State Central Authority and Spring-Ernst (No 3) - [2013] FamCA 1077

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & SPRING-ERNST (NO 3)

[2013] FamCA 1077

FAMILY LAW – PRACTICE AND PROCEDURE – Psychiatric assessment of effect on children of move to USA.

APPLICANT:

State Central Authority

RESPONDENT:

Ms Spring-Ernst

REQUESTING PARENT Mr Ernst

INDEPENDENT CHILDREN’S LAWYER:

Ms C. Smith

FILE NUMBER:

MLC

3927

2013

DATE DELIVERED:

3 September 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

3 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porritt

SOLICITOR FOR THE APPLICANT:

Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Viravout

SOLICITOR FOR THE RESPONDENT:

Berger Kordos

COUNSEL FOR THE REQUESTING PARENT
SOLICITOR FOR THE REQUESTING PARENT	Kennedy Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.This matter be fixed for final hearing before me on 18 and 19 November 2013 at 10.00 am.
2.This matter be listed for mention in Court before me on 11 November 2013 at 4.30 pm for the purpose of checking on the readiness of the matter for trial.
3.The parties and the father of the children do all acts and things necessary to enable the children J born … 2006 and F born … 2008 (“the children”) to be assessed by a psychiatrist nominated by the independent children’s lawyer.
4.The assessment is to be of the mental health risk (if any) to the children (or either of them) from being returned to the United States of America in the care of their mother with a resumption of the week about parenting arrangements currently in force in that jurisdiction. Furthermore, how any such risk could be ameliorated or tolerable for the children in the short and immediate term until a court of competent jurisdiction in the United States of America is seized of the matter and the children receive appropriate mental health care. If appropriate, such assessment detail the kind of mental health care recommended for the children (or either of them).
5.The mother and the father be responsible for and pay to the independent children’s lawyer an amount equivalent to one half of the cost of the mental health assessment of the children not covered by any grant of assistance which the independent children’s lawyer receives for the assessment.
6.The independent children’s lawyer make arrangements for the assessment appointments and the mother and the father make their financial contributions to the independent children’s lawyer to be held n trust well prior to the appointment date with the psychiatrist.
7.There be a transcript of the evidence given this day by Ms E, family consultant, and when transcribed a copy be sent to the parties to the proceeding.
8.The independent children’s lawyer be responsible for providing to the psychiatrist who conducts the assessment of the children a copy of all documents that should be read by the psychiatrist or to which he/she should have access but, in any event, to include the report of Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State Central Authority and Spring-Ernst (No 3)

Details

AGLC: State Central Authority and Spring-Ernst (No 3) [2013] FamCA 1077
Case: [2013] FamCA 1077
Decision Date: 3 September 2013

CaseChat Overview and Summary

In the matter of *State Central Authority and Spring-Ernst (No 3)*, Bennett J of the Family Court of Australia considered an application concerning two children, J and F. The dispute involved the potential return of the children to the United States of America to live with their mother, with a resumption of existing week-about parenting arrangements. The court was tasked with assessing the mental health risks to the children associated with this return and determining how any such risks could be managed or deemed tolerable in the interim period before a United States court could address the matter.

The court was required to determine the specific nature of a psychiatric assessment to be conducted on the children. This assessment was to focus on the mental health risks, if any, posed by their return to the United States under the care of their mother and the continuation of current parenting arrangements. Furthermore, the court needed to ascertain how any identified risks could be ameliorated or considered tolerable for the children in the short term, pending a determination by a competent United States court. The assessment was also to detail any recommended mental health care for the children.

Bennett J ordered that the parties and the father of the children were to cooperate fully to enable the children to be assessed by a psychiatrist nominated by the independent children’s lawyer. The assessment was to address the specified mental health risks and potential amelioration strategies. The mother and father were to share equally the costs of this assessment not covered by any grants of assistance. The independent children’s lawyer was to arrange the appointments and ensure financial contributions were made in trust prior to the assessment. The court also ordered that a transcript of the evidence given by a family consultant, Ms E, be provided to the psychiatrist, along with her report. By consent, the mother was to provide all necessary documentation and cooperation, at the father's expense, to support the father's application for visas for the children to travel to the United States. The father's lawyer indicated that the father would personally apply for these visas in Melbourne.

Orders

Orders of the court

IT IS ORDERED THAT:

1. This matter be fixed for final hearing before me on 18 and 19 November 2013 at 10.00 am.

2. This matter be listed for mention in Court before me on 11 November 2013 at 4.30 pm for the purpose of checking on the readiness of the matter for trial.

3. The parties and the father of the children do all acts and things necessary to enable the children J born … 2006 and F born … 2008 (“the children”) to be assessed by a psychiatrist nominated by the independent children’s lawyer.

4. The assessment is to be of the mental health risk (if any) to the children (or either of them) from being returned to the United States of America in the care of their mother with a resumption of the week about parenting arrangements currently in force in that jurisdiction. Furthermore, how any such risk could be ameliorated or tolerable for the children in the short and immediate term until a court of competent jurisdiction in the United States of America is seized of the matter and the children receive appropriate mental health care. If appropriate, such assessment detail the kind of mental health care recommended for the children (or either of them).

5. The mother and the father be responsible for and pay to the independent children’s lawyer an amount equivalent to one half of the cost of the mental health assessment of the children not covered by any grant of assistance which the independent children’s lawyer receives for the assessment.

6. The independent children’s lawyer make arrangements for the assessment appointments and the mother and the father make their financial contributions to the independent children’s lawyer to be held n trust well prior to the appointment date with the psychiatrist.

7. There be a transcript of the evidence given this day by Ms E, family consultant, and when transcribed a copy be sent to the parties to the proceeding.

8. The independent children’s lawyer be responsible for providing to the psychiatrist who conducts the assessment of the children a copy of all documents that should be read by the psychiatrist or to which he/she should have access but, in any event, to include the report of Ms E dated 30 July 2013 and the transcript of evidence which she gave to the Court.

IT IS ORDERED BY CONSENT THAT:

9. The mother do all such acts and things and sign all documents as may be required, at the father’s expense, to support an application made by the father for visas enabling the children to travel to the United States of America from Australia, including but not limited to:-

a) signing and returning any required letter of consent to be prepared by the father’s solicitors Kennedy Partners and be provided to the mother for execution not less than 7 days before it is required;

b) making the children available to attend any required interview (if any) with the father, at Melbourne and, if necessary, attend with the children.

IT IS FURTHER ORDERED THAT:

10. The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

AND IT IS NOTED that the father’s lawyer informs the Court that the father will travel to Australia in advance of the final hearing fixture and personally apply for visas for the children from the United States Embassy in Melbourne, Australia. The father will require a letter of consent addressed to the proper officer of the embassy evidencing the mother’s consent to the removal of the children from Australia in the event that they are ordered to return.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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