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 non-reportable and all matters discussed in family therapy shall be inadmissible as evidence in these proceedings and any other court proceedings.
8.For the purposes of Order (7) above, each of the parents and the Independent Children’s Lawyer are restrained from:
(a)Issuing any subpoena for the family therapist to give evidence, or for the production of any of the family therapist’s records, in these proceedings;
(b)Requesting any written report from the family therapist for the purposes of use as evidence in these proceedings;
(c)Introducing or attempting to introduce into evidence in these proceedings anything that is discussed in the course of family therapy with the family therapist.
9.The mother has leave to provide to the family therapist copies of all relevant court documents from these proceedings, including Orders, as the family therapist requests or requires.
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 Cary & Cary has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION AND BACKGROUND
The parties (“the mother” and “the father”) are engaged in a dispute concerning the future parenting arrangements for their three children (“the children”) following the breakdown of their 20 year relationship.
Initially following separation in November 2020 the children, a daughter then aged 11 (“the child”), a son then aged 10 and a daughter then aged six, remained living with the mother.
A few days after physical separation, on 12 November 2020, the father collected the child from the former family home and took her to live with him in the home of the paternal grandmother. The child had remained living with the father until 22 October 2021 when orders were made (“the October 2021 Orders”) and Reasons delivered (“the October 2021 Judgment”) in relation to the children’s interim parenting arrangements, including an order that all the children live with the mother.
Prior to the October 2021 orders the children had been living in a parenting arrangement pursuant to orders made by a Senior Registrar on 15 June 2021. Pursuant to those orders the child lived with the father and was to spend time with the mother in accordance with the child’s wishes. The child had not however spent any such time with the mother between 12 November 2020 and 22 October 2021. The younger two children during this period lived with the mother. They initially spent substantial and significant time with the father, but since March 2021 when the first interim parenting orders were made, their time with the father has been supervised and reduced to a couple of hours each alternate weekend.
In other words, the October 2021 orders brought about a dramatic change in the living arrangements for the child as she moved to live with her mother who she had not seen and with whom she had only limited communication for almost 12 months.
REVIEW/ INTERIM HEARING
As can be seen from the 2021 Judgment, it was common ground at the review/interim hearing that although the child had shared a close and loving relationship with each of her parents, the child’s relationship with her mother was significantly disrupted from around the time the family had experienced difficulties at the time of separation. It was also not in dispute that from around the time of separation the child was strongly aligned with the father and rejecting the mother.
The parties also agreed when seen by the family consultant in May 2021 in the course of the Child Responsive Program that there had been no opportunity for the child and the mother to address the disruption in their relationship since this time.
At the interim hearing, the father and the Independent Children’s Lawyer (“ICL”) took the position that it was not in the child’s interests for time between the child and the mother to recommence and that it would be a particularly risky move for this child to be required to move to live with the mother as the mother proposed. Both the father and the ICL proposed that the disruption in the relationship between the mother and the child be addressed through therapy prior to a resumption in the child’s time with the mother being considered.
For the reasons outlined in the October 2021 Judgment, I was satisfied that it was in the child’s best interests to return to live with the mother and spend supervised time with the father following the same regime of time as the other two children.
Although in my October 2021 Judgment I attached some weight to the disruption in the child’s relationship with her mother, for the reasons given I did not consider it essential for therapy to be undertaken prior to the change in the child’s living arrangements. However, the disruption to the relationship between the child and mother did loom large in the interim proceedings and as noted, it was common ground between the parties and the ICL that the child would benefit from receiving therapy to repair the relationship between the mother and the child.
As I also observed in the October 2021 Judgment, considerable time was devoted at the review/interim hearing to the question of this therapy including in particular identifying an appropriately qualified therapist. Ultimately, at the interim hearing a therapist was identified and is able to begin seeing the mother and the child in December 2021 and it appeared that agreement had been reached between the parties and the ICL in relation to this matter. When I directed that draft proposed orders to which both parties and the ICL consented be provided to the court, it became apparent that there was a particular area of disagreement relating to whether the therapy should be reportable for the purposes of these proceedings or not.
THE RESPECTIVE APPLICATIONS
It was agreed that each of the parties would forward to chambers their respective proposed orders in relation to the therapy, together with submissions in relation to each parties’ proposal. Initially, the question of an appropriate order with respect to therapy was to be included in the Reasons for Judgment concerning the interim arrangements but as explained in the October 2021 Judgment, I considered that the parenting arrangement had such urgency that parenting orders would not be delayed to allow for submissions in relation to the question of therapy to be received.
Thus, the only issue to be determined relates to the parties’ respective proposals concerning therapy for the child.
As can be seen from the foregoing background, there is no disagreement between the parties in relation to the appropriate therapist and a first appointment with that therapist has been arranged to occur shortly.
It is the mother’s proposal that, with the exception of information relating to the attendance of the parents or either of them with the child at appointments with the therapist, and any recommendation by the therapist that therapy continue or not, the family therapy shall be confidential and non-reportable and that all matters discussed in family therapy shall be inadmissible as evidence in these proceedings and any other court proceedings.
It is the father’s proposal that the therapy conducted between the therapist, the child and the parents shall be confidential with the following exceptions. The father proposes that the ICL be at liberty to have discussions with the family therapist from time to time in relation to the parents’ and child’s engagement with the therapist and that at the conclusion of the family therapy process (envisaged to be within three – six months) the family therapist is to provide a report addressing:
·Whether the parties have engaged with therapy
·Whether the parties have attended as required
·Whether any further treatment/therapy would be of assistance
·Any other recommendations pertaining to the welfare of the child as to the welfare of the child (sic)
In his Minute of Proposed Order the father also includes an order in the following terms:
The purpose of the family therapy is to assist in determining the cause of the breakdown of the relationship between the mother and [the child], assisting in repairing such relationship and/or providing recommendations as to time between the mother and the child.
The ICL proposes the last mentioned orders now adopted by the father in relation to the purpose of the therapy, confidentially and the preparation of a report.
In summary, it is the proposal of the father and the ICL that the purpose of the family therapy includes determining the cause of the breakdown of the relationship between the mother and the child, and this purpose should be identified in the orders for therapy. The father and ICL also propose that the ICL be at liberty to discuss the progress of the therapy with the therapist and that the therapist provide a report at the conclusion of the therapy including relating to any other recommendations that the therapist may have “pertaining to the welfare of the child”.
In support of her proposed orders, the tenor of the ICL’s submissions is that evidence which may be gleaned from the therapy which the ICL describes as “independent evidence” is uniquely available from the therapist alone. The ICL contends that as the therapy sessions are the sole source of such evidence, orders need to be made so that this evidence may made available to any expert engaged for the purposes of the proceedings. The ICL also contends that family therapy is “commonly reportable” and that in the ICL’s experience, the ICL is “commonly allowed to speak to the therapist” and such therapists “commonly provide recommendations regarding the time between parents and children” which are in the ICL’s experience “treated the same way as any recommendation by a family report writer or an expert”. For these reasons, the ICL seeks that orders should be made as she and the father propose. The ICL contends that her proposed orders if made would not encroach upon the therapeutic relationship between the therapist, the mother and the child.
The father’s contentions in relation to the orders proposed by him (which are in almost identical terms to the ICL’s proposal) are along similar lines as the contentions of the ICL. In submissions made on his behalf the father focuses on the question of the cause of the breakdown in the relationship between the mother and the child. He submits that while it was common ground at the review/interim hearing that the relationship between the child and the mother was fractured, there is no “independent evidence” as to the reason for this disruption in the relationship. It is his position that reportable family therapy is “essential” to identify the cause for this disruption and to assist the Court in assessing “what/who is contributing the damage in the relationship between [the child] and her mother”. It is contended on behalf of the father that if family therapy is non-reportable the Court will be left with the extremely difficult task described as “a dangerous risk to draw inferences from each parties (sic) behaviour” in determining the cause of the disruption in the relationship between the mother and the child.
In other words, both the ICL and the father consider the aim of the therapy is to provide a forensic opportunity to obtain evidence for the purposes of resolving the dispute between the parties.
The mother contends that the primary purpose or goal of the therapy is to foster and improve the relationship between she and the child which has been disrupted and that the goal is not and should not be an opportunity for creating or gathering evidence to be used in contested litigation. It is contended on behalf of the mother that if this latter approach were to be taken then there is a real risk that those participating in the therapy may not speak openly or freely with the effect that the therapy will be undermined and doomed to fail from its commencement.
It is submitted on behalf of the mother that it is not the role of a therapist to be required to provide to the Court findings, recommendations or views about matters discussed in family therapy including the cause and/or reasons for the child’s past or present views about the mother and that as the family therapist is not an expert witness she should not be required to make recommendations to the Court about current and/or future parenting arrangements for the child.
It is also submitted on behalf of the mother that where the family therapist is not an expert witness in the proceedings she should not be charged with the task of being required to prepare a written report at unknown costs to the parties, especially where a separate Family Report has already been ordered in the proceedings.
Further, in these proceedings, as is clear from the October 2021 judgment, it is the mother’s case that the father has involved the child in the parental dispute and conflict. In these circumstances the mother submits that reportable family therapy may provide the father an opportunity to encourage or influence the child in expressing herself in the context of family therapy, those matters which he perceives may advance his case. It is submitted that if family therapy is used as an opportunity to obtain evidence for the purposes of the proceedings, the child should be protected from this risk identified by the mother.
Overall, the mother contends that the primary purpose of the therapy is to assist the child in repairing her relationship with the mother and it is imperative for the therapy to be non-reportable to ensure that therapeutic intervention will support, encourage and promote the child having the best opportunity of having a meaningful and healthy relationship with both parents.
DISCUSSION
In my view, the positions advanced by both the ICL and the father contain confusing propositions about the role of a therapist. As was observed by McClelland DCJ in Kyrkos & Malkin [2020] FamCA 649 (“Kyrkos”) at [26]:
The importance of confidentiality in an effective therapeutic relationship has been judicially recognised.
In Kyrkos his Honour referred to the observations of a judge of the Supreme Court of New Jersey in Kinsella v Kinsella 696 A.2d 556, (NJ, 1997) at [584] when the following was stated:
The psychologist-patient privilege further serves to protect an individual's privacy interest in communications that will frequently be even more personal, potentially embarrassing, and more often readily misconstrued than those between attorney and client. Made public and taken out of context, the disclosure of notes from therapy sessions could have devastating personal consequences for the patient and his or her family, … Especially in the context of matrimonial litigation, the value of the therapist-patient relationship and of the patient's privacy is intertwined with one of the most important concerns of the courts – the safety and well-being of children and families. Therefore, only in the most compelling circumstances should the courts permit the privilege to be pierced.
I adopt the view of McClelland DCJ in Kyrkos that “[w]hile there is no similar public interest privilege in Australia, the insightful observations made in Kinsella (supra), regarding the potential benefit of confidential psychological counselling, in the context of family law proceedings are pertinent to these proceedings”.
In my view, in circumstances where both parents, the ICL and the family consultant recognise that the relationship between the child and mother which was previously considered close and loving has been disrupted, the only goal of the family therapy is to assist in repairing that disruption and restoring the relationship.
Both parties and the ICL also recognise that the identified therapist has the appropriate qualifications to provide the therapy. It is in my view neither necessary nor appropriate for this Court to identify further that for the purposes of providing therapy the therapist must determine the reason for the disruption in the relationship or effectively apportion blame to one parent or another in order to repair and support the relationship currently and in the future.
Further, it is entirely inappropriate in my view for a therapist who is providing assistance to a child whose relationship with her mother has been disrupted to be placed in the position of gathering evidence for the purposes of the parental dispute. In this regard, I do not accept the submission of the ICL that her proposed orders, if made, would not impinge upon the therapeutic relationship.
The risk identified in the mother’s submissions that the parties and in particular the child’s opportunity to speak freely and without concern is in my view alive and real if orders were made as sought by the father and/or the ICL. This is especially the case where it appeared to the family consultant that all of the children and the child in particular may have already been drawn into the parental dispute and where the child has particular concern about her father in a somewhat parentified manner.
I also accept the submission of the mother that an expert, being a family consultant has been appointed to provide a report for the purposes of these proceedings. In preparing that report, expressing an opinion and making recommendations, the family consultant will have an opportunity to assess all relevant family members and make observations of their interactions and will also be provided with all relevant documents. The focus of the family consultant’s report is to express an opinion on those matters relevant to the best interests considerations for the purposes of determining the parental dispute. This is a different role to that of the therapist who is appointed to assist the child in the difficult circumstances she is experiencing as a result of the disruption in her relationship with the mother and the breakdown of her parents’ relationship more generally.
In summary, the focus of the therapy in the circumstances of this case is in my view entirely upon assisting the child and not upon obtaining evidence for the purposes of the proceedings. The entire tenor of the submissions made on behalf of the ICL and the father are directed towards the latter of these purposes which, in my view, is inappropriate in these circumstances, and is in the parents’ rather than the child’s interests.
Finally, I consider it a weighty matter that any order made for the child to receive therapy is an order in child-related proceedings, conducted under Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”). Division 12A contains principles for conducting child-related proceedings.[1] The Court is required to give effect to the principles in this section. In my view, Principle 1, being that the Court is to consider the needs of the child concerned and the impact that the conduct on the proceedings may have on the child in determining the conduct of the proceedings, is particularly relevant. Also relevant is Principle 4, being that the proceedings are conducted as far as possible in a way that will promote cooperative and child-focused parenting by the parties.
[1] See s 69ZN of the Act.
In the circumstances of this application, the greatest need for the child is for the disruption in her previous warm and loving relationship with her mother to be restored in a context where she may speak freely, without concern about the impact of views and experiences upon her parents and in a manner which focuses upon her wellbeing and does not expose her to the risks of being drawn into parental dispute. In my view, the proposal of the mother is more aligned with these principles.
For all of the foregoing reasons, I consider the proposal of the mother with respect to the child’s therapy as proper, child-focused and in the child’s best interests. Accordingly, I make orders as sought by the mother.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 30 November 2021
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