Murrell and Hendrickson (No 2)

[2012] FamCA 928

FAMILY COURT OF AUSTRALIA

MURRELL & HENDRICKSON (NO. 2) [2012] FamCA 928

FAMILY LAW – CHILDREN – interim orders – where the mother seeks that orders that the child spend time with the father be suspended – where the father has failed to comply with previous orders including those that he obtain a psychiatric report – where the Court did not have before it sufficient information to determine the best interests of the child – where it was appropriate for the Court to err on the side of caution – orders that the child’s time with the father be suspended.

Family Law Act 1975 (Cth)

APPLICANT: Ms Murrell

RESPONDENT: Mr Hendrickson

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of SA

FILE NUMBER: ADC 272 of 2012

DATE DELIVERED: 23 October 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: Hume Taylor & Co

COUNSEL FOR THE RESPONDENT: Ms Hicks [Courtesy to Court]

SOLICITOR FOR THE RESPONDENT: n/a

COUNSEL FOR THE INDEPENDENT

 CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

1. During the period of the adjournment the orders for the child H to spend time with the father are suspended.

2. During the period of the adjournment paragraph 7 of the Order of 8 February 2012 (which provides for the child H to live with the mother) is continued.

3. Further consideration of the mother’s Application in a Case filed on 17 October 2012 is adjourned to 30 November 2012 at 9.15 am before the Honourable Justice Dawe.

4. Any affidavit material upon which the father seeks to rely is to be filed and served by 4.00 pm on 21 November 2012.

5. The question of the mother’s costs in relation to the Application in a Case filed on 17 October 2012 and attendance today is reserved to the next occasion.

6. The question of the Independent Children’s Lawyer’s costs in relation to the Application in a Case and attendance today is reserved to the next occasion.

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

Ms Murrell

Applicant

and

Mr Hendrickson

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me this morning as a result of an Application in a Case filed by the mother on 17 October 2012 in which it is sought that the Initiating Application of the father filed in January 2012 be dismissed and ancillary orders. 

2. It is clear from submissions made to me this morning that the mother seeks to continue the orders that the child live with her but seeks that there be no orders providing for the child to spend time with the father. 

3. The Application in a Case was served upon the father on 18 October 2012 by email.  Neither the mother nor the father appear from Town B today.  I am told that the mother’s flight was cancelled and therefore prevented her from attendance.  I am told from the bar table by counsel appearing for the father that he was unable to attend due to a lucrative business appointment in Town B.  Mr Bowler appears for the mother;  Ms Hicks for the father and Ms Cocks for the Independent Children’s Lawyer.

4. The proceedings have had several interim hearings before Justice Burr (as he then was) and more recently since June this year before me where orders have been made requiring steps to be taken to obtain a psychiatric report in relation to the mental health of both of the parties.  In particular the father was ordered to attend upon Dr E for the purposes of obtaining a report.  The father has also been ordered to provide to the mother’s solicitors and the Independent Children’s Lawyers copies of all documents which were provided by him to Dr E.  He was ordered to pay the costs of the first and second reports of Dr E.  

5. The affidavit of the mother filed in support of the Application in a Case sets out particulars of the non-compliance by the father and concerns in relation to the welfare of the child including concerns about the supervision of the child during the time that is spent with the father which is meant to be supervised either by the father’s mother or the child’s uncle.

6. Ms Hicks appears this morning indicating that she has received instructions from the father.  She has not filed a Notice of Acting as the father has not yet obtained his file from the previous solicitors, Ms Pederick, but she is informed that he will take steps to arrange the same “within the next fortnight”. 

7. There are serious issues in relation to the welfare of the child but it is also significant that there has been ongoing apparent failure to comply with specific orders of this Court which would enable the Court to make the appropriate decision concerning what is in the best interests of the child. 

8. The Court is now told that the second report from Dr E has been received by the father but the solicitor does not have instructions to release the same to the other parties or the Court.

9. When considering whether the Application in a Case should be dealt with today and the father’s proceedings struck out, care has to be taken to ensure that there is ongoing fairness to the father. 

10. I am aware of the affidavit material to which is annexed correspondence from the Independent Children’s Lawyer which clearly sets out the obligations of the father and refers to the specific orders about which it is now alleged he has failed to comply.  Notwithstanding that and bearing in mind that the proceedings relate to the best interests of the child, I am satisfied that it is appropriate to adjourn the proceedings to enable the father to give proper instructions to his new counsel and to enable the Court to receive a full and detailed explanation of the father’s failure to comply with the orders to the present date, to enable him to be given an opportunity to comply with all of the orders and to enable the Court and the other parties to receive the reports of Dr E in accordance with orders which were made as long ago as February 2012.

11. In view of the material which is before the Court in relation to the mother’s concerns about the father’s mental health, the concerns about the adequacy of supervision and the failure of the father to comply with the orders of the Court which are significant in allowing the Court to determine the best interests of the child, I am satisfied that it is in the best interests of the child that during the period of the adjournment, the order which provides for the child to spend time with the father be suspended.  That is on the basis that it is not a form of punishment for the father but taking into account the primary consideration which requires the Court to consider the need to protect the child from any risk of harm, whether that be physical, psychological or emotional harm. 

12. It is for that reason therefore that the orders providing for the child to spend time with the father are suspended during the period of the adjournment, and during the period of the adjournment the order which provides for the child to live with the mother (paragraph 7 of the order of 8 February 2012) is continued. 

13. I have not made any specific direction as to compliance with the existing orders but the existing orders are there and they are to be complied with.  I will take into account any ongoing failure to comply with the orders and any delay in now complying with the orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 October 2012.

Associate: 

Date:  9 November 2012