Dayley & Anor and Abram

[2013] FamCA 626

FAMILY COURT OF AUSTRALIA

DAYLEY AND ANOR & ABRAM [2013] FamCA 626

FAMILY LAW – CHILDREN – Application by the mother to dismiss orders – Where orders were made in the substantive proceedings to enable the child to resume a relationship with the grandparents – Expert evidence –Where the Court can take a practical approach to parenting matters including implementation – Where it is appropriate for a letter to be sent to the expert, with some amendments, to provide advice in relation to implementation of the orders made in the substantive proceedings – Where the application in a case has been made out.

Family Law Act 1975 (Cth) – Division 12A

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

1st APPLICANT: Ms Dayley

2nd APPLICANT: Mr Dayley

RESPONDENT: Ms Abram

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 6554 of 2009

DATE DELIVERED: 29 July 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 29 July 2013

REPRESENTATION

COUNSEL FOR THE 1^ST AND 2^ND APPLICANTS: Mr Tockar

SOLICITOR FOR THE 1^ST AND 2^ND APPLICANTS: Clinch Long Letherbarrow

COUNSEL FOR THE RESPONDENT: Ms De Vere

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Adams of Hamish Cumming Family Lawyers

Orders

1. That the Independent Child Lawyer write to the expert, Dr S, in the terms set out in the draft letter annexed to the Application in a Case filed on 11 December 2012 but amended at paragraph 1 as suggested by the Court.

2. That the letter to Dr S may include the report of Dr R and the other materials referred to in the draft letter as well as material produced by D Public School the subject of the subpoena.

3. That the grandparents pay the costs of Dr S in the first instance.

4. That all parties are given leave to relist these proceedings by arrangement with Johnston J’s Associate […@familycourt.gov.au].

5. That these proceedings are otherwise adjourned for mention only to 10.00 am on 3 October 2013.

6. That the Court notes that the grandparents undertake to the Court not to disseminate or provide in any form any documents prepared for or which have come into existence during the course of, and for the purpose of, these proceedings until 4.00 pm on 3 October 2013.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 6554 of 2009

Ms Dayley and Mr Dayley

Applicants

And

Ms Abram

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of Ms Abam, to whom for convenience I shall refer as “the mother”.  The mother seeks orders which would dismiss an application by Ms Dayley & Mr Dayley, to whom for convenience I shall refer as “the grandparents”.  The grandparents seek orders to the effect that Dr S, who was the Chapter 15 expert in the substantive proceedings, be approached by way of a letter from the parties to specifically provide some advice in relation to implementation of the orders.  The application which is put on behalf of the mother is that the Court is, in effect, functus, although Ms De Vere of counsel said that that is probably not an appropriate term to use in parenting proceedings.

2. In any event, the submission is that on 29 June 2012 I made orders in substantive proceedings between the mother and the grandparents of the subject child, J, born in April 2004, (“the child”).  On that occasion, after several days of hearing and much consideration, I made orders to provide appropriate opportunity for the child to be able to resume what had been a good relationship with her grandparents.  The case is a very difficult case because the mother has persisted with the attitude, for as long as I have been involved in the proceedings, that it was not in the interests of the child to continue to have a relationship with the grandparents.  Dr S indicated that in her view the grandparents had a very considerable amount to offer this child.  Clearly in Dr S’s view it would be in the child’s interests to have opportunity to try and recover her relationship, and then develop her relationship, with the grandparents.

3. Dr S said that the grandparents would be able to provide all sorts of benefits to the child.  Dr S said that the difficulty was that the mother had a personality disorder and that Dr S thought that it would be very difficult for the mother to accept a continuing relationship between the child and her paternal grandparents.  The mother’s behaviour consistently since shortly after the child’s father’s death has been behaviour opposed to the child having any time with the grandparents.  And Dr S indicated that she thought it would be very difficult indeed for the mother to be able to have the confidence and change of attitude required in order to be able to facilitate the recommended process.  So Dr S said in her report that there are a number of things which might be able to be done.

4. On the basis largely of Dr S’s evidence and having heard considerable evidence by the mother and by the grandparents in the case, I determined that it was in the child’s best interests for the child to be able to have the opportunity for some sort of therapy.  The objective was to endeavour to facilitate the position where the child would be able to spend time with the grandparents.  I made orders that a Dr R be appointed, she being a clinical psychologist and having been recommended by Dr S.  I made orders that for a period of six consecutive weekdays the child would be collected after school by the grandparents.  I made what I thought was a fairly carefully crafted program of orders setting out that the child was to see this psychologist.  The mother was under obligations under the Court orders to take the child there, on occasions if the arrangement with the grandparents failed.

5. Dr R was appointed.  There was a session or perhaps sessions with her.  As I understand it, Dr R thought such was the level of upset for the child that she discontinued her involvement in that process. 

6. It was submitted that the mother has done what she was required to do under the orders, that the parties have endeavoured to have this therapy carried out, that it has not worked and that is the end of the matter. 

7. I must say I do not see things as narrowly as that.  What I was doing was putting in place some substantive orders under which the child was to spend time with the grandparents.

8. The orders that I made in respect of Dr R were by way of implementation of that process and were put in place as, hopefully, a reasonably sensitive way to be able to achieve the child spending time with the grandparents as from 30 November last year.  As it has turned out, that has failed.  But I do not see why in those circumstances the grandparents would be unable to come back to this Court, with an Independent Children’s Lawyer having been re-appointed and seek further implementation orders.  But the mother has taken the position, as advised by her lawyers, that that is not the case.  It was submitted that the parenting proceedings concluded with those final parenting orders, that this is not just implementation but something else. 

9. I have indicated that I have a different view.  But in the event that I might be wrong about that matter, in my view, this case is one where there are important reasons, in the best interests of the child, why the grandparents and the Independent Children’s Lawyer ought to be able to make some application before the Court by way of implementation.  To the extent that it is necessary, and I do not think it is, I shall give them leave to make an oral application.

RECORDED  :  NOT TRANSCRIBED

1. The application immediately before me on this basis is an oral application that the Court deal with the application in a case which the grandparents had filed on 11 December 2012.  In substance, this seeks an order to the effect that a letter be sent to the court expert, Dr S, in the terms as set out in the application.  The Independent Children’s Lawyer agrees that it would be in the interests of the child by way of implementation of the substantive order, for the expert to be asked to consider the report of Dr R about the therapy, the other matters which have transpired since the orders were made and the questions.

2. The mother opposes an order for any such letter.  Firstly on the basis that this is not implementation, but rather it goes to substance.  For the reasons given earlier, I do not accept that submission.  The mother objects to the proposed questions for Dr S.  The first question is as follows:

   1.Do you still hold the same view as you did when you prepared your initial report and gave evidence at the hearing?

3. This would be in the context of Dr S being provided with a copy of Dr R’s report, being asked to review the report, to consider again Dr S’s own report, and to consider her own evidence.  A copy of the transcript of the relevant evidence in February 2012 would be forwarded with the letter.  Then Dr S would be asked once she had undertaken those preparatory steps to comment specifically on the first question.

4. Objection was taken to that form of question.  With respect to learned counsel for the mother, I accept that question really needs to be reframed so as to be quite specific about the views about which Dr S expressed, at least, in short form.  Obviously one cannot just go through the entirety of the evidence that she gave and the entirety of the transcript, but, in my view, that could be framed in an appropriate way. 

   2.You suggested whilst giving evidence that it may be appropriate for the child to spend some time with a foster carer.  If that remains your view, for what duration do you recommend that period of fostering be?

   3.If the child was to be fostered, do you propose that the child have any contact with the paternal grandparents during the time that she is fostered?  If you recommend that the child should have contact with the paternal grandparents during this time, for what duration and at what stage of the fostering period do you suggest this occur?

   4.During the period of fostering, if it were to occur, do you recommend that the child undertake any form of counselling and/or therapy?  If so, what type of counselling/therapy and for what duration?

   5.If the child were to undertake any form of counselling and/or therapy during the period of fostering, if it were to occur, who do you propose is an appropriate person to undertake the counselling/therapy?

   6.If the child were to be fostered, what person do you propose to give effect to the child’s move from the mother’s care to the foster carer and when should that move take place (ie at the conclusion of a school day)?  Further, should the mother have any involvement in the move from the mother’s care to the foster carer?

   7.Do you have any views as to whom the foster carer ought be?

   8.After return of the child to the mother at the conclusion of the fostering period, do you think that the mother’s behaviour will likely impact on the child, if so, in what way?  Do you recommend that anything further take place at that time?

5. There was an objection to the questions which asked whether it would be appropriate for the child to spend some time with a foster carer.  There has been some debate today about that.  Perhaps it is unfortunate that an expression such as “foster carer” was used because that seems to connote a different jurisdiction and all the problems that would be associated with that.  As I indicated earlier in the day, the expression “foster carer” was an expression that Dr S herself raised.  It was in the context that she thought so serious might be the consequences for the child if she was not able to have a relationship with her grandparents, that the Court might consider by way of implementing orders for the child to spend time with her grandparents, that the child be removed from her mother’s care and placed with some other persons for a period.  Dr S envisaged such persons could then facilitate time between the child and her grandparents.

6. It might have been better to use the expression “other carers” or “other persons” or even “child supervisors” rather than that expression.  In any event, the substance, of the objection made by Ms De Vere is that this does not go to implementation.  Ms De Vere submits that this goes to the substance because implicit in it is a situation where the child would be removed from the mother’s care. 

7. I must say I have a different view about that matter.  In the circumstances, removal of a child from its parent to enable the child to be able to have a relationship with another person on the basis that it would be removal for a defined period, in my view, can go to implementation rather than to substance.  So I do not accept that it is objectionable on that basis.  In my view, again, that matter would go to implementation.  The other questions which are really on the basis of this concept of the child being removed from mother and placed with some other person, so that arrangements could then be made for the child to be able to be reintroduced to the grandparents, are all part of the same sort of matter.  I do not accept the objection.

8. The other objection was an objection to Dr R’s report being made available to Dr S.  The first basis was that there would be questions about whether she is appropriately qualified as an expert under the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. The second objection was based on the form. My view about this matter is that I do not have a difficulty with this material being provided on the basis that these proceedings involve Division 12A. There is a special nature to these parenting proceedings and the Court is able under the legislation to take a practical approach to these matters, including implementation. In my view, the objection cannot be sustained.

9. So the view that I have reached about the application is that it is appropriate at this stage for a letter similar to this letter, but with some amendment of question 1 to give Dr S a precise idea about which areas of her views as expressed would form the starting point for any different view that she might have reached.  In my view, the application in a case has been made out.  The matter at this point goes no further than simply providing Dr S with the letter.  What might transpire after Dr S has had this opportunity one can only speculate about at this point.

I certify that the preceding eighteen (18) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 29 July 2013.

Associate:     

Date:              27 August 2013