No 4)

[2013] FamCA 784

FAMILY COURT OF AUSTRALIA

HARRISON & HALLIDAY (NO 4) [2013] FamCA 784

FAMILY LAW – CHILDREN – INTERIM ORDERS – with whom a child spends time – where the mother seeks a variation of existing parenting orders such that the child would spend less time with the father – best interests – no orders made varying the time the child currently spends with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrison

RESPONDENT: Ms Halliday

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 2196 of 2011

DATE DELIVERED: 5 September 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Koziol

SOLICITOR FOR THE APPLICANT: B K Legal

COUNSEL FOR THE RESPONDENT: Mr Wabnitz

SOLICITOR FOR THE RESPONDENT: Daniel John Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

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

Orders

Upon noting

1. Within seven [7] days the mother’s solicitors will provide to the father’s solicitors and the Independent Children’s Lawyer a list of all medical practitioners or other treating specialist who have provided any advice or treatment for the child.

2. The existing orders for the child to spend time with the father are continued.

IT IS ORDERED THAT

1. Leave is given to the father’s solicitors to issue subpoenas to produce documents to the South Australian Police and the Department of Foreign Affairs & Trade.

2. An injunction is granted restraining both parties from taking the child P born on … 2010 for any assessment or for any medical or dental treatment organised by either parent without prior written consent of the other parent SAVE AND EXCEPT for emergency treatment.

3. The mother is restrained and an injunction is granted restraining her from taking the child for any further treatment or assessment to Dr H without further order of the Court.

4. The parties use a communication book being handed over at the time of collection and return of the child in which the parties provide the other parent with information concerning medical and significant social issues concerning the child.

5. UPON NOTING the parties currently estimate the length of trial to be eight days the final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Docket Registrar on a date to be advised by the Court with an order being made at the directions hearing for a further updated family report to be prepared UPON FURTHER NOTING that Ms J conducted the earlier family report.

6. The father spends extra time with the child on Saturday 14 September 2013 from 8.00 am to 5.30 pm with handover to take place at the C Police Station at C Street, Adelaide.

7. Liberty to the parties to apply to the Court at short notice for a duty listing if with the assistance of the Independent Children’s Lawyer they are not able to agree sensible orders for the Christmas celebrations and the child’s birthday celebrations.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrison & Halliday  (No 4) 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. As the parents would be aware the communication book being presented in Court at trial should be a significant deterrent for the parties to make any stupid or aggressive comments in the communication book which will only make matters worse for them when the matter comes to trial. 

2. As far as listing the matter for trial is concerned I agree with the submissions that the matter should be referred for allocation to a trial date and the matter prepared for trial. 

3. The estimate of the trial is something I usually include when I refer the matter to directions by the Registrar.  It would seem at the moment there are a large number of witnesses, but it is not clear how many of them will be required.

4. The main interim issue is the ongoing order in relation to the time the father spends with the child.  There is significant material which has been filed since I last heard the matter including the reports from Dr F, Dr K and the psychiatric assessment of the mother.  The difficulty with all of those reports and the other affidavit material I have received is that it requires the impossible task of setting the facts alleged by one party up against the facts alleged by the other party, and also putting those facts in the context of the information which was provided to the experts who have prepared reports. 

5. I take into account that there have been considerable serious issues raised as to the welfare of the child in the care of the father.  Those issues were raised by the mother and the persons to whom she has taken the child and provided information concerning the child, including the bruising of the child observed in late August 2013.  Those reports and all of the allegations made by each of the parties need to be seen in the context of the history of this matter and the difficult relationship between the parents and the difficulties in the ongoing interaction between the parents particularly as it concerns the welfare of the child, P.

6. The Application in a Case which was filed during the period of the adjournment by the mother seeks orders that the child spend time with the father each alternative Saturday from 8.00 am until 5.30 pm with handovers at the C Police Station.  That is the significant order in relation to the father’s time.  There are other orders sought in that Application in a Case filed on 2 September 2013. 

7. I have heard the detailed submissions of counsel for the mother, counsel for the father and counsel for the Independent Children’s Lawyer.  The concern I have is the need to balance the provisions of the Family Law Act 1975 (Cth) which require me to consider the best interests of the child as the paramount consideration taking into account the need to provide the child with the opportunity to spend meaningful time and have a meaningful relationship with each of his parents, but primarily to protect the child from any harm.  At the moment the Court is not in a position to test the facts presented by each of the parties.

8. The mother appears to present a case which says that the bruising which she observed on the child, and which was observed by the medical specialist, was bruising caused either in the care of the father or by the father.  The difficulty is that, although the Court accepts that there was bruising observed on the child, the query is how that bruising occurred, when it occurred and who was responsible for it occurring or was it simply the bruising that might result from some accident or normal child activity.  The reports from the hospital suggest that the bruising was, in fact, as a result of some form of abuse.  Those matters have to be tested.  Balanced off against that, however, is the fact that notwithstanding what the mother says about her concerns she proposes that the child spend a whole day from 8.00 am until 5.30 pm each alternate Saturday.

9. Taking into account, as I must, all of the issues concerning the child’s welfare and balancing them out, and in particular relying upon the submissions of the counsel of the Independent Children’s Lawyer, I am not satisfied at this stage of the proceedings that the evidence requires a variation of the orders for the father to spend alternate weekends with the child. 

10. The orders, therefore, in that regard, will be continued save and except that there is a request for the child to spend time with the father on the weekend commencing Friday 13 September 2013 to enable the child to join in with his sibling’s birthday celebration.  I therefore propose that on Saturday 14 September 2013 the father spend time with the child from 8.00 am that Saturday until 5.30 pm that Saturday with handovers to take place at the C Police Station at C Street, Adelaide.

11. I have been requested to vary the handover place to make it a more “halfway place” for the parties to travel.  The mother has given her address as Suburb L, Adelaide which is therefore very close to C Street.  The father’s address is further away.  The child may have adapted to, or at least become used to, attending handovers at the C Street Police Station.  I am concerned about a further change from the child’s point of view rather than the parents’ point of view taking into account the assessments that have been made in relation to the child’s developmental situation.  Therefore I do not propose to change the place of handover for the child. 

12. I have already made orders in relation to subpoenas and other directions.  I am also being asked by the Independent Children’s Lawyer to give consideration to the mother being restrained from taking the child for therapy or any other assistance to be provided by Dr H.  There is considerable material on the Court file as to the involvement of Dr H who either was or was not providing treatment in the past for the child.  It would appear that the position of the mother now is that Dr H was providing the mother with assistance in her care of the child.  Bearing in mind the number of appointments for the child and the number of experts who have given opinions concerning the child it is in the child’s best interests, and would benefit the litigation as far as the parties and the Court are concerned, if there was an order which provided for the mother to be restrained from taking the child for any further treatment or assessment by Dr H without further order of the Court. 

13. The orders I have made in relation to the preparation of the matter for trial should mean that in the near future the matter will be listed for final hearing and proper assessments carried out by the designated Family Consultant. 

14. I have already indicated that at this stage I am not prepared to deal with an injunction concerning change of name on the oral application of the Independent Children’s Lawyer, but would consider, if it is necessary and the parties cannot agree, to give that consideration bearing in mind that I am told that there has already been an order of the Court in Germany in that regard.  One of the significant factors that the parents should obviously agree upon is the name that is used for the child.  One parent using one name for the child and the other parent using another name for the child raises obvious concerns for any child but especially for a child who has apparently experienced some developmental delays.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 September 2013.

Associate: 

Date:  24 September 2013