Cary & Cary (No 2) - [2021] FedCFamC1F 237

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cary & Cary (No 2) [2021] FedCFamC1F 237

File number(s): PAC 864 of 2021

Judgment of: HANNAM J

Date of judgment: 30 November 2021

Catchwords: FAMILY LAW – COUNSELLING – Confidentiality – Where the parties and ICL agree that there is a need for a child to attend therapy – Whether the therapy should be reportable – Where the child had not spent time with the mother for almost 12 months – Where orders made for the child to return to live with the mother – Where ICL and father seek that the therapy be reportable – Where the mother contends therapy will be undermined if reportable – Where it is inappropriate for therapy to be an opportunity to gather evidence – Where mother’s proposal for therapy is child-focused – Orders made as sought by the mother.

Legislation: Part VII Div 12A Family Law Act 1975 (Cth)

Cases cited: Kyrkos & Malkin [2020] FamCA 649

Division: Division 1 First Instance

Number of paragraphs: 39

Date of last submission/s: 1 November 2021

Date of hearing: 14 October 2021

Place: Parramatta

Solicitor for the Applicant: Self-represented

Solicitor for the Respondent: Barkus Doolan

Solicitor for the Independent Children's Lawyer: Ark Law Lawyers
ORDERS

PAC 864 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CARY

Applicant

AND:
MS CARY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

30 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The mother and father shall forthwith do all acts and things and sign all documents as may be required to facilitate the engagement of the child X born 2009 (“the child”) in family therapy with the mother, to be conducted by Ms E of Organisation F (“the family therapist”).
2.That forthwith upon the making of these Orders, the mother shall make contact with Organisation F for the purposes of securing the first available appointment with the family therapist as part of the family therapy process.
3.The mother shall attend upon her treating general practitioner to obtain a referral and Medicare subsidised GP Health Care Plan (if available) referring the child to family therapy with the family therapist.
4.Each of the parents and the child shall attend family therapy on dates and at times as requested or recommended by the family therapist.
5.The mother shall take all steps necessary to facilitate the child’s attendance at family therapy as requested or recommended by the family therapist.
6.All out of pocket costs payable (after Medicare and/or private health insurance rebates) to the family therapist for family therapy shall be paid by the mother and father in equal shares.
7.With the exception of information relating to the attendance of the parents, or either of them, and the child, at appointments with the family therapist and any recommendation by the family therapist that therapy shall continue or not, the family therapy (including all individual sessions involving only one party and the family therapist) shall be confidential and…

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 Cary & Cary (No 2)

Details

AGLC: Cary & Cary (No 2) [2021] FedCFamC1F 237
Case: [2021] FedCFamC1F 237
Decision Date

CaseChat Overview and Summary

The case of Cary & Cary (No 2) involved a dispute between the mother and father regarding the future parenting arrangements for their three children following the breakdown of their relationship. The central issue before the court was whether family therapy for the child, aimed at repairing the disrupted relationship with her mother, should be reportable or confidential. The father and the Independent Children's Lawyer (ICL) argued for the therapy to be reportable to provide evidence for the proceedings, while the mother contended that the therapy should remain confidential to ensure the child could speak freely and without concern.

The court found that the primary purpose of the therapy was to assist the child in repairing her relationship with her mother, rather than serving as an opportunity to gather evidence for the proceedings. It was held that making the therapy reportable would undermine the therapeutic relationship and potentially expose the child to the risk of being drawn into the parental dispute. The court emphasized the importance of confidentiality in an effective therapeutic relationship and aligned with the principles of child-related proceedings under Division 12A of the Family Law Act 1975, which prioritize the needs and wellbeing of the child.

Consequently, the court made orders as sought by the mother, ensuring that the family therapy would be confidential and non-reportable, except for information relating to attendance at appointments and any recommendation by the therapist that therapy should continue or not. The court also restrained the parties and the ICL from issuing subpoenas, requesting written reports, or introducing anything discussed in the therapy as evidence in the proceedings. The mother was granted leave to provide relevant court documents to the therapist as needed.

In summary, the court ruled in favor of the mother's proposal, emphasizing the importance of maintaining a confidential therapeutic environment to best support the child's relationship with her mother and her overall wellbeing.

Orders