DFCS and Jordan and Anor

[2015] FamCA 983

FAMILY COURT OF AUSTRALIA

DFCS & JORDAN AND ANOR [2015] FamCA 983

FAMILY LAW – PROCESS AND PROCEDURE – paternity test to be released to parties – Family Report to be produced

APPLICANT: Department of Family and Community Services

RESPONDENT MOTHER: Ms Jordan

RESPONDENT FATHER: Mr Tijani

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 442 of 2007

DATE DELIVERED: 22 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 22 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGorey

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

SOLICITOR FOR RESPONDENT MOTHER:	Andrew Harris & Associates
THE RESPONDENT FATHER:	In Person
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adams & Partners

Orders

IT IS ORDERED

1. That the paternity testing report be released to the parties.

2. That orders 1, 2, 3, 5, 6 and 9 of the orders made on 12 August 2015 in relation to the child K born … 2005 be varied to substitute the name ‘Ms B’ or ‘Ms B’ the name ‘Ms C psychologist or other appropriate psychologist nominated by the independent children’s lawyer’.

3. That the first day of the Less Adversarial Trial before the Honourable Justice Rees be listed at 10am on 19 May 2016.

4. That pursuant to s 62G of the Family Law Act 1975 (Cth) a Family Report be prepared by a Family Consultant nominated by the Manager of Child Dispute Services AND IT IS REQUESTED that the interviews for the preparation of the report NOT take place before 1 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DFCS & Jordan and Anor 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 SYDNEY

FILE NUMBER: SYC 442 of 2007

Department of Family and Community Services

Applicant

And

Ms Jordan

Respondent Mother

And

Mr Tijani

Respondent Father

REASONS FOR JUDGMENT

1. The issue for determination before the Court is the identity of an appropriate counsellor for the child K (“the child”).  There is no issue between Mr Tijani (“the father”) and Ms Jordan (“the mother”) that there should be counselling for the child.  Orders have been made on previous occasions for specific counsellors to be appointed.

2. In May 2015, the nominated counsellor was not available and it was necessary for those orders to be varied to nominate a substitute counsellor, Ms B.  Ms B was not available to conduct the counselling and the Wellbeing Clinic, who is the employer of both of the nominated counsellors has suggested a further counsellor, Ms C.

3. The Independent Children’s Lawyer (“ICL”) asks the Court to make orders which would allow Ms C to be the child’s therapist and, if Ms C should for any reason not be able to continue in that role, for an alternate therapist to be appointed by the ICL.

4. The father objects to the appointment of Ms C as a counsellor for the child because the referral, which was obtained by the mother, from the Suburb D Family Medical Practice to the Wellbeing Clinic for the child, is expressed in the following terms “Thank you for seeing the child, aged 10 years, regarding – has? Sexual abuse history and PTSD.  Some attention and concentration span issues as well.”

5. The father objects to the appointment of Ms C on the basis that, he submits, the terms of the referral will limit the work that would be able to be done with the child to work relating to a possibility of sexual abuse and post traumatic stress disorder.

6. The father has ventilated those concerns with Ms E, who is the director of the Wellbeing Clinic.  Ms E, in response to the father’s concerns, said to the father, in an email dated 1 October 2015, the following:

   Psychological practice is a very broad field and psychologists have an ethical requirement to ensure they work only with psychological issues for which they have specific competence which necessarily means that psychologists recognise their own professional limitations.  When clients are booked in with psychologists they are done so with information provided at the time.  Occasionally further information is provided prior to the appointment, as occurred in this case.  Upon receiving that further information, a review is undertaken by the clinical director and by the psychologist the client has been referred to, on this occasion [Ms B], to ensure that the referral is an appropriate one.  Both [Ms B] and myself reviewed the additional detail and recognised that some aspects of the psychological presentation were outside [Ms B’s] area of psychological competence meaning it would have been professionally unethical of [Ms B] to accept this referral.  As such we reviewed our other psychologists and determined that [Ms C] would be appropriate given her specific areas of training experience. 

7. I pause to note that when that email was written on 1 October 2015, the Wellbeing Clinic had been in possession, since 21 August 2015, of the documents which had been forwarded to them by the ICL which included an affidavit filed on behalf of the Department of Family and Community Services, three affidavits filed on behalf of the father and three affidavits filed on behalf of the mother.  The affidavit filed on behalf of the father annexed the reports prepared by the independent expert, Dr F, specifically in relation to allegations of sexual abuse, and the judgment of the Local Court in apprehended domestic violence proceedings in relation to the father and the child.

8. Thus, it was the case that when the determination was made, that Ms C was a more appropriate therapist for the child, the Wellbeing Clinic was in possession of a great deal of evidence about the conflicting issues that concern her. 

9. In a further email on 6 October 2015, Ms E wrote to the father as follows:

   I really do appreciate your concerns around “pre-determination” and can only reiterate again that a psychologist will conduct their own assessment and determine treatment based on the outcome of such.

10. Ms E went on to say:

    [Ms C] has a wider range of experience in a number of psychological competencies than [Ms B] and given the complexities of this case before the child has even attended, it was considered the wider experience in a number of psychological competencies would be most appropriate.  It does not, in any way, suggest that there is any pre-determination of treatment.  Simply that [Ms C] will be competent with a wider number of presentation issues.

11. The father has provided the names of two suggested additional counsellors, Ms G and Ms H.  Those names were only provided yesterday.  According to the father, from the bar table, he has had extensive discussions of this matter with Ms G, which did not include the Department of Family and Community Services, the mother or the ICL and on that basis alone, Ms G would be unsuitable to be nominated.  There is no information before the Court about Ms H’s qualifications.

12. In my view, the father’s concerns about the pre-determination of the treatment for the child should have been allayed by the emails which have been forwarded to him by Ms E and I accept the assurances contained in those emails that Ms C will treat the child according to Ms C’s assessment of the child’s needs, rather than for any predetermined purposes.

13. This is the third time that the issue of a suitable therapist for the child has come before the Court, as a result of which the child has been denied treatment which she very clearly needs and needs urgently.  I am advised by the ICL that Ms C is available to commence therapy with the child immediately and I propose to make the order which is sought by the ICL.

14. In order to prevent yet another difficulty in the child commencing counselling, I also propose to make an order that in the event that, for any reason, Ms C is unavailable the independent children's lawyer can nominate an alternative counsellor. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees J delivered on 22 October 2015.

Associate:

Date:  22 October 2015