Allum & Ervin

[2021] FamCA 244

FAMILY COURT OF AUSTRALIA

Allum & Ervin [2021] FamCA 244

File number(s):

PAC 643 of 2016

Judgment of:

HANNAM J

Date of judgment:

30 April 2021

Catchwords:

FAMILY LAW – EVIDENCE – Whether a family therapist engaged with the family prepare a report in accordance with terms of reference proposed by the Independent Children’s Lawyer appointed in the proceedings (“the ICL”) – Where father supported ICL’s position but mother opposed it – Where in the circumstances it is appropriate that family therapist report on matters relating to the family’s therapeutic engagement as sought by ICL.

Legislation:

Evidence Act 1999 (Cth) ss 55, 56

Family Law Act 1975 (Cth) s 69ZN

Cases cited:

IMM v The Queen [2016] HCA 14; 257 CLR 300

Britt & Britt [2017] FamCAFC 27; [2017] FLC 93-764; (2017) 56 Fam LR 52

Number of paragraphs:

45

Date of hearing:

16 March 2021

Place:

Parramatta

Solicitor for the Applicant:

Applicant in person

Solicitor for the Respondent:

Broun Abrahams Burreket

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

PAC 643 of 2016

BETWEEN:

MR ALLUM
Applicant

AND:

MS ERVIN

Respondent

LEGAL AID NSW

Independent Children’s Lawyer

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	16 MARCH 2021

THE COURT ORDERS THAT:

1.That Ms B prepare a report (“the report”) in relation to her engagement with the parties and Z pursuant Court orders of 6 October 2020 with such report to provide:

(a)An outline of the commencement date of such therapy and a chronology of occasions upon which appointments have occurred;

(b)An outline of the manner in which therapy has been conducted, and the manner in which it is proposed therapy will continue to be conducted;

(c)An outline of the progress of such therapy (noting orders 14.1 and 14.2 of the orders of 6 October 2020) in relation to:

(i)Improving the Mother and Father’s capacity to co-parent including on issues such as shared parental responsibility, communication, managing conflict and promoting and facilitating a positive relationship between Z and the other parent; and

(ii)Supporting Z in re-integrating into her relationship with the Father and his household.

2.That unless otherwise agreed between the parties, the costs of preparation of Ms B Report and any costs incurred in Ms B attending for the purposes of cross examination at hearing shall be met in the first instance by Legal Aid NSW noting that Ms B has provided a fee estimate of $300-$500 for report preparation.

3.In preparing the report, Ms B is requested not to include such report the contents of any settlement negotiations that have transpired between the parties in the course of her engagement with them.

4.For the purposes of preparing such a report, Ms B shall not be provided any further or additional material by any party unless by consent or pursuant to court order.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allum & Ervin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

1. For the purposes of preparing parenting proceedings for final hearing, the Independent Children’s Lawyer (“the ICL”) sought orders that a report be prepared by a family therapist (“the family therapist”) with whom the parties and their only child, a little girl aged seven (“the child”) had been engaged for some time.

2. The father supported the ICL’s application but it was opposed by the mother.

3. On 16 March 2021 I made the orders sought by the ICL and indicated that I would publish my Reasons at a later date. These are those Reasons.

   BRIEF BACKGROUND

4. The parties who are both aged 43 commenced a relationship in 2012 and separated on a final basis in 2014 shortly after the child was born.

5. Despite several attempts at mediation, the parties could not agree on future parenting arrangements for the child and have been involved in a highly acrimonious dispute as to these matters since proceedings were initiated by the father in the Federal Circuit Court in 2016.

6. Interim orders were initially made in that Court in June 2016 providing that the parties equally share parental responsibility for the child and that the child live with the mother and spend time with the father for four hours each weekend. Orders were later made with the parties’ consent in early 2018 increasing the father’s time to overnight time each alternate weekend as well as special occasions.

7. The child’s time with the father pursuant to court orders came to a halt in December 2018 when the mother alleged that the child disclosed being sexually abused by the father. The proceedings were subsequently transferred to this Court and placed into the Magellan Program.[1]

   [1] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

8. Between late 2018 and early 2019 the allegations of sexual abuse against the father were investigated by the Joint Child Protection Response Program (“JCPRP”)[2] and were later found to be unsubstantiated. Apart from issues with the nature of the child’s disclosures, some concerns were raised by the JCPRP about the child’s exposure to a “considerable degree of parental alienation” by the mother, which they considered likely to negatively affect the child’s perception of, and relationship with, her father. At the time, the mother engaged the child in trauma counselling.

   [2] The Joint Child Protection Response Program is made up of officers from Community Services and police and investigate complaints of sexual abuse and serious physical abuse of children.

9. It has been the mother’s case that on various occasions the child was unsettled and emotionally distressed about the father’s alleged abuse and that these behaviours only subsided as a result of the child having no contact with the father.

10. In May 2019, the parties agreed on interim orders that the child spend supervised time with the father at a contact centre for two hours per fortnight and that she also have some electronic communication with him.

11. As the mother remained unshaken in her fear about the child’s safety in the father’s care and maintained that the child was exhibiting a range of concerning behaviours in both home and school settings, an expert was appointed to the proceedings in June 2019 to assess the family and to report on matters relating to the child’s welfare.

12. In summary, it was the expert’s view in her report released in January 2020 that the mother holds an “overvalued idea” that the child was abused by the father. The expert reported that when observed, the child had a clear desire to spend time with her father. The expert concluded that it would be detrimental to the child’s development to have no time with her father and to “grow up believing he has sexually abused her if this were not the case”. It was the expert’s recommendation that only if findings are made by the Court that such abuse has taken place would a no contact order be an appropriate course of action. Further in her report, the expert noted that the parental relationship remained one of high conflict and that if orders are made for the child to continue to have time with both her parents (as she recommended), these arrangements would be best supported by the family attending family therapy.

13. The arrangement for the child to spend supervised time with the father continued until the father decided to discontinue it due to the restrictions imposed as a result of the COVID-19 pandemic, and his view that the regime of supervised time “was starting to shape [the child]’s perception of [their] relationship in a detrimental way”.

14. After a mediation facilitated by the ICL in August 2020, the parties further agreed on interim orders which were made by the Court with their consent on 6 October 2020 (“the 2020 orders”). These orders provide, in summary, that:

    ·The child live with the mother;

    ·The child spend increasing time with the father graduating to unsupervised time with him each alternate weekend; and

    ·The parties and the child engage in family therapy.

15. In those orders, it was further stipulated (in Order 14) that the purposes of the parties engaging in family therapy included:

    14.1 improving the Mother and Father’s capacity to co-parent including on issues such as shared parental responsibility, communication, managing conflict and promoting and facilitating a positive relationship between [the child] and the other parent; [and]

    14.2 supporting [the child] in re-integrating into her relationship with the Father and his household.

    …

16. In the 2020 orders the parties and the ICL were also restrained from issuing a subpoena or seeking to obtain a report from the appointed family therapist, except with the leave of the Court.

17. Shortly after trial directions were made in late October 2020, the parties and the child commenced attending upon the family therapist on a regular basis. For the next few months the child spent some time with the father but that time was not always in accordance with the 2020 orders and sometimes did not occur at all.

    The ICL’s application

18. On 1 February 2021 in the course of a case management court event before me, and at which time the family’s therapeutic engagement with the family therapist was ongoing, the ICL made an oral application seeking leave to obtain a report from the family therapist.

19. At that court event, the father consented to the ICL’s application, but the mother was opposed to it. It was the mother’s main contention that procuring a report from the family therapist would undermine the confidentiality of the family therapy process. Her solicitor also expressed concerns that the scope of the proposed report could be too broad so as to include negotiations between the parties facilitated by the family therapist, to which, it was submitted, the Court should not be privy.

20. The ICL was then directed to prepare a proposed Minute of Order which would set out the parameters of the report. I also directed the ICL to make enquiries with the single expert appointed in the proceedings in relation to the possibility that an update expert report be prepared as a possible alternative to the proposed report from the family therapist.

21. Following a brief adjournment, the ICL confirmed that while she was unable to make enquiries with the single expert, there were anticipated issues with the costs of an additional expert report which she confirmed could not be met by Legal Aid. The ICL then provided the Court with a Minute of Order (“the ICL’s proposal”) in which the following orders were sought:

    (1)That [the family therapist] prepare a report (“the report”) in relation to her engagement with the parties and [the child] pursuant to Court orders of 6 October 2020 with such report to provide:

    a.An outline of the commencement date of such therapy and a chronology of occasions upon which appointments have occurred;

    b.An outline of the manner in which therapy has been conducted, and the manner in which it is proposed therapy will continue to be conducted;

    c.An outline of the progress of such therapy (noting orders 14.1 and 14.2 of the orders of 6 October 2020) in relation to:

    i.Improving the Mother and Father’s capacity to co-parent including on issues such as shared parental responsibility, communication, managing conflict and promoting and facilitating a positive relationship between [the child] and the other parent; and

    ii.Supporting [the child] in re-integrating into her relationship with the Father and his household.

    (2)That unless otherwise agreed between the parties, the costs of preparation of [the family therapist]’s Report and any costs incurred in [the family therapist] attending for the purposes of cross examination at hearing shall be met in the first instance by Legal Aid NSW noting that [the family therapist] has provided a fee estimate of $300-$500 for report preparation.

    (3)In preparing the report, [the family therapist] is requested not to include in such report the contents of any settlement negotiations that have transpired between the parties in the course of her engagement with them.

    (4)For the purposes of preparing such a report, [the family therapist] shall not be provided any further or additional material by any party unless by consent or pursuant to court order.

22. The mother pressed her objection to the ICL’s proposal. As I was unable to allocate time for hearing on the ICL’s application at that court event and the mother had not been provided with a reasonable opportunity to respond to the ICL’s application, the ICL was later directed to provide further written submissions in relation her proposed orders. Otherwise, trial directions made in October 2020 were confirmed with slight variations to the timetable of filing documents.

23. On 22 February 2021, the ICL’s written submissions to accompany her proposed orders were received in chambers. On the same day, the mother filed her written submissions regarding same.

24. On 4 March 2021, further written submissions sought to be relied upon by the ICL were provided to chambers. In those supplementary submissions, the ICL annexed communication between she and the family therapist in which the family therapist agreed to the preparation of a report relating solely to her therapeutic involvement with the family.

25. By the time the matter came before me on 16 March 2021 for a further case management court event, the family’s engagement with the family therapist had ceased. The mother’s solicitor confirmed that submissions made on the mother’s behalf about the impact on the family’s therapeutic relationship with the family therapist if a report were to be prepared by the family therapist, were no longer relied upon. The ICL pressed her view that evidence from the family therapist would assist the Court in determining the child’s best interests at final hearing, a position supported by the father, but noted that the balance of the submissions made in support of her application were no longer in issue given the mother’s amended position.

26. At the conclusion of that court event, orders were made in the terms sought by the ICL in her Minute of Order dated 1 February 2021.

    THE APPLICATION AND DISCUSSION

27. In both oral and written submissions, the ICL contends that in the absence of evidence from the family therapist there would be a fairly significant gap in the evidence necessary to assist the Court at trial.

28. The mother’s objection to the ICL’s case had been based primarily upon issues with confidentiality and the need to preserve the family’s therapeutic relationship with the family therapist, which both the mother and ICL agreed had fallen away since the family’s engagement with the family therapist had ceased.

29. The only other submission maintained on the mother’s behalf was the issue of relevance, which the mother’s solicitor submitted should be considered against the available evidence from the expert appointed in the proceedings and the ability for the expert to be cross-examined at final hearing. In particular, the ICL submitted that there would be an absence of objective evidence relating to communication between the parties, their ability to manage, and their insight in relation to the child’s behaviour, without the family therapist’s report. The mother’s solicitor contended that such evidence need not to necessarily flow from the family therapist, but could rather be obtained through questions asked of the expert at trial.

30. The father maintained his consent to the ICL’s proposal and added in oral submissions that evidence from the family therapist would be highly relevant given the child’s time with him is a significant matter in dispute between the parties, and the family therapist was engaged with the family during periods where the child was spending time with him.

31. Section 55 of the Evidence Act 1995 (Cth) (“the Evidence Act”) defines relevant evidence as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” Section 56(1) of the Evidence Act provides that “Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.”

32. The High Court in IMM v The Queen[3] held at [40] that the effect of ss 55 and 56 combined is that “evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law”.

    [3] [2016] HCA 14; 257 CLR 300.

33. The Full Court in Britt & Britt[4] expressed similar sentiments, stating at [31]:

    Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value.

    [4] [2017] FamCAFC 27; [2017] FLC 93-764; (2017) 56 Fam LR 52.

34. The Full Court went on to say at [34] – [35]:

    In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.

    Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.

35. The purposes for which the family engaged with family therapy are clearly set out in the 2020 orders and are in my view in keeping with recommendations made by the expert in her 2019 report. In summary, it was the expert’s recommendation that the family commence family therapy to assist them in their co-parenting relationship, in adjusting to an arrangement whereby the child spends increasing time with the father and in generally improving the parents’ capacity to meet the child’s needs.

36. There is significant dispute between the parties as to the extent to which the child suffers from behavioural and emotional difficulties and whether any such difficulties are related to her time with the father. In these circumstances, the Court would in my view be assisted by evidence from the family therapist as to the child’s progress under family therapy and observations made by the family therapist relating to the parents’ ability to manage the child’s needs.

37. I also accept the ICL’s submission that given family therapy commenced in the context of recommendations made about live with and spend time with arrangements, the Court would be assisted by evidence which goes directly to the success of implementing those recommendations and in particular, the re-integration of the child into her relationship with her father and his household. Evidence as to these matters would have some probative value in determining at final hearing what parenting arrangement would be in the child’s best interests.

38. A consideration of the competing final parenting proposals sought by the parties would likely require an assessment of each parent’s capacity to support the child’s relationship with the other, and the parties’ capacity to communicate and manage any conflict between them. Such evidence from the family therapist would be relevant to the extent that it may put into context opinions expressed by the expert about the parties and the child and the dynamic between them, noting that the expert’s assessment took place some time ago in late 2019.

1. In making orders as sought by the ICL, it is also significant to note that the proceedings under consideration are child-related proceedings conducted under Division 12A of Part VII of the Family Law Act 1975 (Cth). Division 12A contains principles for conducting child-related proceedings,[5] and Principle 5 provides that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

   [5] See s 69ZN of the Family Law Act 1975 (Cth).

2. Therefore, while I had raised with the parties the possibility of an updated report being obtained from the expert to address these matters relating to the family, the cost and the likely delay for the preparation of such a report favour the alternative avenue of evidence provided by the family therapist. In particular, there is a significant difference between the rough estimate of the expert’s fees for an additional report and those payable to the family therapist. The family therapist indicated in correspondence to the ICL that her estimated fees total around $300 - $500, which the ICL confirmed are able to be met by Legal Aid.

3. Further, due to historical delays in preparing the matter for trial, the proceedings have been expedited and it would therefore be in the child’s best interests for the family therapist to prepare her brief report where there are uncertainties about when the expert is able to further assess the family. The family therapist in her correspondence to the ICL not only indicated her flexibility to prepare a report “at any time” but also suggested that it would take her no longer than two hours to do so.

4. I also accept the ICL’s submission that a relevant consideration in preferring the family therapist’s evidence over an additional expert report is the child’s interactions with various third parties to date. In the course of the proceedings the child has been engaged with various professionals such as the expert, the family therapist, a family consultant, staff at the contact centre, Departmental staff and JIRT investigators, other psychologists and health professionals treating the child according to the mother’s evidence, and the ICL herself.

5. In circumstances where it is contended by both parties that the child has some complex needs arising from certain behavioural and emotional difficulties, considering the child’s needs and the impact that the conduct of the proceedings may have on the child in this regard (as Principle 1 requires)[6], would render obtaining a report from the family therapist the more appropriate pathway. Such a process would merely require preparing a report based on the family’s interactions current to the date of the report, rather than involving the child in additional interviews or observations.

   [6] Ibid s 69ZN(3).

   Other matters

6. One other concern previously raised by the mother in oral submissions related to the scope of the report to be prepared by the family therapist. She held concerns that the family therapist had facilitated negotiations between the parties in a quasi-dispute resolution manner and may have also discussed matters outside what would typically be considered family therapy. However, these concerns, as the appropriately ICL identifies, are satisfactorily addressed by the terms of reference for the report contained in the ICL’s proposal (Order 1) and the express request in Order 3 for the family therapist to exclude any settlement negotiations between the parties that may have taken place.

7. Having regard to the foregoing matters, I am satisfied that the issue of family therapy and the success or otherwise of it, is relevant to the issues for determination in these proceedings including the nature of the relationship between the child and each of her parents. For these reasons, and the reality that an additional expert report is neither cost nor time efficient, I consider the preparation of a report from the family therapist as sought by the ICL appropriate and in the child’s best interests.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       30 April 2021