Carr & Carr
[2022] FedCFamC1F 620
Federal Circuit and Family Court of Australia
(DIVISION 1)
Carr & Carr [2022] FedCFamC1F 620
File number(s): SYC 1806 of 2011 Judgment of: CHRISTIE J Date of judgment: 23 August 2022 Catchwords: FAMILY LAW – SUBPOENA – where the wife seeks leave to issue subpoena to the child’s treating physicians – where the child has not given their consent and is of an appropriate age to voice their opinion Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 23 August 2022 Place: Sydney Solicitor for the Applicant: Ms Morozov, Barkus Doolan Winning Family Lawyers Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ms Tin, Legal Aid NSW ORDERS
SYC 1806 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARR
Applicant
AND: MR CARR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
23 AUGUST 2022
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file a subpoena for production addressed to B School.
2.The time for the mother to file an application in respect of the appointment of a single expert psychiatrist be extended to 4.00 pm on 9 September 2022. The time to file and serve any response be extended to 4.00 pm on 16 September 2022.
3.The independent children’s lawyer be given liberty to relist the matter in the event that the child has been informed about the subpoena and the fact that her records may be made available to the Court and her parents, and the child does not object to that course.
4.The Child Court Expert be provided a copy of exhibit A and asked to consider its content before making a determination as to whether the child attends the family report interview scheduled for 4 October 2022.
5.The parties are to complete and provide to the independent children’s lawyer an independent children’s lawyer questionnaire.
6.The oral application of the independent children’s lawyer for leave to issue subpoena to Organisation C is dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carr & Carr has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These proceedings come before me as a result of an application for consent orders concerning subpoena. A request was made on behalf of the applicant mother Ms Carr (“the mother”) for the Court to issue subpoena addressed to the following:
(a)B School;
(b)Dr D and
(c)Dr E
For records concerning Y born in 2008 (“the child” or “Y”)
I am told that Dr D is the child’s treating general practitioner and has a long history in providing medical care and referrals. Dr E has been identified as a person who, at least until the middle of this year, acted as the child’s treating psychologist.
There are two children the subject of these proceedings: X born in 2006 and Y born in 2008 (“the children”).
Final orders were made as between the mother and Mr Carr (“the father”) on 21 June 2017. Following the making of those final orders, there was an incident on the weekend of 23 November 2019 when the father and his partner took ecstasy while the children were in their care. The father and his partner both had a reaction to the drug and became unconscious and were admitted to hospital. As a consequence, the mother withheld the children from the father after this incident. The father for his part says that is the only occasion on which he has taken illicit drugs and has not taken illicit drugs since.
Not unsurprisingly, the mother made an application to re-open the final orders on 18 December 2019. The father filed a Response on 14 April 2020. The father seeks orders that the children live with their mother, seeks equal shared parental responsibility. The father was seeking to spend time with the children. The matter came before a Senior Judicial Registrar on 15 July 2021. The Senior Judicial Registrar made orders which provided that the father undertake random urinalysis and hair follicle testing every three months, that the child Y spend supervised time with the father for six occasions every alternate Sunday for four hours at a time and a further six occasions each alternate Sunday unsupervised, if the father complies with the testing regime and doesn’t return any positive test results. Following those six occasions, there was to be unsupervised time each alternate Sunday for eight hours at a time. X was to spend time with the father when Y did, in accordance with X’s wishes. The father has a child with his new partner Ms F and both Ms F and his partner Ms G were permitted to accompany him on visits if they filed an undertaking that Ms G would abstain from consuming illicit drugs or substances. The father was himself restrained from consuming illicit drugs or substances.
When this matter came before the Court on 3 August 2022 I was informed that the children were in regular telephone communication with the father, which they initiate, and have not spend time with the father. The father says this is because the mother will not permit time. The mother says she is complying with the Court orders. It was in that context that, the children being 14 and 16 years of age, the matter come before me on 3 August 2022. On that occasion I heard submissions about expert evidence to allow this matter to either resolve or be determined on a final basis. I indicated that I was minded to order that there be a family report. The making of that order was resisted on behalf of the applicant mother on the basis that it was more suitable in the circumstances of this family for there to be an expert psychiatric report. The submission was made that the intervention by the family report writer may be experienced by the child Y as traumatic. I indicated on that occasion that while those submissions may appropriately be made in a case where there is evidence, there was not, as at 3 August 2022, sufficient evidence before me to allow me to conclude that a meeting with a child court expert would be experienced by that child as traumatic. I also directed that, should the mother wish to appoint a single expert psychiatrist, any application be filed and served before 4.00 pm on 2 September 2022 with a Response to be filed by 9 September 2022. That timetable was set out to allow the mother to make good on her submission, if appropriate, that this was a case in which there should be a single expert psychiatrist, rather than a family consultant.
There is some urgency in this matter. As indicated, final orders were made in 2017 and proceedings reopened in December 2019. It is now August of 2022 and during that period of time, the children have had no time with one of their parents. It is important that, so far as practical, matters move through the Court, reflecting the urgency of the situation from the children’s perspective. In those circumstances, I was minded to allocate the family report interviews which are to take place on 4 October 2022 and orders were made in that regard.
I did not know at the time the matter came before the Court that there had been a report. Before me today is a report from the Organisation C. The report arises out of an assessment of the child Y. On the cover sheet of that document which became exhibit A in the proceedings, it says “[Y] identifies as gender fluid, preferring to be identified by [a preferred name], with they/them pronouns. For the purpose of this report, [Y] will be referred to by her biological gender and legal name.
An assessment was conducted. The most significant and relevant aspect for the purpose of this application is contained under the heading “Functional Impact of [Y’s] Autism Profile”. I quote from the report:
Overall, [Y’s] autism negatively impacts her functioning across the following areas:
Communication skills: understanding and using verbal and nonverbal language (social pragmatic language skills).
It is well-documented that an individuals’ non-verbal communication skills significantly increase their chances of failure or success in personal and professional social encounters. According to studies conducted on human conversation, only seven percent of concepts are expressed in the form of spoken words. Most of the information is transferred through complex combination of appearance, posture, limb movement, sight and facial expressions. It is also well documented that individuals with ASD experience mild to severe difficulties in their ability to both express and understand nonverbal communicative behaviours used for social interaction. These range, for example, from poorly integrated verbal and nonverbal communication; to abnormalities in eye contact and body language or deficits in understanding and use of gestures; to a total lack of facial expressions and nonverbal communication.
[Y] experiences a MODERATE – SEVERE level of difficulty within this domain. These difficulties have a negative functional impact on her ability to communicate her ideas, thoughts, needs and concerns to others in family, school and social settings without experiencing significant overwhelm following such interactions. These difficulties also have a negative functional impact on her ability to understand and correctly interpret both the content and context of ideas, throughs, needs and concerns expressed by others. This can impact [Y’s] ability to regulate during these contexts. The outcome of [Y’s] deficits in this domain significantly reduce her ability to build and maintain friendships, and participate effectively and successfully in community activities.
References omitted.
The part of that report which causes the most concern as regards any potential interviews is the possibility that communicating her ideas, thoughts and needs in the setting with a family consultant (or indeed with a psychiatrist) may overwhelm the child. This is a piece of evidence which suggests that any interactions should be approached with caution. That does not mean though, in my view, that interviews ought not take place. I am concerned that the child’s vulnerability cannot and should not be used as a reason to deny the child an opportunity to have a voice in the proceedings. If the professionals are appropriately across the vulnerability, then it is my view that they have sufficient professional expertise to determine whether or not the intervention is appropriate to the child’s circumstances. For that reason I propose to make orders which permit the Court to issue the subpoena to B School. In respect of the subpoenas to Dr D and Dr E, I intend to ask that the independent children’s lawyer consult to determine whether the child has been informed about the existence of the subpoena and the fact that her records may become available to the Court. If having undertaken that consultation, the child does not have any difficulty with her records being made available to the Court and to both of her parents, then I will issue the subpoena. I take that view for two reasons. One, because I was informed that Dr E is no longer the treating psychologist for the child and hence I no longer need to be concerned necessarily about protection of the therapeutic relationship and two, because a child of mature years has in effect consented. I continue to be concerned about the following issues from the perspective of Y:
(a)Confidentiality.
(b)Trust in adults; and
(c)The capacity for the child to voice and make known any views (with knowledge of who will hear those views).
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 23 August 2022
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