Collery and Collery

[2010] FamCA 426

FAMILY COURT OF AUSTRALIA

COLLERY & COLLERY [2010] FamCA 426

FAMILY LAW – CHILDREN – with whom a child spends time

Family Law Act 1975 (Cth)
Family Law Rules 2004

Knibbs & Knibbs [2009] FamCA 840

APPLICANT: Mr Collery

RESPONDENT: Ms Collery

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 3610 of 2009

DATE DELIVERED: 19 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 19 May 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Emerson Family Law

Orders

AND UPON THE UNDERTAKING THAT without any admission of any past wrong doing

A.     The father will not knowingly approach or come within the vicinity of the mother’s place of residence.

B.     The father will have no communication with any doctor, psychiatrist, therapist or other treating health professional for either of the children save in accordance with the provisions of these orders.

IT IS ORDERED THAT

1. The matter be listed for mention before Justice Murphy at 10.00am on Tuesday 2 November 2010 at the Brisbane Registry of the Family Court of Australia.

2. The Application in a Case filed 4 March 2010 be otherwise dismissed.

3. The Application in a Case filed on 17 May 2010 be otherwise dismissed.

4. Save when objection is taken by the persons, institution or entity producing same, leave is granted to the Independent Children’s Lawyer only to inspect and copy such documents as might be considered appropriate by him produced in answer to any subpoenae, and no other party to inspect or copy documents without an order of the Court.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. All previous parenting orders be discharged.

2. The children T born … November 1994 and Z born … April 2000 live with the mother.

3. A transcript of today’s proceedings be prepared and provided to each of the parties free of charge.

4. Pursuant to s 121(9)(g) of the Act the Independent Children’s Lawyer be authorised to publish to each and all of the doctors, psychiatrists, counsellors or therapists identified by the mother in the course of proceedings before the court on 19 May 2010 as having provided treatment or therapy to the children, an account of these proceedings, namely:

   a)The report of Ms D filed 7 September 2009;

   b)The report of Dr M dated 5 May 2010;

   c)The report of Mr C filed 10 February 2010;

   d)The transcript of today’s proceedings earlier ordered.

5. The father shall provide to the Independent Children’s Lawyer the names of each and all psychiatrists, psychologists, therapists or other such health professional currently or in the past providing treatment to him with respect to any psychological or emotional issues suffered by him.

6. In the absence of the father providing such authority as might be required to give effect to the preceding paragraph of these orders, or in the event that the father provides any written instruction or authority to any such health professional contrary to the preceding order, this order shall of itself be sufficient authority for any such person to provide any such information to the Independent Children’s Lawyer in these proceedings and shall, of itself, operate as a request for same.

7. Each of the mother and father shall, each or both as the case may be, do all such things as may be required to authorise and request any doctor (including any psychiatrist), therapist, counsellor or other health professional who has been consulted by either or both of the children to:

   a)provide to the Independent Children’s Lawyer all such information in respect of the children as he or his representatives might reasonably require;

   b)provide to the Independent Children’s Lawyer, and through him to Dr M, Mr C and Ms D, a report outlining:

   i.all treatment provided to either or both of the children;

   ii.the current treatment, medication or other support provided to each of the children;

   iii.the future proposed treatment regime in respect of either or both of the children;

   iv.any recommendations or considerations considered to be appropriate in the children’s best interests for how, and in what manner, any relationship between either or both of the children and the father might be initiated and facilitated;

   v.such further matters as each of the health professionals might consider relevant to the best interest of the children.

   c)consult with the father, at the father’s expense, on such occasions (independent of the children) as the father in consultation with each or all of those health professionals, might agree and deem appropriate.

8. In the absence of either or both parties providing any written authority that might be required to give effect to the preceding paragraph of this order, or in the event that either party provides any written instruction or authority to any such doctor, therapist, or other health professional contrary to the preceding paragraph, this order shall, of itself, be sufficient authority for any such person to provide any such information and shall, of itself, operate as a request for same.

9. No provision of the preceding paragraphs of these orders shall be taken to require any treating doctor, psychiatrist or other health professional to provide to the father, the Independent Children’s Lawyer or, ultimately, the court any information considered by that health professional to be harmful to the children in any way, including to their emotional health, or to the therapeutic relationship that exists or existed between that health professional and the child or children.

10. In the event that any such decision as contemplated by the previous paragraph of these orders is made by any such doctor, psychiatrist or other health professional, the parties shall direct and request, and in the absence of any such authority or request this order shall, of itself, be such authority and request for, the health professional to provide written reasons for not sharing the information and the nature of the harm identified in failing or refusing to do so.

11. Each of the mother and the father shall, each or both as the case may be, authorise and request any treating doctor, psychiatrist, psychologist, therapist or other health professional to:

    a)receive any written communication (including photographs) from the father addressed to either or both of the children;

    b)to read and give consideration to whether, in their professional opinion, and predominating the health, needs and best interests of the respective child and their therapeutic relationship, whether any or all such written communication or photographs should be communicated to the respective children;

    c)provide to the parties and the Independent Children’s Lawyer reasons why any particular communication or communications have, or have not, been passed on to the children in accordance with the previous sub-paragraph of this order.

12. In the absence of either or both parties providing any written authority that might be required to give effect to the preceding paragraph of this order, or in the event that either party provides any written instruction or authority to any such doctor, therapist, or other health professional contrary to the preceding paragraph, this order shall, of itself, be sufficient authority for any such person to provide any such information and shall, of itself, operate as a request for same.

IT IS NOTED that publication of this judgment under the pseudonym Collery & Collery is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3610 of 2009

MR COLLERY

Applicant

And

MS COLLERY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is the first day of the trial, within the meaning of that expression in the Family Law Rules 2004, consistent with the court’s less adversarial trial process enshrined within those Rules. Within that context, the mother seeks to have heard two Applications in a Case, one filed 4 March 2010, the second filed 25 March 2010.

2. The first of those applications seeks a number of orders, broadly described as an order that the father undertake “a full psychiatric mental health assessment” and that a report of that be made available to the persons named in the application, who are essentially the Independent Children’s Lawyer and professionals who have provided reports already in this matter.

3. That particular application also seeks orders relating to the provision of reports and parenting orders.  The orders that I am about to make will take up my conclusion is respect of those latter matters. 

4. I am not persuaded that I should make an order that the father undertake a psychiatric assessment.  I have the benefit of a report from Dr M, who is a consultant psychiatrist, instructed by the Independent Children’s Lawyer.  In that report, Dr M says of the father:

   There was no disorder of thought, mood or perception.  He did not present with psychiatric illness.

5. There is no evidentiary foundation, in my view, for ordering a further psychiatric assessment of the father (or, for that matter, the mother) in respect of matters already canvassed in the report of Dr M. 

6. I will, as will become clear, make orders that the father provide information to the Independent Children’s Lawyer with respect to any treatment which he may have undertaken in respect of what he himself acknowledges as being an anger management problem in the past. 

7. The second application in the case filed by the mother is more curious.  It seeks a number of orders, many of which are plainly incompetent or outside the jurisdiction of this court.  As one example, the mother seeks an order that: “Dr [M] and [the Independent Children’s Lawyer] pay the mother and children for a house removal and all costs associated with the move.” A further order is sought that: “A temporary order be made that the father will not be allowed in any area of the Gold Coast.”

8. For present purposes, though, it is recorded that the application seeks: “the immediate dismissal of [the Independent Children’s Lawyer].” And further in that respect, that he: “be dealt with by the court for unprofessional conduct and intimidating and demeaning behaviour – if not threatening the mother.  Mr Emerson has been interfering with evidence for the children’s case, has exposed the mother and children to careless endangerment with intent.”

9. A further order seeks that: “Dr [M] also be held accountable for her actions of exposing the mother and children to careless endangerment with intent, that Dr [M’s] psychiatric report be stricken from the court record.”

10. The application goes on to seek other orders that might be seen as incidental to those orders, for example, an order that: “a new ICL be appointed” and – “that a new psychiatrist be appointed for the parents’ psychiatric report from the Gold Coast.”

11. Other orders sought are unnecessary to be dealt with, because they will be embraced by a future trial process as and when that process occurs.  For example, the mother seeks an order that: “The mother be given the rights to write an affidavit/or alter any missing evidence in [Ms D’s] and [Mr C’s] report, also to correct any mistakes in those reports, that the mother’s emails from CYMS [S] to be stricken from the court evidence; as the information did not have the consent of the mother; or was she legally told that emails would be involved.”

12. Plainly enough, if this matter proceeds to a final hearing, the mother will have ample opportunity to present such evidence as she might wish to adduce and will obviously be accorded the opportunity to cross-examine any of the witnesses who she names (or any other witnesses) as part of that process.  She will have ample opportunity to place before the court all such evidence as she considers relevant to the issues directly affecting the best interests of these two children.

13. The theme underlying the application for the remaining orders with which it is necessary for me to deal is, it seems, that, in a briefing from the Independent Children’s Lawyer to Dr M, a number of documents were enclosed that reveal “private” information with respect to the mother and the children. 

14. There is, as it seems to me, no substance whatsoever to the assertions made by the mother.  The briefing letter to Dr M, which seems to be the centre of the complaint, contains entirely appropriate material which Dr M, or any other reporting expert, should have before him or her in providing a report as a single expert to the court.

15. An unfortunate fact of the necessity for a court to engage in parenting proceedings is that the court becomes aware of a plethora of information considered by one party or the other to be necessary to the decision about the best interests of the child.  Much of the information, including, for example, reports as to party’s psychiatric or emotional health, and the like, can be seen to be of the most private kind.  It is partly for that reason, (although there are also other reasons) why section 121 of the Act was enacted. 

16. There is no impropriety, associated with any of the information provided by the Independent Children’s Lawyer to any of the report writers, including specifically Dr M.

17. The mother’s complaint in respect of Dr M seems to be, in simple terms, that she does not agree with some of the opinions expressed by Dr M.  So much is grist for the mill in parenting cases in this court.  The mother does not file any affidavit material which cogently refers to any reasons which the court ought take into account in taking the very serious step of dismissing an Independent Children’s Lawyer. 

18. I am troubled that part, at least, of the assertion made by the mother, in respect of the Independent Children’s Lawyer, is that he has engaged in “threatening” behaviour, or behaviour which is described as “intimidating and demeaning.”  There is no affidavit evidence in support of those serious assertions.

19. Consistent with what is laid down in Division 12A of the Act relating to the conduct of proceedings of this type, I sought from the mother, who represents herself, statements from the bar table said to support those assertions.  The mother made a number of statements which will be seen in the transcript, a copy of which I will order.  None of the matters raised by the mother are, in my view, sufficient to come close to being cogent evidence of the type that would be needed in order to take the very serious step of dismissing the Independent Children’s Lawyer. 

20. Counsel for the Independent Children’s Lawyer refers, in a written document helpfully provided at the outset of the trial, to an earlier decision of mine, reported as Knibbs & Knibbs [2009] FamCA 840. In that decision, I outlined the very difficult and onerous responsibilities falling upon Independent Children’s Lawyers. I also pointed out that Independent Children’s Lawyers are almost invariably in the position where one party or the other asserts that they are either biased, not undertaking their responsibilities properly, or the like.

21. Frequently, the basis for that assertion is that the Independent Children’s Lawyer is (allegedly) supporting the case for one party rather than the other.  Although that is hinted at here, the specific assertion seems to be somewhat different in that the behaviour of the Independent Children’s Lawyer himself is said to be of the type earlier described.  No cogent evidence has been placed before the court that that is the case, and I am not satisfied that any of the matters raised by the mother, despite being given an open-ended opportunity to tell the court about any such matters as concerned her, would come close to satisfying that test.

22. Accordingly, insofar as the orders sought in the application in the case filed on 17 May 2010 seek dismissal of the Independent Children’s Lawyer, “dismissal” of Dr M, or an order that Dr M’s evidence not be used in the instant proceedings or any other proceedings, or that a new Independent Children’s Lawyer be appointed, or that a new psychiatrist be appointed, they are each and all dismissed. 

23. I will otherwise dismiss the application in the case filed on 17 May 2010, as containing applications for orders which are either incompetent or outside jurisdiction.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  1 June 2010