Raymond and Harold

FAMILY COURT OF AUSTRALIA

RAYMOND & HAROLD

[2008] FamCA 553

FAMILY LAW - ORDER FOR FAMILY CONSULTANT REPORT - ADJOURNED LAT

Family Law Act 1975 (Cth)

APPLICANT:

MR RAYMOND

RESPONDENT:

MS HAROLD

INDEPENDENT CHILDREN’S LAWYER:

MR CRABTREE

FILE NUMBER:

MLF

3001

2006

DATE DELIVERED:

16 JULY 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

16 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CROZIER-DURHAM

SOLICITOR FOR THE APPLICANT:

T.J. MULVANY & CO

COUNSEL FOR THE RESPONDENT:

MR BEAR

SOLICITOR FOR THE RESPONDENT:

MAHONYS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR CRABTREE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DONALD S. LAMPE

ORDERS

IT IS ORDERED:

THAT pursuant to s62G(2) a Family Report be prepared by a consultant nominated by the Director of Court Dispute Services as to all relevant parenting issues concerning or impacting upon S born … November 2002 and for that purpose to confer with the parties, and S if appropriate, and consider all matters and outcomes in his best interest and have regard to:
(a)       whether there be a shared equal parenting or sole parenting order;
(b)       with whom should S live;
(c)what time should otherwise be spent by a parent with S and the level of communication;
(d)       the appropriate changeover venue for collection and delivery;
(e)how the consent orders of 30 November 2007 have operated for the benefit of S;
(f)the relationship of the parents and how that can be better harmonised pursuant to paragraph 6 of those consent orders.
THAT a written report be prepared by the Family Consultant for release to the parties and the court on or before 2 September 2008.
THAT the father forthwith provide to his solicitor, who is to provide to the Independent Children’s Lawyer, the name and contact details of any medical or psychological professional with whom he has engaged over the past ten years and that leave be granted to the Independent Children’s Lawyer to issue a subpoena(s) for the provision to the court of all such records and that upon lodgement with the Court they be released to the Independent Children’s Lawyer.
THAT the medical records of the mother now before the court by subpoena be released to the Independent Children’s Lawyer for reading and assessment, and discussion between legal practitioners only, with the intent that all matters of and relevant to S and his best interests and all issues of parenting capacity are to be disclosed to the Family Consultant and the court.
RESERVE liberty to all parties to apply generally on these related subpoena and medical health issues, but only upon proper notice to all parties and at a time appointed by the court.
THAT for the purposes of preparation of the report the Family Consultant read and have regard to the earlier report of Ms D, Psychologist, and any updated responses that either the mother or father may wish to give in response thereto.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties and to the Family Consultant.
THAT the matter be otherwise listed for mention before Young J on 24 September 2008 at 10.00 a.m.

IT IS NOTED that publication of this judgment under the pseudonym Raymond and Harold is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3001 of 2006

MR RAYMOND

Applicant

And

MS HAROLD

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The matter of Raymond & Harold and the Independent Children's Lawyer is before me this day for what was intended to be the first day of a less adversarial trial. Mr Crozier-Durham of counsel appears for the applicant father; Mr Bear, solicitor, for the respondent mother, and Mr Crabtree appears for the independent children's lawyer.
The short background to this matter is that orders were made by consent on 30 November 2007 by her Honour Brown J. Those orders provided for the parents to have equal shared parental responsibility for the child, S, born in November 2002. S was to live with his mother and spend time with and communicate with his father as was prescribed in the orders. Under the orders, S is now spending one alternate weekend Friday to Monday inclusive with the father and one other day, that is, four days in a fortnight.
Pursuant to those orders, the mother now complains that paragraph 5 is not being adhered to, in that S does not contact her when with the father. That is denied by the father. Paragraph 6 is a curious order, in that it required both parties to attend upon a counsellor to assist them to harmonise their routines with S in their respective households. Seemingly, the parties did not avail themselves of that opportunity or comply with their own consent order.
The matter comes back to court on the basis of the amended application filed by the father on 10 June 2008, supported by a parenting questionnaire. The mother filed a response on 10 July 2008 together with her questionnaire. Because of the earlier proceedings before the court, there are a wealth of affidavits which I have not read. They largely deal with interim orders or orders leading up to the consent orders of 30 November 2007 and I observe that the orders in relation to equal shared parental responsibility and the other orders were not interim in nature, they were of course the time spent with orders and other orders were developing and expansive orders that would or may change as S grows older.
The parties had the benefit of a report of Ms D that was filed on 3 September 2007. That report is before the court and is relevant to these proceedings as it largely explains the professional background available by way of assistance to the parties in their agreement to consent orders.
The dispute between the parties now largely centres around whether it is in the best interests of S for the sole equal parental orders to remain and otherwise what level of time should be spent by the father with S. He would have the period during school now increased to five nights per fortnight. The mother resists that enlarged time period. Otherwise, Mr Bear has foreshadowed a particular issue as to venue, that is, the collection and drop-off point for changeover of S, and as I earlier mentioned, paragraph 5 of the past orders and issues as to their compliance by both parties.
A dispute before me was whether Ms D should prepare a further report. That was the position of the father but opposed by the mother. That would be at a cost to both parties. Seemingly, the preferred position of the mother was for Mr P to be engaged, he having earlier seen all parties but in particular the mother and S, though he has not prepared a report for the court. I indicated I would not authorise the appointment of Mr P as I was looking either for consistency with the reappointment of Ms D or otherwise a fresh start in the interests of limiting past concerns.
Neither the mother nor father are legally aided. They are paying their own costs of this enlarged and seemingly ongoing litigation. That is a real cost to both of them and of course will limit the moneys otherwise available to them and for parenting, education and the like for S. Commonsense should apply and I have urged the parents to harmonise their relationship, to discuss S and to make orders of some permanency and importance without necessarily an ongoing court hearing. Ultimately, that is up to them as parents to decide and to cooperate with each other.
I will appoint a family consultant from the Court to make a report. The first interview date will be 14 August 2008 and the parties and the Independent Children’s Lawyer now need to approach the director of Child Dispute Services and confirm that appointment. I will require the release of the report by Tuesday, 2 September 2008 and will otherwise then list that matter for mention before me on a subsequent date.
Mr Crozier‑Durham has foreshadowed some interim issues that may need to be resolved, such as the Christmas school holiday period, should this matter not be finally resolved by that date. I know from my docket that I have limited, if any spare days prior to Christmas and this matter may, if the parties are unable to bring commonsense, either by themselves or their legal practitioners to the cause, simply have to await the ongoing and extended less adversarial trial hearing.
As to the matters the family consultant need inquire upon, I propose to highlight the issue of sole or joint shared parental responsibility, together with their particular relationships with S and with each other. The other issues that Mr Bear has foreshadowed can also be the subject of interview and report.
As a principle there is no medical privilege attached to files and documents of each of the parents and their medical history. That is relevant in this case because the file of the mother has been subpoenaed by the Independent Children's Lawyer and is before the court. I have not opened and read that file, largely because of time restraints in dealing with this matter this morning, given that S has a longstanding medical appointment to attend this day and it is necessary for the mother to collect him from school and take him to that appointment at 2.00 p.m.
The common position of all counsel is that the mother's file be released to the Independent Children's Lawyer to read and assess. There is no objection taken to the use or disclosure of any psychological or psychiatric issue or history therein. The objection is taken to matters of physical health, whatever they may be.
From the father's position, he is to also identify any treating psychologist or other professional assistance that he has received and that may be of relevance to parenting issues and to provide that name to Mr Crabtree to subpoena those documents to court forthwith. I foreshadow that those documents will be released to Mr Crabtree for reading and assessment.
My intention very much is that the family consultant has full access to all relevant psychological or general health files or issues that may, in any way whatsoever, impact upon the parents or their ability to care or provide for S. I carefully make no finding because I do not know the content of documents and whether they be real issues. If that necessitates Mr Crabtree having to relist the matter before me prior to 14 August 2008, then that need be done upon a proper approach to my associate and with full notification to all parties as to the issue and requirement of the matter to be mentioned. I would express the view that I hope that does not occur because the parties, through their solicitors and directly themselves, should be able to talk through whatever issues there may be.
I will not permit any further affidavits to be filed pending the release of the family consultant's report. My intent on the adjourned hearing date is for that report to be released to the parties and received into evidence and subject to my court time, for any interim hearing then to be determined. That may not then be possible. I have raised with all legal practitioners the way in which this mention should be treated insofar as there has been no evidence given and I do not intend that it forms part of the first‑day hearing and evidence. There is common agreement by all practitioners to that approach and the priority in this matter is to have the updated family consultant's report completed and available.

I certify that the preceding paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate: …

Date: 18 July, 2008

[2008] FamCA 553

16 July 2008