HENDRICKSON & MURRELL

[2012] FamCA 744

FAMILY COURT OF AUSTRALIA

HENDRICKSON & MURRELL [2012] FamCA 744

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – application by the father seeking orders for unsupervised time with the child – where the current orders provide for the child to spend supervised time with the father – where there are concerns about the father’s mental health – where the Court was awaiting the preparation of an updated report in relation to the father’s psychiatric health – best interests – where the Court was of a cautious approach should be adopted at this stage of the proceedings – continuation of the orders that the father’s time with the child be supervised.

Family Law Act 1975 (Cth)

APPLICANT: Mr Hendrickson

RESPONDENT: Ms Murrell

INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

FILE NUMBER: ADC 272 of 2012

DATE DELIVERED: 14 August 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Hume Taylor & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

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

Orders

1. During the period of the adjournment paragraphs 7 and 8 of the orders of 8 February 2012 are continued.

2. The father is to comply with the orders to pay for Dr E’s report and updated report namely paragraph 3 of the orders of 14 June 2012, that report is to be available 6 weeks from today NOTING THAT the father has indicated it could be 2 weeks from today if payment is made by the father to Dr E.

3. Any documentary information provided by the father to Dr E either before now or before his report is to be copied by the father and the father is to provide all such copies to the solicitors for the mother and the Independent Children’s Lawyer with such copies to be provided within 28 days of today.

4. Further consideration of the matter is adjourned to 23 October 2012 at 9.15 am to allow consideration of Dr E’s report.

5. Further consideration of the inspection of the remaining documents from the NSW Police subpoenas is adjourned to 23 October 2012 at 9.15am.

IT IS NOTED that publication of this judgment by this Court under the Hendrickson & Murrell 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 272 of 2012

Mr Hendrickson

Applicant

And

Ms Murrell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The orders in relation to this matter were made on 14 June 2012.  It appears from what the father now says at the bar table that he filed what purported to be an appeal from the orders of 14 June 2012 and then withdrew it.  At the time he filed the appeal, according to the correspondence which I have read out and is now on the court file which will become exhibit 1 in this matter, the father had $1,004 available to him in July of this year which he used to file the appeal and which has been now returned to him.

2. The matter comes on before me this morning in relation to orders which the father is seeking in relation to the interim orders concerning the child, H (“the child”), who was born on in June 2009.  Specific orders were made on 14 June 2012 which provided for a psychiatrist, Dr E, to provide an updated report in relation to the father based upon information supplied by the Independent Children’s Lawyer, which included the father’s criminal history and antecedent history.

3. It is apparently the provision of that information which is the basis of the objection by the father.  He also made some comments from the bar table about not being able to afford the payment of Dr E’s original report or the updated report.  The application in a case filed by the father in document 40 seeks:

   “(1)Time with father, [Mr Hendrickson] shared parenting rights from 9 am Sunday to 5 pm Monday.

   (2)To stay order dated 14 June 2012, paragraphs 2, 3, 4, 5, 6, 7.”

   There is an affidavit of the father filed on that date also which I have taken into account.  I also take into account the affidavit which I gave permission for the father to file this morning notwithstanding that he had not filed or served it in accordance with the previous court orders.  

4. The question now remains as to what orders should be made on an interim basis concerning the father’s time with the child.  The existing orders at the moment are the orders made by Burr J on 8 February 2012.  Burr J, as he then was, made an order that the child live with the mother and also made an order that the child spend time with the father each alternate weekend from 9.00 am to 12 noon each Saturday and Sunday, save and except Saturday 10 March 2012 and each alternate Monday from 9.00 am to 3.00 pm on condition that that time be supervised at all times by the paternal uncle or paternal grandmother and on further conditions concerning the Independent Children’s Lawyer having some time with the proposed supervisors.

5. It is put to me this morning that those orders should continue pending the resolution of the matter.  The father clearly opposes that and seeks orders that he spend unsupervised time with the child in accordance with his application.

6. As is clear from the legislation what is the most important matter in this case is what is in the best interests of the child.  The primary considerations are the significant factors.  Those primary considerations are to ensure that the child is protected from any form of abuse, whether that is physical, psychological or emotional and at the same time to consider the benefit to the child of having a meaningful relationship with both of his parents.

7. Taking into account the serious allegations which are made and the concern of the mother in relation to the father’s mental health, I accept that it is in the child’s best interests that at this time and until such time as there is the updated report of Dr E (based upon all appropriate information available) to consider that it is in the child’s best interests that the court err on the side of caution and continue with the requirements of paragraphs 7 and 8 of the orders of Burr J, as he then was, made on 8 February 2012.

8. Those matters can be reconsidered when the father has taken all appropriate steps to ensure that an updated report in relation to his psychiatric health is provided to the court from Dr E and that report being based upon all appropriate information available to Dr E.  I therefore order that:

   a)During the period of the adjournment, the paragraph 7 and 8 of the orders of 8 February 2012 are continued.

   b)The father is to comply with the orders to pay for Dr E’s report and updated report.

   c)Paragraph 3 of the order of 14 June 2012 is repeated.  That report is to be available, if possible, within six weeks from today.

9. The father is interrupting my submissions to put to me that two weeks would be fine.  If he pays the account of Dr E and the cost of the updated report, within the two weeks then I will anticipate that Dr E will be able to provide the report to the court and the parties shortly thereafter, and in any event, if possible, within six weeks from today.  If it can be provided earlier then so be it, but I do not change the Court’s order.  I will also order that any documentary information provided by the father to Dr E, either before now or before his report, is to be copied by the father, and the father is to provide all such copies to the solicitors for the mother and Independent Children’s Lawyer.

10. I do that on the basis that the other parties, and the Court, will need to know the full basis upon which the update report of Dr E is obtained.  Therefore, the matter will have to be adjourned to a time which will allow consideration of Dr E’s report.

11. A copy of any document the father has supplied to Dr E either before or after this date, is to be provided by the father to the mother’s solicitor and the Independent Children’s Lawyer within 28 days from today.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 August 2012.

Associate: 

Date:  31 August 2012